Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/13/2018 08:36 AM CDT




                                                      - 180 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                              ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                                            Cite as 299 Neb. 180




                              Zweiback Family Limited Partnership et al.,
                              appellees, v. Lincoln Benefit Life Company
                                  and Brian Schuster, appellees, and
                                     Dennis Tubbergen, appellant.
                                                  ___ N.W.2d ___

                                        Filed March 2, 2018.    No. S-17-324.

                1.	 Arbitration and Award: Judgments: Appeal and Error. Arbitrability
                    presents a question of law. On a question of law, an appellate court
                    reaches a conclusion independent of the court below.
                2.	 Arbitration and Award. A party cannot be required to submit a dispute
                    to arbitration unless he or she has agreed to do so.
                3.	 Contracts: Arbitration and Award. Arbitration is purely a matter
                    of contract.

                  Appeal from the District Court for Douglas County: Horacio
               J. Wheelock, Judge. Affirmed.

                 Gerald L. Friedrichsen, of Fitzgerald, Schorr, Barmettler &
               Brennan, P.C., L.L.O., for appellant.

                 Edward D. Hotz, of Pansing, Hogan, Ernst & Bachman,
               L.L.P., for appellees.

                 Heavican, C.J., Cassel, Stacy, and K elch, JJ., and Bishop,
               Judge.

                  Stacy, J.
                  The district court denied a motion to compel arbitra-
               tion, reasoning the agreement to arbitrate “concern[ed] or
               relat[ed] to an insurance policy” and thus was unenforceable
                                      - 181 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
             ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                           Cite as 299 Neb. 180

under Nebraska law.1 We affirm, although for different
reasons.
                             FACTS
   Eugene M. Zweiback is the named insured under two vari-
able life insurance policies issued by Lincoln Benefit Life
Company (LBL). Zweiback is also the general partner of two
partnerships named as plaintiffs in this lawsuit. Zweiback
alleges that in 2004, he consulted two authorized agents or bro-
kers of LBL, Dennis Tubbergen and Brian Schuster, and told
them he wanted to purchase a life insurance policy. Zweiback
wanted a policy with a one-time premium of approximately
$1 million that would continue to finance the ongoing cost of
insurance during his lifetime and then pay a large benefit upon
his death, regardless of his age.
   In 2005, Zweiback applied for and was issued two LBL life
insurance policies; the death benefit of each was $10 million.
Zweiback alleges both Tubbergen and Schuster advised him on
multiple occasions that the LBL policies satisfied Zweiback’s
conditions. Zweiback paid premiums of approximately $1 mil-
lion for the policies, and he alleges Tubbergen and Schuster
received substantial commissions on the sale of the policies.
He also alleges he did not know the policies were variable
life insurance policies or that the ability of the policies to pay
future insurance costs without additional premiums depended
on the performance of underlying investments.
   Approximately 1 year later, in October 2006, the face val-
ues of both LBL policies were lowered from $10 million to
$3.5 million. Zweiback alleges this was done after the date
upon which Tubbergen and Schuster would have to return
earned commissions. In June 2012, Zweiback was informed by
LBL that additional premiums were due to keep the policies in
force. Instead of paying additional premiums, Zweiback chose
to reduce the face value of both policies to $2 million.

 1	
      Neb. Rev. Stat. § 25-2602.01(f)(4) (Reissue 2016).
                             - 182 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
        ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                      Cite as 299 Neb. 180

