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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

Millard Gutter Company, a corporation 

doing business as Millard Roofing and 

Gutter, appellant, v. Farm Bureau 

Property & Casualty Insurance 

Company, appellee.

___ N.W.2d ___

Filed March 30, 2021. No. A-19-1089.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss 

for failure to state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face. In cases in which a plaintiff 

does not or cannot allege specific facts showing a necessary element, the 

factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that 

discovery will reveal evidence of the element or claim.

3. Pleadings: Appeal and Error. An order of the district court requiring a 

petition to be made more definite and certain will be sustained on appeal 

unless it clearly appears that the court abused its discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

5. Actions: Insurance: Parties. A first-party bad faith cause of action is 

based upon allegations that the insurer, in bad faith, refuses to settle 

with its own policyholder insured, who thereby suffers some type of 

direct loss.

6. Actions: Pleadings: Notice. Civil actions are controlled by a liberal 

pleading regime; a party is only required to set forth a short and plain 

statement of the claim showing that the pleader is entitled to relief and 

Nebraska Supreme Court Online Library

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

04/06/2021 12:11 AM CDT
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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

is not required to plead legal theories or cite appropriate statutes so long 

as the pleading gives fair notice of the claims asserted.

7. Actions: Pleadings. The rationale for a liberal notice pleading standard 

in civil actions is that when a party has a valid claim, he or she should 

recover on it regardless of a failure to perceive the true basis of the 

claim at the pleading stage.

8. Breach of Contract: Pleadings: Proof. In a breach of contract action, 

a plaintiff need only plead the existence of a promise, its breach, damages, and compliance with any conditions precedent that activate the 

defendant’s duty.

9. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Reversed and remanded 

for further proceedings.

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellant.

Raymond E. Walden and Michael T. Gibbons, of Woodke & 

Gibbons, P.C., L.L.O., for appellee.

Pirtle, Chief Judge, and Moore and Riedmann, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Millard Gutter Company, a corporation doing business as 

Millard Roofing and Gutter (Millard Gutter), appeals from 

an order of the district court for Douglas County dismissing its amended complaint against Farm Bureau Property & 

Casualty Insurance Company (Farm Bureau) without prejudice. 

On appeal, Millard Gutter argues that the district court erred in 

dismissing its bad faith claims against Farm Bureau, in ordering it to file a second amended complaint, and in dismissing 

the amended complaint sua sponte when Millard Gutter failed 

to file a second amended complaint. For the reasons that follow, we reverse, and remand for further proceedings.
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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

BACKGROUND

On April 9, 2018, Millard Gutter filed a complaint in the 

district court against Farm Bureau. Millard Gutter alleged 

that it was “the assignee of various insured property owners, 

who purchased insurance from [Farm Bureau].” The complaint 

stated only that the assignments were “associated with the 

2013 storms” and did not otherwise identify the policies or the 

insureds at issue. Millard Gutter alleged that Farm Bureau was 

in breach of contract for failing to pay Millard Gutter pursuant 

to these assignments. Further, Millard Gutter alleged bad faith 

and claimed prejudgment and postjudgment interest, as well as 

attorney fees.

Subsequently, Farm Bureau filed a motion to enforce 

prior rulings, a motion to dismiss Millard Gutter’s bad faith 

claims, a motion for a more definite statement regarding the 

breach of contract claims, a motion to strike, and a motion to 

sever. These motions are not contained in the record before 

this court. Before the district court ruled on Farm Bureau’s 

motions, Millard Gutter filed an amended complaint. The 

amended complaint identified the names and addresses of 20 

individuals who had assigned their rights to payment under 

their insurance policies to Millard Gutter, as well as the dates 

of the assignments.

