- 941 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

North Star Mutual Insurance Company, appellee and 

cross-appellant, v. Jerry Miller and David Miller, 

doing business as Old Mill Bulk Foods, 

appellants and cross-appellees.

___ N.W.2d ___

Filed July 8, 2022. No. S-21-505.

1. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record 

disclose that there is no genuine issue as to any material fact or as to 

the ultimate inferences that may be drawn from those facts and that the 

moving party is entitled to judgment as a matter of law.

2. Insurance: Contracts: Appeal and Error. The interpretation of an 

insurance policy is a question of law, in connection with which an appellate court has an obligation to reach its own conclusions independently 

of the determination made by the lower court.

3. Appeal and Error. Plain error is error plainly evident from the record 

and of such a nature that to leave it uncorrected would result in damage 

to the integrity, reputation, or fairness of the judicial process.

4. Insurance: Contracts: Intent. An insurance policy is a contract and is 

to be construed as any other contract to give effect to the parties’ intentions at the time the contract was made.

5. Insurance: Contracts: Words and Phrases. An insurance policy is 

ambiguous when a word, phrase, or provision in the contract has, or is 

susceptible of, at least two reasonable but conflicting interpretations or 

meanings.

6. Insurance: Contracts. A court will not read an ambiguity into policy 

language which is plain and unambiguous in order to construe it against 

the insurer.

7. ____: ____. When interpreting the plain meaning of the terms of an 

insurance policy, the natural and obvious meaning of the provisions in 

a policy is to be adopted in preference to a fanciful, curious, or hidden 

meaning.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/09/2022 08:06 AM CDT
- 942 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

8. Rules of the Supreme Court: Appeal and Error. Depending on the 

particulars of each case, failure to comply with the mandates of Neb. 

Ct. R. App. P. § 2-109(D) (rev. 2021) may result in an appellate court 

waiving the error, proceeding on a plain error review only, or declining 

to conduct any review at all.

9. ____: ____. A cross-appeal must be properly designated, pursuant to 

Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2021), if affirmative relief is to 

be obtained.

10. ____: ____. A cross-appeal is properly designated by noting it on the 

cover of the appellee brief and setting it forth in a separate division of 

the brief.

11. Attorney Fees. Attorney fees and expenses may be recovered in a civil 

action only where provided for by statute or when a recognized and 

accepted uniform course of procedure has been to allow recovery of 

attorney fees.

12. Attorney Fees: Insurance. Neb. Rev. Stat. § 44-359 (Reissue 2021) is 

a fee-shifting statute which permits a successful litigant to recover attorney fees as a part of the judgment in certain actions against insurance 

companies.

Appeal from the District Court for Cherry County: Mark D. 

Kozisek, Judge. Affirmed in part, vacated in part, and in part 

reversed and remanded with directions.

Todd R. McWha and Jonathan Peiffer, of Waite & McWha 

Law Firm, for appellants.

Jonathan M. Brown, of Walentine O’Toole, L.L.P., for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Jerry Miller and David Miller, doing business as Old 

Mill Bulk Foods (Old Mill), operated a deli/grocery store 

in a building it rented in Valentine, Nebraska, which was 

the covered premises. On July 2, 2018, a fire destroyed the 
- 943 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

covered premises, and thereafter, Old Mill elected to renovate 

another building in which to relocate its business. Old Mill 

had an insurance policy through North Star Mutual Insurance 

Company (North Star) and sought $159,878.53, in addition 

to other reimbursements, under the policy’s “Extra Expense” 

provision. North Star denied coverage for the extra expenses 

and filed a declaratory judgment action to determine the parties’ rights and obligations under the policy. The district court 

granted summary judgment, denying the extra expenses, and 

Old Mill appealed. We affirm in part, vacate in part, and in part 

reverse and remand with directions.

BACKGROUND

North Star issued the insurance policy to Old Mill, effective 

for a 1-year period beginning on November 21, 2017, and ending on November 21, 2018 (hereafter the Policy).