   In August 2014, Zweiback and the partnerships (collec-
tively Zweiback) filed an action against LBL, Tubbergen,
and Schuster in the Douglas County District Court. Zweiback
alleges Tubbergen and Schuster fraudulently induced him into
purchasing the LBL life insurance policies by misrepresenting
the nature and terms thereof. The operative amended complaint
alleges claims of fraudulent misrepresentation and fraudulent
concealment against Tubbergen and Schuster and seeks to have
LBL reform or replace the existing policies with ones more
suitable to Zweiback.
   In December 2014, all defendants answered, generally deny-
ing the allegations of fraud and misrepresentation and raising
a variety of affirmative defenses. Tubbergen alone raised the
affirmative defense that the action against him was subject to
binding arbitration.
   More than 11⁄2 years after filing his answer, Tubbergen
filed a motion to compel arbitration. A hearing on the motion
was held in February 2017. The only evidence offered and
received at the hearing was an affidavit authored by Tubbergen.
Attached to the affidavit were two “Investor Profile” agree-
ments executed by Zweiback, both of which contained arbitra-
tion provisions. The terms of the arbitration agreements will be
set out in our analysis.
   The investor profiles were apparently part of Tubbergen’s
association with USA Financial Securities and USA Advanced
Planners, both of which appear to be firms registered with the
Securities and Exchange Commission, but neither of which
are parties to this action. The investor profile agreements
were signed by Zweiback in February 2005 and February
2007.
   Tubbergen’s affidavit avers that the LBL policies issued
in 2005 were variable life insurance policies required to be
registered by the Securities and Exchange Commission as
securities. His affidavit does not indicate the investor profiles
were a necessary part of either applying for or registering the
LBL policies, but does aver that Tubbergen “submitted [the
                                   - 183 -
               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
             ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                           Cite as 299 Neb. 180

investor profiles] with the applications for the variable insur-
ance products that are the basis for this action.”
   On February 22, 2017, the district court entered an order
denying Tubbergen’s motion to compel arbitration. The court
relied on § 25-2602.01(f)(4), which provides, in relevant part,
that an arbitration agreement “concerning or relating to an
insurance policy” is not valid and enforceable. The court
rejected Tubbergen’s argument that the variable life insurance
policies at issue were actually securities and not “insurance
polic[ies]” within the meaning of § 25-2602.01(f)(4).
   Tubbergen timely appealed, and we moved the case to our
docket on our own motion.2

                 ASSIGNMENTS OF ERROR
   Tubbergen assigns that the district court erred in (1) deny-
ing his motion to compel arbitration and (2) determining the
investor profiles concerned or related to an insurance policy
within the meaning of § 25-2602.01(f)(4).

                   STANDARD OF REVIEW
   [1] Arbitrability presents a question of law.3 On a ques-
tion of law, we reach a conclusion independent of the court
below.4

                          ANALYSIS
   Tubbergen filed his motion to compel arbitration pursu-
ant to both Nebraska’s Uniform Arbitration Act5 and the
Federal Arbitration Act.6 When a contract containing an arbi-
tration clause involves interstate commerce, issues of federal

 2	
      Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
 3	
      Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169
      (2014).
 4	
      Id.
 5	
      Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016).
 6	
      9 U.S.C. §§ 1 to 16 (2012).
                                     - 184 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
             ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                           Cite as 299 Neb. 180

preemption arise and must be analyzed when ruling on a
motion to compel arbitration in order to determine which act
governs the agreement.7 And when issues of insurance and
arbitration are presented, the applicability and scope of the
McCarran-Ferguson Act8 should also be considered.9 The trial
court’s order did not include any such analysis. However, to
resolve this appeal, it is not necessary to engage in a preemp-
tion analysis, because we find there was a failure of proof
regarding the arbitration agreement itself.
   [2,3] A party cannot be required to submit a dispute to arbi-
tration unless he or she has agreed to do so.10 Arbitration is
purely a matter of contract,11 and thus, our threshold inquiry
here is whether the record shows that Zweiback agreed to sub-
mit future disputes with Tubbergen to binding arbitration.
   Before addressing the merits of this inquiry, we note
Tubbergen has both alleged the existence of and offered evi-
dence of an arbitration agreement signed by Zweiback. This
case is thus factually distinguishable from Pearce v. Mutual
of Omaha Ins. Co.,12 where we lacked jurisdiction over an
appeal from a denial of a motion to compel arbitration. In
Pearce, we held that where no agreement to arbitrate had been
alleged or offered, an order refusing to compel arbitration was
not an appealable order under the Uniform Arbitration Act13

