Will a Nebraska court apply the law we chose in this contract?
Yes, ordinarily, and the honest finding is that no Nebraska appellate decision was located refusing to enforce one. What defeats a clause in Nebraska is a statute, not a balancing test. Rose v. American Family Ins. Co. states the rule: “We have recognized that persons residing in differ- ent states may select the law of either state to govern their” contract “and that the parties’ choice of law will ordinarily govern.” Coral Production Corp. v. Central Resources, Inc. is the clearest application: “the parties were free to choose Texas law to govern this claim, and the district court did not err in so determining”. Where there is NO clause, Nebraska uses the most-significant-relationship test: Powell v. American Charter Fed. Sav. & Loan Ass'n: “In an effort to present a consistent rule for future cases involving conflicts of law, we hereby adopt the approach set forth in the Restatement (Second), supra, § 188.” Five Nebraska statutes void or dictate the clause outright, and they are the whole of the answer for the contracts they cover. Construction: Neb. Rev. Stat. § 45-1209(2) makes void “A provision that purports to make any state law other than that of Nebraska applicable to or governing any contract for construction within the state”. Insurance: Neb. Rev. Stat. § 44-357: “No insurance company shall issue in this state any policy or contract of insurance containing a provision, stipulation or agreement that such policy shall be construed according to the laws of any other state or country”. Equipment dealers: Neb. Rev. Stat. § 87-704(7) and § 87-709(1). Foreclosure consulting and equity purchase: Neb. Rev. Stat. §§ 76-2715(2) and 76-2724(2). Structured-settlement transfers: Neb. Rev. Stat. § 25-3104(1)(f). And one non-statutory limit: a choice-of-law clause does not travel with Nebraska dirt. Coral enforced Texas law on a contract claim precisely because it did not directly affect title to Nebraska real property, and Vanice v. Oehm refused a foreign-law argument in a suit foreclosing a mortgage on Nebraska land.
The trap
Nebraska will not stress-test your clause: it will enforce it, until the contract turns out to be one of five types, and then a statute voids it regardless of how reasonable the choice was or how substantial the relationship. The construction trigger is PLACE OF PERFORMANCE, not where anyone is from: § 45-1209(2) catches an out-of-state contractor using its own out-of-state form on a Nebraska job, and it is a whole-clause kill, subject to the two applicability limits read for this rule, § 45-1207 (improvements to residential property of no more than four units) and § 45-1208 (contracts or subcontracts entered into on or after October 1, 2010); and subject to the definitional exclusions in § 45-1202, whose effect on § 45-1209's own words, “any contract or subcontract for construction work performed within the State of Nebraska”, no case resolves. The insurance trigger is where the POLICY WAS ISSUED, and it is the hidden hinge of Rose: Rose is not a case about a good clause, it is a case about a policy issued in IOWA. Flip the issuance state and § 44-357 voids the identical clause. THE BIGGEST TRAP IS WHAT THIS RULE CANNOT TELL YOU. The escape most lawyers reach for, Restatement (Second) of Conflict of Laws § 187(2), under which a chosen law yields where the chosen state has no substantial relationship or where applying it would be contrary to a fundamental policy of a state with a materially greater interest: CANNOT BE STATED FROM THE AUTHORITIES READ FOR THIS RULE. Over all 51,154 published Nebraska opinions, “no substantial relationship” returns one row, “materially greater interest” returns one row and “contrary to a fundamental policy” returns one row, and all three are the same row, American Express Bank v. Craig, an unpublished Court of Appeals memorandum that quotes § 187(2) in full and that by its own first page is “NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).” Rose describes Nebraska's adoption as § 187(1), not (2). So do not tell a Nebraska client that a fundamental-policy attack is available on the strength of anything in this rule; the case that adopts § 187 is an uncitable memorandum. Finally, do not build on Hand Cut Steaks Acquisitions v. Lone Star Steakhouse for this clause: every choice-of-law mention in it uses a Nebraska-law clause as a MINIMUM-CONTACTS factor in a personal-jurisdiction analysis, “While the mini- mum contacts personal jurisdiction analysis is distinct from a choice-of-law analysis, a choice-of-law contractual provision in favor of the forum state’s law is a relevant contact with the forum”, and it decides nothing about enforcing a foreign choice of law.
22 authorities
The words that state the rule
We have recognized that persons residing in differ- ent states may select the law of either state to govern their - 307 - Nebraska Supreme Court Advance Sheets 315 Nebraska Reports ROSE V. AMERICAN FAMILY INS. CO. Cite as 315 Neb. 302 contract and that the parties’ choice of law will ordinarily govern.
The words that state the rule
Although we have determined that contractual limita- tion periods shorter than Nebraska statutory periods are not enforceable for policies issued in Nebraska, such provisions will be enforced in Nebraska when they appear in contracts entered into in other states.