Following the submission of briefs, the district court ruled 

on Farm Bureau’s pending motions on April 29, 2019. As relevant to this appeal, the district court granted Farm Bureau’s 

motion to dismiss Millard Gutter’s bad faith claims. The court 

reasoned that inchoate bad faith claims cannot be assigned 

and that there were no allegations in the amended complaint regarding whether “any homeowner had made a bad 

faith claim against [Farm Bureau] at the time of the assignment, which may have been a ‘present interest’ assigned to 

[Millard Gutter].” The district court additionally sustained 

Farm Bureau’s motion for a more definite statement “as to the 

date of the alleged breaches of contract so that Farm Bureau 

[could] assess any potential statute of limitations defenses.” 
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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

Millard Gutter was ordered to file a second amended complaint 

within 30 days.

Millard Gutter did not file a second amended complaint, 

and on October 16, 2019, the district court entered an order 

dismissing the case without prejudice. This appeal followed.

ASSIGNMENTS OF ERROR

Millard Gutter assigns that the district court erred in (1) dismissing its bad faith claims against Farm Bureau, (2) ordering 

it to file a second amended complaint, and (3) dismissing the 

amended complaint.

STANDARD OF REVIEW

[1,2] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party. Schaeffer v. Frakes, 306 Neb. 

904, 947 N.W.2d 714 (2020). To prevail against a motion to 

dismiss for failure to state a claim, a plaintiff must allege 

sufficient facts to state a claim to relief that is plausible on 

its face. Id. In cases in which a plaintiff does not or cannot 

allege specific facts showing a necessary element, the factual 

allegations, taken as true, are nonetheless plausible if they 

suggest the existence of the element and raise a reasonable 

expectation that discovery will reveal evidence of the element 

or claim. Id.

[3,4] An order of the district court requiring a petition to 

be made more definite and certain will be sustained on appeal 

unless it clearly appears that the court abused its discretion. Christianson v. Educational Serv. Unit No. 16, 243 Neb. 

553, 501 N.W.2d 281 (1993). A judicial abuse of discretion 

exists when the reasons or rulings of a trial judge are clearly 

untenable, unfairly depriving a litigant of a substantial right 

and denying just results in matters submitted for disposition. 

George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 

947 N.W.2d 510 (2020).
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Nebraska Court of Appeals Advance Sheets

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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

ANALYSIS

Bad Faith Claims.

Millard Gutter argues that the district court erred in granting Farm Bureau’s motion to dismiss its bad faith claims for 

failure to state a claim. The district court found that Millard 

Gutter had not alleged any acts of bad faith committed by 

Farm Bureau prior to the dates of the assignments, nor were 

there allegations that any homeowner had made a bad faith 

claim against Farm Bureau prior to the assignments. The district court ultimately held that “an inchoate claim for bad faith 

cannot be assigned.” Additionally, the court found that the 

complaint alleged only that the insureds had assigned the “proceeds under policies of insurance” to Millard Gutter and that 

the complaint failed to allege that the insureds had assigned 

related tort claims for bad faith.

Millard Gutter argues that the district court’s analysis was 

“inconsistent with the standards that should be employed in 

examining a motion to dismiss.” Brief for appellant at 9. 

Millard Gutter argues that at the pleadings stage of a case, a 

plaintiff need only state a claim that was “‘plausible on its 

face,’” and that therefore, the district court erred in concluding 

Millard Gutter had failed to state a claim as a matter of law. Id.

(emphasis omitted).

In support of its position, Millard Gutter claims that after 

the assignments were made, it “stood in the shoes of . . . each 

of the insureds” under the original contract, and that under the 

contract, Farm Bureau had a continuing obligation to adjust the 

insureds’ claims in good faith and to make prompt payments to 

Millard Gutter as assignee. Brief for appellant at 11. Millard 

Gutter further alleges that its bad faith claims, as pled in its 

complaint, were sufficiently plausible and could have been further developed with the aid of discovery.

