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299 Nebraska Report

ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.

Cite as 299 Neb. 180

Zweiback Family Limited Partnership et a

appellees, v. Lincoln Benefit Li

and Brian Schuster, appellee

Dennis Tubbergen, appe

___ N.W.2d ___

Filed March 2, 2018. No. S-17-324.

1. Arbitration and Award: Judgments: Appeal and Error. Arbitrability 

presents a question of law. On a question of law, an appellate court 

reaches a conclusion independent of the court below.

2. Arbitration and Award. A party cannot be required to submit a dispute 

to arbitration unless he or she has agreed to do so.

3. Contracts: Arbitration and Award. Arbitration is purely a matter 

of contract.

Appeal from the District Court for Douglas County: Horac

J. Wheelock, Judge. Affirme

Gerald L. Friedrichsen, of Fitzgerald, Schorr, Barmettler & 

Brennan, P.C., L.L.O., for appellant.

Edward D. Hotz, of Pansing, Hogan, Ernst & Bachman, 

L.L.P., for appellees.

Heavican, C.J., Cassel, Stacy, and Kelch, JJ., and 

Judge.

Stacy, 

The district court denied a motion to compel arbitration, reasoning the agreement to arbitrate “concern[ed] or 

relat[ed] to an insurance policy” and thus was unenforceable 

Nebraska Supreme Court Online Library

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

04/26/2018 09:12 AM CDT
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ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.

Cite as 299 Neb. 180

under Nebraska law.1 We affirm, although for different 

reasons.

FACTS

Eugene M. Zweiback is the named insured under two variable life insurance policies issued by Lincoln Benefit Life 

Company (LBL). Zweiback is also the general partner of two 

partnerships named as plaintiffs in this lawsuit. Zweiback 

alleges that in 2004, he consulted two authorized agents or brokers of LBL, Dennis Tubbergen and Brian Schuster, and told 

them he wanted to purchase a life insurance policy. Zweiback 

wanted a policy with a one-time premium of approximately 

$1 million that would continue to finance the ongoing cost of 

insurance during his lifetime and then pay a large benefit upon 

his death, regardless of his age.

In 2005, Zweiback applied for and was issued two LBL life 

insurance policies; the death benefit of each was $10 million. 

Zweiback alleges both Tubbergen and Schuster advised him on 

multiple occasions that the LBL policies satisfied Zweiback’s 

conditions. Zweiback paid premiums of approximately $1 million for the policies, and he alleges Tubbergen and Schuster 

received substantial commissions on the sale of the policies. 

He also alleges he did not know the policies were variable 

life insurance policies or that the ability of the policies to pay 

future insurance costs without additional premiums depended 

on the performance of underlying investments.

Approximately 1 year later, in October 2006, the face values of both LBL policies were lowered from $10 million to 

$3.5 million. Zweiback alleges this was done after the date 

upon which Tubbergen and Schuster would have to return 

earned commissions. In June 2012, Zweiback was informed by 

LBL that additional premiums were due to keep the policies in 

force. Instead of paying additional premiums, Zweiback chose 

to reduce the face value of both policies to $2 million.

1 Neb. Rev. Stat. § 25-2602.01(f)(4) (Reissue 2016).
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ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.

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In August 2014, Zweiback and the partnerships (collectively Zweiback) filed an action against LBL, Tubbergen, 

and Schuster in the Douglas County District Court. Zweiback 

alleges Tubbergen and Schuster fraudulently induced him into 

purchasing the LBL life insurance policies by misrepresenting 

the nature and terms thereof. The operative amended complaint 

alleges claims of fraudulent misrepresentation and fraudulent 

concealment against Tubbergen and Schuster and seeks to have 

LBL reform or replace the existing policies with ones more 

suitable to Zweiback.

In December 2014, all defendants answered, generally denying the allegations of fraud and misrepresentation and raising 

a variety of affirmative defenses. Tubbergen alone raised the 

affirmative defense that the action against him was subject to 

binding arbitration.

More than 11⁄2 years after filing his answer, Tubbergen 

filed a motion to compel arbitration. A hearing on the motion 

was held in February 2017. The only evidence offered and 

received at the hearing was an affidavit authored by Tubbergen. 

Attached to the affidavit were two “Investor Profile” agreements executed by Zweiback, both of which contained arbitration provisions. The terms of the arbitration agreements will be 

set out in our analysis.

The investor profiles were apparently part of Tubbergen’s 

association with USA Financial Securities and USA Advanced 

Planners, both of which appear to be firms registered with the 

Securities and Exchange Commission, but neither of which 

are parties to this action. The investor profile agreements 

were signed by Zweiback in February 2005 and February 

2007.

Tubbergen’s affidavit avers that the LBL policies issued 

in 2005 were variable life insurance policies required to be 

registered by the Securities and Exchange Commission as 

securities. His affidavit does not indicate the investor profiles 

were a necessary part of either applying for or registering the 

LBL policies, but does aver that Tubbergen “submitted [the 
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ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.

Cite as 299 Neb. 180

investor profiles] with the applications for the variable insurance products that are the basis for this action.”

On February 22, 2017, the district court entered an order 

denying Tubbergen’s motion to compel arbitration. The court 

relied on § 25-2602.01(f)(4), which provides, in relevant part, 

that an arbitration agreement “concerning or relating to an 

insurance policy” is not valid and enforceable. The court 

rejected Tubbergen’s argument that the variable life insurance 

policies at issue were actually securities and not “insurance 

polic[ies]” within the meaning of § 25-2602.01(f)(4).

Tubbergen timely appealed, and we moved the case to our 

docket on our own motion.2

ASSIGNMENTS OF ERROR

Tubbergen assigns that the district court erred in (1) denying his motion to compel arbitration and (2) determining the 

investor profiles concerned or related to an insurance policy 

within the meaning of § 25-2602.01(f)(4).