After the fire destroyed the deli/grocery store, which was the 

covered premises, Old Mill elected not to repair or rebuild it. 

As a result, Old Mill searched for a replacement property for 

lease in order to resume operations. Being unable to find anything suitable, Old Mill informed North Star that Miller Land 

Enterprises, LLC, owned by Jerry, David, and Mary Miller, 

intended to purchase a defunct movie theater in Valentine 

and lease it to Old Mill. Miller Land Enterprises purchased 

the replacement property on April 10, 2019, and subsequently 

entered into a rental agreement with Old Mill to operate the 

grocery store at the new location. The replacement property 

required substantial modification and renovation to make it 

suitable as a grocery store, including work to level the floors, 

remove walls and relocate walls, install flooring, install lighting and outlets, and install sinks.

During renovations, Old Mill submitted claims for loss to 

North Star under the terms of the Policy. The Policy provides 

for certain areas of coverage, including “Business Personal 

Property,” “Business Income,” and “Extra Expense.” Pursuant 

to the terms of the Policy, North Star paid Old Mill $89,050 
- 944 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

for business personal property coverage and $199,212 for business income coverage.

Old Mill also sought $159,878.53 it spent in converting the 

replacement property into a deli/grocery store under the “Extra 

Expense” coverage. The claimed expenses included $38,600 

for electrical improvements to the replacement premises, 

$53,167.50 for other necessary improvements to the replacement premises, $36,884.15 for materials used in the improvements of the replacement premises, $19,500 for plumbing 

improvements to the replacement premises, and $4,600 for a 

walk-in cooler.

The “Extra Expense” provision of the Policy states, in pertinent part:

A. Coverage

. . . .

5. Additional Coverages

. . . .

g. Extra Expense

(1) We will pay necessary Extra Expense you incur 

during the “period of restoration” that you would not 

have incurred if there had been no direct physical loss or 

damage to property at the described premises. The loss 

or damage must be caused by or result from a Covered 

Cause of Loss. . . .

. . . .

(2) Extra Expense means expense incurred:

(a) To avoid or minimize the suspension of business 

and to continue “operations”:

(i) At the described premises; or

(ii) At replacement premises or at temporary locations, 

including relocation expenses, and costs to equip and 

operate the replacement or temporary locations.

(b) To minimize the suspension of business if you cannot continue “operations”.

(c) To:

(i) Repair or replace any property; or
- 945 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

(ii) Research, replace or restore the lost information on 

damaged “valuable papers and records”;

to the extent it reduces the amount of loss that otherwise 

would have been payable under this Additional Coverage 

or Additional Coverage f. Business Income.

. . . .

(4) . . . This Additional Coverage is not subject to the 

Limits of Insurance of Section I-Property.

North Star denied Old Mill’s claim, maintaining that 

expenses incurred to convert the replacement property into a 

deli/grocery store are not covered under the “Extra Expense” 

provision of the Policy, and subsequently filed its complaint 

for declaratory judgment, arguing the same. In response, Old 

Mill filed an answer and counterclaim, alleging breach of 

contract, breach of the implied covenant of good faith and fair 

dealing, and bad faith. Eventually, both parties moved for summary judgment.

The district court acknowledged two out-of-state cases cited 

by the parties: Thompson v. Threshermen’s Mut. Ins. Co. 1

and Midwest Regional Allergy v. Cincinnati Ins. Co. 2 North 

Star argued the former controlled the present case, while Old 

Mill argued the latter case controlled. The court rejected both 

arguments.

The court found the policy provisions were ambiguous, 

determining that there are two reasonable, but conflicting interpretations of the “Extra Expense” provision in the Policy:

• [I]t provides coverage for the costs associated with 

starting the business at a replacement location, including 

structural modifications and the mechanical, electrical and 

plumbing installation/modifications to the newly acquired 

premises at the replacement location, or

1 Thompson v. Threshermen’s Mut. Ins. Co., 172 Wis. 2d 275, 493 N.W.2d 

734 (Wis. App. 1992).