 7	
      See, e.g., Speece, supra note 3; Kremer v. Rural Community Ins. Co., 280
      Neb. 591, 788 N.W.2d 538 (2010).
 8	
      15 U.S.C. §§ 1011 to 1015 (2012).
 9	
      See, e.g., Speece, supra note 3; Kremer, supra note 7.
10	
      See, Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640
      (1996), disapproved on other grounds, Webb v. American Employers
      Group, 268 Neb. 473, 684 N.W.2d 33 (2004).
11	
      Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 637
      N.W.2d 876 (2002).
12	
      Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899
      (2016).
13	
      See § 25-2620(a)(1).
                                     - 185 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
             ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                           Cite as 299 Neb. 180

and was not a final, appealable order under Neb. Rev. Stat.
§ 25-1902 (Reissue 2016). Here, Tubbergen has both alleged
an agreement to arbitrate and offered evidence of the same, so
the concerns present in Pearce are not present here. We con-
clude we have jurisdiction over this appeal,14 and we turn our
attention to whether the arbitration agreements in the record
support Tubbergen’s claim that Zweiback agreed to submit
this dispute to arbitration.
   The 2005 arbitration agreement provides:
      I and USA Financial agree that the following pre-dispute
         agreement to binding arbitration applies to any and
         all controversies arising among USA Financial, USA
      Financial’s Related Persons, My Investment Custodian,
      and Me or My related interests. All claims or controver-
      sies, and any related issues concerning any transaction or
      order; or the construction, performance, or breach of this
      or any other Agreement with Me whether entered into
      prior to, on, or subsequent to the date of this Agreement
      . . . shall be finally and conclusively determined by
      binding arbitration . . . .
The 2007 arbitration agreement contained the same language,
but referred to “USA Advanced Planners” instead of “USA
Financial.”
   It is undisputed that Zweiback signed both the 2005 and
the 2007 arbitration agreements, but whether Tubbergen is a
signatory to, or otherwise is subject to, the arbitration agree-
ments is not evident from either the face of the agreement or
the record. Because arbitration is purely a matter of contract,
we review the arbitration agreements here using basic contract
principles.15 For efficiency, we discuss the terms of the 2005
arbitration agreement, but our analysis applies equally to the
2007 agreement.

14	
      See, Speece, supra note 3; Webb, supra note 10.
15	
      Koricic v. Beverly Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009).
                                     - 186 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
             ZWEIBACK FAMILY L.P. v. LINCOLN BENEFIT LIFE CO.
                           Cite as 299 Neb. 180

   The 2005 arbitration agreement pertains to disputes between
Zweiback and “USA Financial,” “USA Financial’s Related
Persons,” or Zweiback’s “Investment Custodian.” Tubbergen’s
affidavit does not use or reference the agreement’s vernacular,
and instead avers he was “an officer, member and registered
representative” of USA Financial Securities. There is nothing
in his affidavit, or elsewhere in the record, demonstrating that
Tubbergen was Zweiback’s “Investment Custodian” or one of
“USA Financial’s Related Persons,” as those terms are used in
the arbitration agreement. To the extent “Related Persons,” and
“Investment Custodian” appear to be defined terms, neither the
affidavit nor the attachments provide the definition.
   The record is insufficient to demonstrate that the arbitration
agreement between Zweiback and USA Financial Securities
includes disputes between Zweiback and Tubbergen. Without
evidence that Tubbergen is Zweiback’s “Investment Custodian”
or is one of “USA Financial’s Related Persons,” Tubbergen has
not met his burden of proving he is subject to the arbitration
agreement he seeks to enforce.16 The trial court was correct to
deny Tubbergen’s motion to compel arbitration.
                       CONCLUSION
   On the record before us, there is no evidence that the
arbitration agreements between Zweiback and USA Financial
Securities or USA Financial Planners apply to disputes between
Zweiback and Tubbergen. We thus affirm the district court’s
order denying Tubbergen’s motion to compel arbitration.
                                                   A ffirmed.
   Wright, Miller-Lerman, and Funke, JJ., not participating.

16	
      See RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107
      (2014) (where appellees were not signatories to agreement, appellant
      failed to make prima facie showing appellees were subject to arbitration
      clause).