- case730 N.W.2d 357Coral Production Corp. v. Central Resources, Inc.Neb.decided 2007read it at the source ↗
The words that state the rule
Because the dispute over Coral and KJJ’s preferential purchase right involves a contractual claim to purchase property interests, rather than directly affecting title to Nebraska real property, the parties were free to choose Texas law to govern this claim, and the district court did not err in so determining
- case514 N.W.2d 326Powell v. American Charter Fed. Sav. & Loan Ass'nNeb.decided 1994read it at the source ↗
The words that state the rule
In an effort to present a consistent rule for future cases involving conflicts of law, we hereby adopt the approach set forth in the Restatement (Second), supra, § 188.
- case298 Neb. 705Hand Cut Steaks Acquisitions v. Lone Star SteakhouseNeb.decided 2018read it at the source ↗
The words that state the rule
While the mini- mum contacts personal jurisdiction analysis is distinct from a choice-of-law analysis, a choice-of-law contractual provision in favor of the forum state’s law is a relevant contact with the forum.
- statuteNeb. Rev. Stat. § 45-1209enactment date not established
The words that state the rule
The following provisions in any contract or subcontract for construction work performed within the State of Nebraska shall be against public policy and shall be void and unenforceable: (1) A provision that purports to waive, release, or extinguish rights to file a claim against a payment or performance bond, except that a contract or subcontract may require a contractor or subcontractor to provide a waiver or release of such rights as a condition for payment, but only to the extent of the amount of the payment received; (2) A provision that purports to make any state law other than that of Nebraska applicable to or governing any contract for construction within the state; or
- statuteNeb. Rev. Stat. § 45-1207enactment date not established
The words that state the rule
The Nebraska Construction Prompt Pay Act does not apply to improvements to real property intended for residential purposes when the residence consists of no more than four residential units.
- statuteNeb. Rev. Stat. § 45-1208enactment date not established
The words that state the rule
The Nebraska Construction Prompt Pay Act applies to contracts or subcontracts entered into on or after October 1, 2010.
- statuteNeb. Rev. Stat. § 44-357enactment date not established
The words that state the rule
No insurance company shall issue in this state any policy or contract of insurance containing a provision, stipulation or agreement that such policy shall be construed according to the laws of any other state or country, or any provision limiting the time within which an action may be brought to less than the regular period of time prescribed by the statutes of limitations of this state, unless otherwise prescribed by this chapter.
- statuteNeb. Rev. Stat. § 87-704enactment date not established
The words that state the rule
It shall be a violation of the Equipment Business Regulation Act for a supplier: (1) To require a dealer to accept delivery of equipment, repair parts, or attachments that the dealer has not voluntarily ordered; (2) To require a dealer to order or accept delivery of equipment with special features or attachments not included in the base list price of such equipment as publicly advertised by the supplier; (3) To require a dealer to enter into any agreement, whether written or oral, amendatory or supplementary to an existing dealer agreement with the supplier unless such amendatory or supplementary agreement is imposed on similarly situated dealers; (4) To take action terminating, canceling, failing to renew, or substantially changing the competitive circumstances intended by the dealer agreement due to the results of conditions beyond the dealer's control, including drought, flood, labor disputes, or economic recession. This subdivision shall not apply if the dealer is in default of a security agreement in effect with the supplier; (5) To condition the renewal or extension of a dealer agreement on (a) the dealer's substantial renovation of its place of business or the construction, purchase, acquisition, or rental of a new place of business by the dealer unless the supplier advises the dealer in writing of its demand for such renovation, construction, purchase, acquisition, or rental within a reasonable time prior to the effective date of the proposed renewal or extension, but in no case less than one year prior to such date, or (b) capital construction exceeding the terms of the dealer agreement in force and effect on May 2, 1991; (6) To include any condition, stipulation, or provision in any dealer agreement purporting to waive compliance with any provision of the Equipment Business Regulation Act or any other provision of state law applying to such agreements; or (7) To include any provision in any dealer agreement restricting jurisdiction or venue to a forum outside this state or requiring the application of the laws of another state to disputes arising under the agreement.