2 Midwest Regional Allergy v. Cincinnati Ins. Co., 795 F.3d 853 (8th Cir. 

2015).
- 946 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

• [I]t limits coverage to the costs for replacement and 

relocation of personal business property necessary to 

carry on business at the new location.

In light of its finding of ambiguity, the trial court proceeded 

to define the phrase “to equip” as meaning to “provide someone or something with objects that are needed for a particular 

activity or purpose.” And, further, determined that the word 

“equip” refers to objects, such as refrigerators, stoves, and 

coolers, and not “walls, floors and bathrooms.” In doing so, 

the court found that the “[E]xtra [E]xpense” coverage was limited to expenses incurred to avoid or minimize the suspension 

of business at the replacement property, including relocation 

expenses and costs to equip and operate at the new location. 

In other words, the coverage encompassed the continuance of 

operations or business activities at the replacement premises, 

but did not provide coverage for the acquisition of the replacement location or improvements and/or modifications made at 

the replacement location.

The court concluded that at the time the Policy was issued, 

the parties did not expect or intend that North Star would insure 

Old Mill against the loss of the location where it conducted its 

business, and further, the parties did not agree to provide whatever was necessary for Old Mill to commence operations at a 

new location. However, because North Star agreed to pay the 

costs to relocate and equip the replacement premises, the court 

found that North Star was contractually obligated to pay for 

the walk-in cooler.

Accordingly, the district court granted North Star’s complaint for declaratory judgment to the extent that the court 

found that the Policy does not require North Star to provide 

coverage to Old Mill for electrical improvements, structural 

work associated with conversion of the replacement premises, 

materials associated with the improvements, and plumbing 

improvements. The district court also granted Old Mill’s 

counterclaim to the extent that the court entered judgment 
- 947 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

against North Star in the amount of $4,600 for the walk-in 

cooler.

Old Mill requested attorney fees in the amount of $33,797.99. 

The court determined that such request was not reasonable 

because North Star had a reasonable basis for denying Old 

Mill’s claim, and instead, the court found that a reasonable 

attorney fee was $5,000 and awarded such to Old Mill.

ASSIGNMENTS OF ERROR

Old Mill assigns, restated, that the district court erred in 

(1) finding that the “‘Extra Expense’” provision of the Policy 

does not cover improvements made to convert and equip the 

replacement building and (2) awarding only $5,000 of the 

requested $33,797.99 in attorney fees.

On cross-appeal, North Star assigns, restated, that the district court erred in (1) determining the Policy provisions to be 

ambiguous, (2) determining that the walk-in cooler was covered under the “‘Extra Expense’” provision of the Policy, and 

(3) awarding attorney fees to Old Mill.

STANDARD OF REVIEW

[1] Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record 

disclose that there is no genuine issue as to any material fact 

or as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. 3

[2] The interpretation of an insurance policy is a question 

of law, in connection with which an appellate court has an 

obligation to reach its own conclusions independently of the 

determination made by the lower court. 4

3 American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 

(2002).

4 Id.
- 948 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

[3] Plain error is error plainly evident from the record and 

of such a nature that to leave it uncorrected would result in 

damage to the integrity, reputation, or fairness of the judicial process. 5

ANALYSIS

The Policy

The parties have narrowly framed the central issue before 

this court as whether the claims Old Mill has asserted against 

North Star are covered under the “Extra Expense” provision 

of the Policy as expenses “to equip” the replacement property. 

This framing necessarily limits our analysis of the Policy to the 

issue of coverage as defined by the definition of “to equip” and 

omits the impact, if any, of policy exclusions and definitions 

which have not been argued on appeal. These omissions do not 

survive this narrow framing.