STANDARD OF REVIEW

[1] Arbitrability presents a question of law.3 On a question of law, we reach a conclusion independent of the court 

below.4

ANALYSIS

Tubbergen filed his motion to compel arbitration pursuant to both Nebraska’s Uniform Arbitration Act5

 and the 

Federal Arbitration Act.6 When a contract containing an arbitration clause involves interstate commerce, issues of federal 

2 Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169 

(2014). 

4 Id.

5 Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016).

6 9 U.S.C. §§ 1 to 16 (2012).
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preemption arise and must be analyzed when ruling on a 

motion to compel arbitration in order to determine which act 

governs the agreement.7 And when issues of insurance and 

arbitration are presented, the applicability and scope of the 

McCarran-Ferguson Act8 should also be considered.9 The trial 

court’s order did not include any such analysis. However, to 

resolve this appeal, it is not necessary to engage in a preemption analysis, because we find there was a failure of proof 

regarding the arbitration agreement itself.

[2,3] A party cannot be required to submit a dispute to arbitration unless he or she has agreed to do so.10 Arbitration is 

purely a matter of contract,11 and thus, our threshold inquiry 

here is whether the record shows that Zweiback agreed to submit future disputes with Tubbergen to binding arbitration.

Before addressing the merits of this inquiry, we note 

Tubbergen has both alleged the existence of and offered evidence of an arbitration agreement signed by Zweiback. This 

case is thus factually distinguishable from Pearce v. Mutual 

of Omaha Ins. Co.,12 where we lacked jurisdiction over an 

appeal from a denial of a motion to compel arbitration. In 

Pearce, we held that where no agreement to arbitrate had been 

alleged or offered, an order refusing to compel arbitration was 

not an appealable order under the Uniform Arbitration Act13

7 See, e.g., Speece, supra note 3; Kremer v. Rural Community Ins. Co., 280 

Neb. 591, 788 N.W.2d 538 (2010).

8 15 U.S.C. §§ 1011 to 1015 (2012).

9 See, e.g., Speece, supra note 3; Kremer, supra note 7.

10 See, Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 

(1996), disapproved on other grounds, Webb v. American Employers 

Group, 268 Neb. 473, 684 N.W.2d 33 (2004).

11 Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 637 

N.W.2d 876 (2002).

12 Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899 

(2016).

13 See § 25-2620(a)(1).
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and was not a final, appealable order under Neb. Rev. Stat. 

§ 25-1902 (Reissue 2016). Here, Tubbergen has both alleged 

an agreement to arbitrate and offered evidence of the same, so 

the concerns present in Pearce are not present here. We conclude we have jurisdiction over this appeal,14 and we turn our 

attention to whether the arbitration agreements in the record 

support Tubbergen’s claim that Zweiback agreed to submit 

this dispute to arbitration.

The 2005 arbitration agreement provides:

I and USA Financial agree that the following pre-dispute

agreement to binding arbitration applies to a

all controversies arising among USA Financial, US

Financial’s Related Persons, My Investment Custodian, 

and Me or My related interests. All claims or controversies, and any related issues concerning any transaction or 

order; or the construction, performance, or breach of this 

or any other Agreement with Me whether entered into 

prior to, on, or subsequent to the date of this Agreement 

. . . shall be finally and conclusively determ

binding arbitration . . 

The 2007 arbitration agreement contained the same language, 

but referred to “USA Advanced Planners” instead of “USA 

Financial.”

It is undisputed that Zweiback signed both the 2005 and 

the 2007 arbitration agreements, but whether Tubbergen is a 

signatory to, or otherwise is subject to, the arbitration agreements is not evident from either the face of the agreement or 

the record. Because arbitration is purely a matter of contract, 

we review the arbitration agreements here using basic contract 

principles.15 For efficiency, we discuss the terms of the 2005 

arbitration agreement, but our analysis applies equally to the 

2007 agreement.

14 See, Speece, supra note 3; Webb, supra note 10.

15 Koricic v. Beverly Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009).
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ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.

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The 2005 arbitration agreement pertains to disputes between 

Zweiback and “USA Financial,” “USA Financial’s Related 

Persons,” or Zweiback’s “Investment Custodian.” Tubbergen’s 

affidavit does not use or reference the agreement’s vernacular, 

and instead avers he was “an officer, member and registered 

representative” of USA Financial Securities. There is nothing 

in his affidavit, or elsewhere in the record, demonstrating that 

Tubbergen was Zweiback’s “Investment Custodian” or one of 

“USA Financial’s Related Persons,” as those terms are used in 

the arbitration agreement. To the extent “Related Persons,” and 

“Investment Custodian” appear to be defined terms, neither the 

affidavit nor the attachments provide the definition.

The record is insufficient to demonstrate that the arbitration 

agreement between Zweiback and USA Financial Securities 

includes disputes between Zweiback and Tubbergen. Without 

evidence that Tubbergen is Zweiback’s “Investment Custodian” 

or is one of “USA Financial’s Related Persons,” Tubbergen has 

not met his burden of proving he is subject to the arbitration 

agreement he seeks to enforce.16 The trial court was correct to 

deny Tubbergen’s motion to compel arbitration.

CONCLUSION

On the record before us, there is no evidence that the 

arbitration agreements between Zweiback and USA Financial 

Securities or USA Financial Planners apply to disputes between 

Zweiback and Tubbergen. We thus affirm the district court’s 

order denying Tubbergen’s motion to compel arbitration.

Affirm

Wright, Miller-Lerman, and Funke, JJ., not participa

16 See RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 

(2014) (where appellees were not signatories to agreement, appellant 

failed to make prima facie showing appellees were subject to arbitration 

clause).