1. IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID HYKE, Individually and as
the Personal Representative of the
Estate of Floren Hyke, DANA
SAMWAY, and DIXIE LANDRETH
Plaintiffs,
v.
OHIO NATIONAL LIFE INSURANCE
COMPANY,
Defendant.
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CASE NO. 8:10CV263
MEMORANDUM
AND ORDER
This matter is before the Court on the Plaintiffs’ Motion for Summary Judgment
(Filing No. 58). The Court incorporates herein by reference its Memorandum and Order of
July 20, 2011 (Filing No. 42), in which the Court found that Defendant Ohio National Life
Insurance Company (“ONL”) breached the terms of a life insurance contract with decedent
Floren Hyke by failing to provide him with notice of the premium required to maintain his
term life insurance coverage for the contract year commencing August 14, 2008. The Court
noted that issues of fact remained for trial regarding Plaintiffs’ entitlement to recover
proceeds from the term life insurance rider, specifically whether Hyke could and would have
paid the premium and not defaulted if notice had been provided.
Plaintiffs’ Index of Evidence (Filing No. 59) contains substantial and uncontroverted
evidence that Floren Hyke had the wherewithal to pay the premium and the motive and
intent to do so. ONL concedes that Floren Hyke had the wherewithal to pay the premium,
and does not dispute that he had the motive and intent to pay it. ONL also concedes that
the net amount due under the term life insurance policy is $93,374.13, if the Court’s earlier
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ruling, finding that ONL had a duty to send Floren Hyke a notice of the premium, is correct.
(Defendant’s Brief, Filing No. 62.)
Because there are no issues remaining for trial in this case, judgment will be entered
for the Plaintiffs and against the Defendant in the amount of $93,374.13, plus costs,
including a reasonable attorney’s fee pursuant to Neb. Rev. Stat. § 44-359 (Reissue 2004).
IT IS ORDERED:
1. The Plaintiffs’ Motion for Summary Judgment (Filing No. 58) is granted;
2. A Separate Judgment will be entered in favor of Plaintiffs David Hyke,
individually and as the Personal Representative of the Estate of Floren Hyke,
Dana Samway, and Dixie Landreth, in the amount of $93,374.13, plus costs,
including a reasonable attorney’s fee pursuant to Neb. Rev. Stat. § 44-359
(Reissue 2004); and
3. Plaintiffs may submit their motion for attorney’s fees no later than fourteen
(14) days after entry of judgment, pursuant to Fed. R. Civ. P. 54(d)(2).
DATED this 15 day of November, 2011.th
BY THE COURT:
s/Laurie Smith Camp
United States District Judge
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