The district court found that the Policy, particularly the 

definition of “to equip,” was ambiguous, but then proceeded to 

construe the Policy in favor of North Star. We agree with the 

district court that the Policy is ambiguous, but we disagree as 

to how the Policy should be construed.

[4] An insurance policy is a contract and is to be construed 

as any other contract to give effect to the parties’ intentions at 

the time the contract was made. 6 When the terms of a contract 

are clear, a court may not resort to rules of construction, and 

the terms are to be accorded their plain and ordinary meaning 

as the ordinary or reasonable person would understand them. 7

In such a case, a court shall seek to ascertain the intention of 

the parties from the plain language of the policy.

5 Humphrey v. Smith, ante p. 632, 974 N.W.2d 293 (2022).

6 See American Fam. Mut. Ins. Co., supra note 3.

7 See Mahoney v. Union Pacific RR. Emp. Hosp. Assn., 238 Neb. 531, 471 

N.W.2d 438 (1991) (citing Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 

468 N.W.2d 105 (1991)).
- 949 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

[5-7] Whether a policy is ambiguous is a matter of law for 

the court to determine. 8 An insurance policy is ambiguous 

when a word, phrase, or provision in the contract has, or is 

susceptible of, at least two reasonable but conflicting interpretations or meanings. 9 However, we will not read an ambiguity into policy language which is plain and unambiguous in 

order to construe it against the insurer. 10 But, when interpreting the plain meaning of the terms of an insurance policy, we 

have repeatedly stated that the natural and obvious meaning 

of the provisions in a policy is to be adopted in preference to 

a fanciful, curious, or hidden meaning. 11

Here, the Policy provides that North Star “will pay necessary Extra Expense [Old Mill] incur[s] during the ‘period of 

restoration’ that [it] would not have incurred if there had been 

no direct physical loss or damage to property at the described 

premises.” The Policy defines the term “Extra Expense” to 

mean, in part, “expense incurred . . . [t]o avoid or minimize 

the suspension of business and to continue ‘operations’ [at] 

replacement premises or at temporary locations, including relocation expenses, and costs to equip and operate the replacement or temporary locations.” However, the Policy does not 

provide a definition of what it means “to equip.”

Old Mill asserts that the meaning of “costs to equip” encompasses the costs of appliances, as well as the costs associated 

with preparing a structure to house those appliances, such as 

structural alterations. Despite North Star’s argument to the 

contrary, we agree with Old Mill that the meaning of “costs 

to equip,” as used in the Policy, is ambiguous inasmuch as “to 

equip” is susceptible of at least two reasonable constructions, 

8 See id.

9 Poulton v. State Farm Fire & Cas. Cos., 267 Neb. 569, 675 N.W.2d 665 

(2004).

10 See, id.; American Fam. Mut. Ins. Co., supra note 3.

11 See Katskee v. Blue Cross/Blue Shield, 245 Neb. 808, 515 N.W.2d 645 

(1994).
- 950 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

namely, whether or not the term encompasses substantial modifications made to a replacement location.

Insurance companies in drafting their policies formulate 

language which may either prevent or create ambiguity. 12 In 

such draftsmanship, precision provides certainty, while the 

absence of articulation accounts for ambiguity. 13 An ambiguous policy will be construed in favor of the insured so as to 

afford coverage. 14

The Policy provides coverage for expenses incurred to 

avoid or minimize the suspension of business and to continue 

operations at the replacement location, including costs to 

equip and operate the replacement location. Examining this 

provision through the eyes of a reasonable person, the objective standard to determine the meaning of language in an 

insurance policy, 15 to “equip” has a rather ordinary meaning: 

“to make ready” or “to furnish for service or action by appropriate provisioning.” 16