- statuteNeb. Rev. Stat. § 25-3104enactment date not established
The words that state the rule
unless the transfer has been authorized in advance in a final order of a court of competent jurisdiction based on the court's written express findings that: (a) The transfer complies with the requirements of the Structured Settlements Transfers Protection Act; (b) The transferee has provided to the payee a disclosure statement in no smaller than fourteen-point type specifying: (i) The amounts and due dates of the structured settlement payments to be transferred; (ii) The aggregate amount of the payments; (iii) The discounted present value of the payments, together with the discount rate used in determining the discounted present value; (iv) The gross amount payable to the payee in exchange for the payments; (v) An itemized listing of all brokers' commissions, service charges, application fees, processing fees, closing costs, filing fees, referral fees, administrative fees, legal fees, notary fees, and other commissions, fees, costs, expenses, and charges payable by the payee or deductible from the gross amount otherwise payable to the payee; (vi) The net amount payable to the payee after deduction of all commissions, fees, costs, expenses, and charges described in subdivision (1)(b)(v) of this section; (vii) The quotient, expressed as a percentage, obtained by dividing the net payment amount by the discounted present value of the payments. Such quotient shall be disclosed in the following statement "The net amount that you will receive from us in exchange for your future structured settlement payments represents ....% of the estimated current value of the payments."; (viii) The effective annual interest rate. Such rate shall be disclosed in the following statement "Based on the amount that you will receive from us and the amounts and timing of the structured settlement payments that you are turning over to us, you will, in effect, be paying interest to us at a rate of ....% per year."; and (ix) The amount of any penalty and the aggregate amount of any liquidated damages, including penalties, payable by the payee in the event of a breach of the transfer agreement by the payee; (c) The transfer is in the best interests of the payee, taking into account the welfare and support of the payee's dependents, and the net amount payable to the payee is not unfair, unjust, or unreasonable under existing circumstances; (d) The payee has received, or waived his or her right to receive, independent professional advice regarding the legal, tax, and financial implications of the transfer; (e) The transferee has given written notice of the transferee's name, address, and taxpayer identification number to the annuity issuer and the structured settlement obligor and has filed a copy of the notice with the court; (f) The transfer agreement provides that any disputes between the parties will be governed by the laws of Nebraska and that Nebraska is the proper place of venue to bring any cause of action arising out of a breach of the agreement
- caseVanice v. Oehm (Neb., decided 27 January 1995)Vanice v. OehmNeb.decided 1995
The words that state the rule
While we have neither been cited to nor found a case in which we have addressed what law governs the foreclosure of a mortgage on Nebraska land, we have recently reaffirmed that in the context of inheritance rights, the law of the situs of the land governs exclusively the rights to the land and the methods of its transfer.
- caseVanice v. Oehm (Neb., decided 27 January 1995)Vanice v. OehmNeb.decided 1995
The words that state the rule
Vanice claims the district court erred in finding his action time barred because Missouri law applies and it provides a 20-year period of limitations, but that even if Nebraska law were to apply, the appropriate period of limitations likewise is 20 years.
- caseAmerican Express Bank v. Craig (Neb. Ct. App., decided 12 March 2019)American Express Bank v. CraigNeb. Ct. App.decided 2019
The words that state the rule
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either “(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or “(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
- caseAmerican Express Bank v. Craig (Neb. Ct. App., decided 12 March 2019)American Express Bank v. CraigNeb. Ct. App.decided 2019
The words that state the rule
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
- statuteNeb. Rev. Stat. § 87-709enactment date not established
The words that state the rule
(1) A term of a dealer agreement which is inconsistent with the terms of the Equipment Business Regulation Act is contrary to public policy and is void and unenforceable and shall not waive any rights which are provided to a person by the act.
- caseVanice v. Oehm (Neb., decided 27 January 1995)Vanice v. OehmNeb.decided 1995
The words that state the rule
As pled, Vanice’s foreclosure action is time *304 barred; consequently, the operative petition fails to state a cause of action. However, when a demurrer to a petition is sustained, a court must grant leave to amend, unless it is clear that no reasonable possibility exists that amendment will correct the defect. Id. Since the agreement makes reference to a note, the operative petition raises a possibility that there exists a document which sets forth a payment schedule which might change the maturity date of the debt secured by the mortgage. That being so, the district court erred by failing to grant Vanice a further opportunity to amend. V. JUDGMENT Accordingly, the judgment of the district court is reversed and the matter remanded for further proceedings consistent with this opinion. Reversed and remanded for FURTHER PROCEEDINGS.
- statuteNeb. Rev. Stat. § 76-2715enactment date not established
The words that state the rule
A provision in a foreclosure consulting contract is void as against public policy if the provision attempts or purports to: (1) Waive any of the rights specified in sections 76-2713 to 76-2718 or the right to a jury trial; (2) Consent to jurisdiction for litigation or choice of law in a state other than Nebraska;
- statuteNeb. Rev. Stat. § 76-2724enactment date not established
The words that state the rule
A provision in an equity purchase contract between an equity purchaser and a homeowner is void as against public policy if it attempts or purports to: (1) Waive any of the rights specified in sections 76-2719 to 76-2727 or the right to a jury trial; (2) Consent to jurisdiction for litigation or choice of law in a state other than Nebraska;
- statuteNeb. Rev. Stat. § 45-1202enactment date not established
The words that state the rule
Contractor does not include an individual or an entity performing work on a contract for the State of Nebraska or performing work on a federal-aid or state-aid project of a political subdivision in which the state makes payments to the contractor on behalf of the political subdivision; (2) Owner means a person (a) who has an interest in any real property improved, (b) for whom an improvement is made, or (c) who contracted for an improvement to be made. Owner includes a person, an entity, or any political subdivision of this state. Owner does not include the State of Nebraska;
The words that state the rule
When considering whether a con- tractual choice‑of‑law provision is determinative, we have adopted Restatement (Second) of Conflict of Laws § 187(1) at 561 (1971), which provides, in relevant part: “The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.”
- case514 N.W.2d 326Powell v. American Charter Fed. Sav. & Loan Ass'nNeb.decided 1994read it at the source ↗
The words that state the rule
Applying these principles to the facts and circumstances of the present case, we find that Minnesota is the state with the most significant relationship to the transaction and the parties.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.