[5] Millard Gutter correctly asserts that Nebraska courts 

have recognized a first-party bad faith cause of action. The 

tort of bad faith “is based upon allegations that the insurer, in 

bad faith, refuses to settle with its own policyholder insured, 
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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

who thereby suffers some type of direct loss.” Braesch v. Union 

Ins. Co., 237 Neb. 44, 54, 464 N.W.2d 769, 776 (1991), disapproved on other grounds, Wortman v. Unger, 254 Neb. 544, 

578 N.W.2d 413 (1998). The tort of first-party bad faith “is 

based on the covenant of good faith and fair dealing which, in 

turn, is premised on a contractual relationship.” Id. at 56, 464 

N.W.2d at 776. The court in Braesch noted that a nonpolicy

holder generally does not have standing to assert a first-party 

bad faith claim because there is not a contractual relationship 

between the nonpolicyholder and the insurer.

Here, Millard Gutter is not a policyholder with Farm Bureau, 

and no contractual relationship exists between Millard Gutter 

and Farm Bureau. The court in Braesch held that “stran

gers to the contract” cannot bring first-party bad faith claims 

against an insurer as a policyholder and beneficiary. 237 Neb. 

at 55, 464 N.W.2d at 776. The district court correctly found 

that because Millard Gutter is a stranger to the contract, it 

cannot assert a traditional first-party bad faith claim against 

Farm Bureau.

Millard Gutter argues, however, that a bad faith claim 

against an insurer may be assigned by an insured. Neither this 

court nor the Nebraska Supreme Court has explicitly ruled on 

the assignability of bad faith claims or on the requirements 

for such an assignment. Yet, for the reasons set forth below, 

it is unnecessary for us to conclusively decide that issue in 

this case.

[6,7] Nebraska is a notice pleading jurisdiction. Tryon v. 

City of North Platte, 295 Neb. 706, 890 N.W.2d 784 (2017). 

Civil actions are controlled by a liberal pleading regime. Id.

A party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief. 

Id. The party is not required to plead legal theories or cite 

appropriate statutes so long as the pleading gives fair notice 

of the claims asserted. Id. The rationale for this liberal notice 

pleading standard is that when a party has a valid claim, he or 
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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

she should recover on it regardless of a failure to perceive the 

true basis of the claim at the pleading stage. Id.

In its amended complaint, Millard Gutter alleged that Farm 

Bureau had a contractual obligation to pay the costs of repairing the damages to the insureds’ homes. Millard Gutter alleged 

that it was the valid assignee of the rights to proceeds under 

the insureds’ policies and that Farm Bureau was sent proper 

notification of the assignments. The amended complaint went 

on to allege that Millard Gutter demanded payment from Farm 

Bureau and that Farm Bureau refused to pay either Millard 

Gutter or the insureds the amounts due under the policies. 

Finally, the complaint alleged that the “bad faith conduct” of 

Farm Bureau caused damage to Millard Gutter.

Upon our de novo review, accepting the allegations in the 

amended complaint as true and drawing all reasonable inferences in favor of Millard Gutter, we determine that for the 

purposes of a motion to dismiss, Millard Gutter has sufficiently 

pled a bad faith claim under Nebraska law. The amended 

complaint specifically alleges that Farm Bureau failed to make 

payments for the insureds’ losses, failed to recognize the 

validity of the assignments, and failed to act in good faith. 

These pleadings are sufficient to give Farm Bureau fair notice 

of the claims asserted against it. See Tryon v. City of North 

Platte, supra.

The district court correctly ascertained that at this point 

in the case, it is unclear whether the alleged assignments to 

Millard Gutter specifically include any tort claims or interest 

in the homeowners’ insurance policies. However, this information can be determined during the discovery process. If 

at some point in the future, Farm Bureau learns that some or 

all of the insureds at issue did not validly assign to Millard 

Gutter the right to pursue bad faith tort claims related to their 

insurance policies, then an appropriate motion may be filed at 

that time.

Therefore, we conclude that the district court erred in granting Farm Bureau’s motion to dismiss the bad faith claims.
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Nebraska Court of Appeals Advance Sheets

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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

Order for More Definite Statement.