North Star seems to take the position that the Policy 

does not provide coverage for remodeling expenses. However, 

nowhere does the Policy caution the insured that its definition 

of “to equip” differs from a “plain and ordinary” definition 

expressed in a standard dictionary, nor does it specifically 

exclude coverage for what may be considered structural modification or remodeling expenses. Thus, reading the Policy 

from the insured’s point of view, we adopt the natural and 

obvious meaning of the provisions in a policy in preference to 

the hidden meaning suggested by North Star 17 and hold that 

12 Denis v. Woodmen Acc. & Life Co., 214 Neb. 495, 334 N.W.2d 463 (1983).

13 Id.

14 See id. See, also, American Fam. Mut. Ins. Co., supra note 3.

15 See Decker v. Combined Ins. Co. of Am., 244 Neb. 281, 505 N.W.2d 719 

(1993).

16 “Equip,” Merriam-Webster.com, http://www.merriam-webster.com/diction

ary/equip (last visited July 2, 2022).

17 See Katskee, supra note 11.
- 951 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

for purposes of the Policy, the word “equip” means to make 

ready or to furnish for service or action by appropriate provisioning and necessarily encompasses expenses incurred in 

modifying a replacement premises in order to continue operations, such as costs associated with electrical improvements, 

plumbing improvements, structural improvements, and mate

rials used in those improvements.

This court is not alone in its determination. In Midwest 

Regional Allergy,

 18 the Eighth Circuit Court of Appeals considered whether costs to repair and relocate an MRI machine 

were covered by an identical extra expense provision in an 

insurance policy. The insured in Midwest Regional Allergy

operated a medical practice, which used specialized medical 

equipment, including an MRI machine, as part of its normal 

business operations. When a tornado destroyed the building, 

the insured elected to permanently relocate his medical practice 

to a different building which required substantial construction 

and modification in order to house the specialty medical equipment. In particular, it was necessary to reinforce the floors 

with concrete and remove and replace exterior brick, as well 

as install pipe, specialized heating and air conditioning equipment, and copper shielding in the walls, door, and ceiling. The 

insurer denied coverage for the expenses to repair and relocate 

the MRI equipment. The trial court found the claimed expenses 

were recoverable under the extra expense provision, and alternatively, the policy was ambiguous and therefore should be 

read as providing coverage.

On appeal, the Eighth Circuit concluded, in part, that it was 

reasonable to construe the policy to authorize coverage for 

claimed expenses, including the installation expenses associated with the MRI machine as costs to relocate the business 

to the replacement location. 19 The court further noted that 

although the nature of the insured’s business and the extent of 

18 Midwest Regional Allergy, supra note 2.

19 Id.
- 952 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

the damage necessitated substantial relocation expenses and 

significant costs to equip and operate the replacement property, 

this was not a factor in determining whether coverage existed 

under the extra expense provision of the policy. 20

North Star directs us to the Wisconsin case of Thompson.

 21

In Thompson, a case factually similar to the case presently 

before us, the Wisconsin Court of Appeals considered the 

meaning of the phrase “costs to equip and operate the replacement locations” as used in an identical extra expense provision 

in an insurance policy. The insureds in Thompson operated a 

grocery store out of a rented building. When a fire destroyed 

the building and the building’s owners chose not to rebuild, the 

insureds built a new structure to house the grocery store. The 

insureds then sought additional coverage under their policy’s 

extra expense provision for expenses incurred for an insurance 

premium, building permit, refrigeration equipment, furnace 

installation, plumbing, electrical work, gas hookup, payroll, 

refuse removal, and a new sign.

The appellate court determined that the extra expense provision was ambiguous and that such expenses were not covered 

under the policy’s extra expense provision. The court then 

reasoned that despite being ambiguous, the insurance policies 

should be construed in accordance with what a reasonable person in the position of the insured would have understood them 

to mean. In doing so, the court noted that the extra expenses 

were for items previously owned by the insureds or for items 

that their landlord would have owned previous to the fire. The 

court explained that the former items were covered by the bulk 

of the policy and that neither party contemplated additional 

coverage for such items under the extra expense provision of 

the policy. The court further explained that the latter items were 

items for which the insured was paying rent and would have 

continued to pay rent. Thus, if it were to construe coverage 

20 Id.

21 Thompson, supra note 1.
- 953 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

for such items under the extra expense provision, the insured 

would receive ownership of a new building as payoff from 

their insurance policy, which would lead to an absurd result.

