S-22-0147 Avis Rent A Car System, Inc. (Appellee) v. Roynetta McDavid (Appellant)
Appeal from the District Court for Douglas County, Judge W. Russell Bowie, III.
Attorneys: Sean P. Rensch (Rensch & Rensch Law for Appellant) and Joel M. Carney and Andrew J. McElmeel (Goosmann Law Firm for Appellee).
Civil: Breach of Contract, Contract Interpretation, and Indemnification
Proceedings below: The trial court found that the indemnification and waiver provision of the rental contract was not ambiguous, not against public policy, not unconscionable and was enforceable under Nebraska law. Appellant was obligated to indemnify Appellee for $40,100.00 in payments made to a third-party under the terms of a settlement agreement. On its own motion, the Supreme Court ordered this case to be transferred from the docket of the Court of Appeals to its docket.
Issues: Appellant makes the following assignments of error: 1) The trial court erred in finding that the indemnification and waiver provision of the subject rental contract was unambiguous, that it was not unconscionable, not violative of public policy, and, therefore, enforceable, without considering the meaning or importance of the word “incur”, without considering the lack of notice and broad scope of the indemnification language, and not fully considering the fact that the rental car had essentially been stolen from the Appellant; 2) The trial court erred in finding that neither the Graves Amendment nor the voluntariness of the payments made by Appellee to the Tennessee Plaintiff’s are applicable to this case, and that neither excuses the Appellant from her purported indemnification obligations under the terms of the rental agreement; and 3) The trial court erred in failing to find that the claims of the Tennessee Plaintiffs and the settlement payments made by the Appellee, had not been incurred by the Appellee, as the plain meaning of the word “incur” suggests. Said another way, the court erred in failing to find that since those claims/payments had not been incurred by the Appellee, the indemnification and waiver provision was not triggered, and the Appellant had not breached the rental contract.