North Star Mut. Ins. Co. v. Miller , 311 Neb. 941 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/08/2022 09:07 AM CDT
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    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 plead-
    ings, 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 appel-
    late 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’ inten-
    tions 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.
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    NORTH STAR MUT. INS. CO. v. MILLER
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    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 attor-
    ney 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
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    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 par-
    ties’ 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 end-
    ing 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 any-
    thing 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 light-
    ing 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
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    NORTH STAR MUT. INS. CO. v. MILLER
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    for business personal property coverage and $199,212 for busi-
    ness 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 replace-
    ment premises, $36,884.15 for materials used in the improve-
    ments 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 per-
    tinent 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 can-
    not continue “operations”.
    (c) To:
    (i) Repair or replace any property; or
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    NORTH STAR MUT. INS. CO. v. MILLER
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    (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 sum-
    mary 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 inter-
    pretations 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).
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    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 some-
    one 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 lim-
    ited 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 replace-
    ment 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 what-
    ever 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 com-
    plaint 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
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    NORTH STAR MUT. INS. CO. v. MILLER
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    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 dis-
    trict court erred in (1) determining the Policy provisions to be
    ambiguous, (2) determining that the walk-in cooler was cov-
    ered 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, depo-
    sitions, 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.
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    NORTH STAR MUT. INS. CO. v. MILLER
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    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 judi-
    cial 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)).
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    NORTH STAR MUT. INS. CO. v. MILLER
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    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 inter-
    pretations or meanings. 9 However, we will not read an ambi-
    guity into policy language which is plain and unambiguous in
    order to construe it against the insurer. 10 But, when interpret-
    ing 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 neces-
    sary 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 relo-
    cation expenses, and costs to equip and operate the replace-
    ment 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” encom-
    passes 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).
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    NORTH STAR MUT. INS. CO. v. MILLER
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    namely, whether or not the term encompasses substantial modi-
    fications 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 ambigu-
    ous 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 objec-
    tive 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 appro-
    priate 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 modi-
    fication 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
    .
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    for purposes of the Policy, the word “equip” means to make
    ready or to furnish for service or action by appropriate pro-
    visioning and necessarily encompasses expenses incurred in
    modifying a replacement premises in order to continue opera-
    tions, 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 con-
    sidered 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 equip-
    ment. 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 equip-
    ment, 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 alter-
    natively, 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 associ-
    ated 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.
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    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 replace-
    ment 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 provi-
    sion 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 per-
    son 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
    .
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    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 replace-
    ment 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 con-
    struing 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).
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    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 con-
    duct any review at all. 25
    [9,10] A cross-appeal must be properly designated, pursu-
    ant 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 man-
    ner 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 assign-
    ment 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 cross-
    appeal. The decisive particulars governing how we treat fail-
    ures 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).
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    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 associ-
    ated 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 recov-
    ery 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 enti-
    tled 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).
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    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 litiga-
    tion, 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).
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    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 direc-
    tions to the district court to enter summary judgment in favor
    of Old Mill as to the claimed extra expenses. We affirm, how-
    ever, 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.