Unlike the insured in Thompson, here, Old Mill did not 

construct an entirely new building. Although the nature of 

the replacement premises necessitated substantial relocation 

expenses and significant costs to equip and operate the replacement premises, this is not a factor in determining whether 

coverage exists under the “Extra Expense” provision of the 

Policy. 22 Consequently, we find Thompson to be unpersuasive 

under the circumstances.

Concluding that the Policy is ambiguous and therefore construing it in favor of Old Mill, we determine as a matter of 

law that the “Extra Expense” provision of the Policy provides 

coverage for costs associated with electrical improvements, 

plumbing improvements, structural improvements, and mate

rials associated with those improvements that were done to the 

replacement premises. The district court thus erred in granting 

North Star’s motion for summary judgment. With regard to 

this particular assignment of error, we reverse the decision of 

the district court and remand the cause with directions that the 

district court enter summary judgment in favor of Old Mill for 

the claimed extra expenses.

Cross-Appeal

On cross-appeal, North Star argues the district court erred 

in finding the cost of the walk-in cooler was covered under the 

“Extra Expense” provision of the Policy. We disagree.

[8] As an initial matter, we note that generally, parties who 

wish to secure appellate review of their claims must abide by 

the rules of the Nebraska Supreme Court. 23 Any party who fails 

22 See Midwest Regional Allergy, supra note 2.

23 Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 

N.W.2d 378 (2021), disapproved on other grounds, Clark v. Sargent Irr. 

Dist., ante p. 123, 971 N.W.2d 298 (2022).
- 954 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

to properly identify and present its claim does so at its own 

peril. 24 Depending on the particulars of each case, failure to 

comply with the mandates of Neb. Ct. R. App. P. § 2-109(D) 

(rev. 2021) may result in an appellate court waiving the error, 

proceeding on a plain error review only, or declining to conduct any review at all. 25

[9,10] A cross-appeal must be properly designated, pursuant to § 2-109(D)(4), if affirmative relief is to be obtained. 26

A cross-appeal is properly designated by noting it on the cover 

of the appellee brief and setting it forth in a separate division 

of the brief. 27 This separate section “shall be headed ‘Brief 

on Cross-Appeal’ and shall be prepared in the same manner and under the same rules as the brief of appellant. See 

§ 2-109(D)(1)” 28 Under § 2-109(D)(1)(b) through (i), the brief 

of appellant must include, in part, a (1) statement of the basis 

of jurisdiction, (2) statement of the case, (3) separate assignment of errors section, (4) propositions of law, (5) statement 

of facts, (6) summary of the argument, and (7) the argument.

Here, North Star’s purported cross-appeal fails to fully abide 

with the rules for the brief of an appellant because its brief 

on cross-appeal fails to set forth a separate (1) statement of 

the basis of jurisdiction on cross-appeal, (2) statement of the 

case on cross-appeal, (3) assignments of error on cross-appeal, 

(4) propositions of law on cross-appeal, (5) statement of facts 

on cross-appeal, and (6) summary of the argument on crossappeal. The decisive particulars governing how we treat failures to fully abide with the rules for the brief of an appellant 

depend on the nature of the noncompliance. 29 In this appeal, 

we elect to proceed to review for plain error.

24 Id.

25 Id.

26 Id.

27 § 2-109(D)(4). See Great Northern Ins. Co., supra note 23.

28 § 2-109(D)(4).