Millard Gutter next argues that the district court abused its 

discretion in requiring it to make a more definite statement 

with respect to its breach of contract claims against Farm 

Bureau. Millard Gutter argues that the district court and Farm 

Bureau improperly treated the motion for a more definite statement “as a discovery tool” and that under notice pleading rules, 

its complaint sufficiently stated a cause of action for breach of 

contract. Brief for appellant at 20.

In its order, the district court required Millard Gutter to file 

a second amended complaint that included “a more definite 

statement as to when the alleged breach of contract is claimed 

to have occurred as to each insured.”

[8] As stated above, Nebraska is a notice pleading jurisdiction. Tryon v. City of North Platte, 295 Neb. 706, 890 N.W.2d 

784 (2017). Nebraska courts have established that in a breach 

of contract action, a plaintiff need only “plead the existence 

of a promise, its breach, damages, and compliance with any 

conditions precedent that activate the defendant’s duty.” See 

Kotrous v. Zerbe, 287 Neb. 1033, 1037, 846 N.W.2d 122, 126 

(2014). The record shows that Millard Gutter’s amended complaint met these minimal pleading requirements.

In addition to the above, Neb. Ct. R. Pldg. § 6-1109(f) states: 

“For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered 

like all other averments of material matter.” Nebraska’s notice 

pleading regime is modeled after the Federal Rules of Civil 

Procedure, and an appellate court may look to federal decisions for guidance in interpreting state rules. See, Eastermann 

v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017); Kellogg v. 

Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574 

(2005). Similarly to Nebraska’s § 6-1109(f), Fed. R. Civ. P. 

9(f) states: “An allegation of time or place is material when 

testing the sufficiency of a pleading.” Pursuant to this rule, 

federal courts have granted motions for a more definite statement when “a plaintiff’s allegations span several years, some 
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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

of which fall outside of the statute of limitations period.” See 

Meyer v. United Airlines, Inc., 624 F. Supp. 2d 923, 932 (N.D. 

Ill. 2008).

In Nebraska, a breach of contract action based on a written 

agreement has a 5-year statute of limitations. See Neb. Rev. 

Stat. § 25-205 (Reissue 2016). Millard Gutter’s complaint 

was filed on April 9, 2018. The complaint alleged that Millard 

Gutter’s claims against Farm Bureau were “associated with the 

2013 storms.” The amended complaint more specifically pled 

that each insured made an assignment to Millard Gutter following “an incident occurring on April 9, 2013.” Based upon these 

allegations, the earliest any of Millard Gutter’s claims against 

Farm Bureau could have become ripe was April 9, 2013, which 

is within 5 years of the date the complaint was filed. Although 

Millard Gutter’s allegations in the complaint and amended 

complaint did span several years, they did not fall outside the 

statute of limitations period. Therefore, this case is not one in 

which the rule articulated in Meyer v. United Airlines, Inc., 

supra, would apply.

Under the specific circumstances of this case, we conclude 

that the district court abused its discretion in requiring Millard 

Gutter to make a more definite statement as to its claims of 

breach of contract against Farm Bureau.

Order of Dismissal.

[9] Finally, Millard Gutter argues that the district court 

erred in dismissing the amended complaint in its entirety 

without prior notice or hearing. However, because we have 

already determined that the district court erred in granting 

Farm Bureau’s motion to dismiss and abused its discretion in 

requiring Millard Gutter to make a more definite statement, 

we need not consider this assignment of error. An appellate 

court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. AVG 

Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 

212 (2020).
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Nebraska Court of Appeals Advance Sheets

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MILLARD GUTTER CO. v. FARM BUREAU PROP. & CAS. INS. CO.

Cite as 29 Neb. App. 678

CONCLUSION

We conclude that the district court erred in granting 

Farm Bureau’s motion to dismiss Millard Gutter’s bad faith 

claims. We also conclude that the district court abused its 

discretion in requiring Millard Gutter to make a more definite 

statement and to file a second amended complaint. Accordingly, 

we reverse the district court’s order and remand the cause for 

further proceedings consistent with this opinion.

Reversed and remanded for 

further proceedings.