29 See § 2-109(D)(1).
- 955 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

Plain error is error plainly evident from the record and 

of such a nature that to leave it uncorrected would result in 

damage to the integrity, reputation, or fairness of the judicial 

process. 30 Here, because we have determined that the language 

of the “Extra Expense” provision is ambiguous and should 

accordingly be construed in favor of Old Mill, the district court 

did not commit plain error when it found that the cost associated with the walk-in cooler was a cost to equip and operate 

the replacement premises covered by the Policy. Thus, this 

assignment of error is without merit.

Attorney Fees

[11,12] Based on its findings, the district court awarded 

Old Mill $5,000 of its requested $33,797.99 in attorney fees. 

Old Mill argues the court erred in failing to award it the 

full amount of its requested attorney fees. As a general rule, 

attorney fees and expenses may be recovered in a civil action 

only where provided for by statute or when a recognized and 

accepted uniform course of procedure has been to allow recovery of attorney fees. 31 Neb. Rev. Stat. § 44-359 (Reissue 2021) 

is a fee-shifting statute which permits a successful litigant 

to recover attorney fees as a part of the judgment in certain 

actions against insurance companies. 32 Section 44-359 provides 

in pertinent part:

In all cases when the beneficiary or other person entitled thereto brings an action upon any type of insurance 

policy . . . the court, upon rendering judgment against 

such company, person, or association, shall allow the 

plaintiff a reasonable sum as an attorney’s fee in addition 

to the amount of his or her recovery, to be taxed as part 

of the costs.

30 Great Northern Ins. Co., supra note 23.

31 Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).

32 Young v. Midwest Fam. Mut. Ins. Co., 276 Neb. 206, 753 N.W.2d 778 

(2008).
- 956 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

We have further explained that where an insurer brings an 

action for declaratory judgment to have coverage determined 

and the insured prevails, the latter is entitled to attorney fees 

under § 44-359. 33

In this case, the record supports an inference that the court 

denied the majority of Old Mill’s attorney fees, not because 

of lack of evidence of value, but because it considered that 

Old Mill, as a matter of law, was not entitled to a full award 

of attorney fees under § 44-359. Because we have determined 

that the district court should have construed the Policy in favor 

of Old Mill and determined that Old Mill is entitled to all of 

its claimed expenses under the “Extra Expense” provision of 

the Policy, it is necessary to remand the cause back to the trial 

court to reconsider its award of attorney fees in light of our 

determination as to coverage.

To determine proper and reasonable attorney fees, it is 

necessary for the court to consider the nature of the litigation, the time and labor required, the novelty and difficulty 

of the questions raised, the skill required to properly conduct 

the case, the responsibility assumed, the care and diligence 

exhibited, the result of the suit, the character and standing of 

the attorney, and the customary charges of the bar for similar 

services. 34 There is no presumption of reasonableness placed 

on the amount of attorney fees offered by the party requesting 

fees. 35 The amount of an attorney fee awarded under § 44-359 

is addressed to the discretion of the trial court, whose ruling 

will not be disturbed on appeal in the absence of an abuse 

of discretion. 36

33 See State Farm Mut. Auto. Ins. Co. v. Selders, 189 Neb. 334, 202 N.W.2d 

625 (1972).

34 Young, supra note 32.

35 Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d 750 

(1997).

36 Muller v. Tri-State Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997).
- 957 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NORTH STAR MUT. INS. CO. v. MILLER

Cite as 311 Neb. 941

CONCLUSION

For the reasons discussed herein, we reverse the district 

court’s order granting summary judgment with respect to the 

claim for electrical improvements, structural work, materials, 

and plumbing improvements and remand the cause with directions to the district court to enter summary judgment in favor 

of Old Mill as to the claimed extra expenses. We affirm, however, the district court’s order granting summary judgment with 

respect to the claim for the walk-in cooler. As to the issue of 

attorney fees, we vacate the court’s order and remand the cause 

for reconsideration by the trial court.

Affirmed in part, vacated in part, and in part 

reversed and remanded with directions.