There is no presumption of a fiduciary relationship between the plaintiff and the defendant merely because they entered into a contract for a policy of dental insurance. Am. Driver Serv., Inc. v. Truck Ins. Exch., 10 Neb.App. 318, 631 N.W.2d 140, 148 (2001). The plaintiff, however, argues that her claim of a fiduciary relationship does not merely rely on the fact that she entered into a contract for a policy of insurance with the defendant.
A cause of action for an accounting accrues when a plaintiff has the right to maintain and institute a suit. American Driver Serv. v. Truck Ins. Exch. , 10 Neb. App. 318, 631 N.W.2d 140 (2001). Therefore, Steven's cause of action first accrued when he was allegedly excluded from the partnership books, not at the time the partnership was dissolved and there was a winding up. Weyh v. Gottsch, supra , is distinguishable because there was no annual settling up or annual accounting record that each partner had an equal right to access and inspect, as there is in this case.
And the plaintiff does not explain how any alleged fiduciary duty would establish a contractual relationship supporting the claim for relief that she has attempted to allege. Some (although not all) contracts can create fiduciary relationships, see Am. Driver Serv., Inc. v. Truck Ins. Exch., 10 Neb.App. 318, 631 N.W.2d 140, 147โ48 (2001), but the Court is aware of no authority suggesting that a fiduciary relationship can give rise to a contract.
Section 25โ207(3) has been applied to actions for an accounting, for example. See American Driver Serv. v. Truck Ins. Exch., 10 Neb.App. 318, 631 N.W.2d 140 (2001;) Jones v. Johnson, 207 Neb. 706, 300 N.W.2d 816, 817 (1981) (also applying ยง 25โ212). provides: โAn action for relief not hereinbefore provided for can only be brought within four years after the cause of action shall have accrued.โ
]" Id. at 772-773. The second case which convinces me that Nebraska would adopt the general rule is American Driver Svc., Inc. v. Truck Ins. Exchange, 631 N.W.2d 140 (Neb.Ct.App. 2001) (holding that no fiduciary relationship existed between insured and insurance company providing workers' compensation coverage where insured sued for overpayment of premiums; thus there was no basis for tolling the statute of limitations). In arriving at this decision, the Nebraska Court of Appeals parsed the meaning of Braesch as it regarded first-party claims.
Proper assessment of a mod factor is an insurer's duty under a workers' compensation policy. American Driver Servs. v. Truck Ins. Exch., 631 N.W.2d 140, 149 (Neb.App. 2001). The question of a party's good faith in the performance of a contract is a question of fact.
In Nebraska, a fiduciary duty "arises out of a confidential relationship which exists when one party gains the confidence of the other and purports to act or advise with the other's interest in mind.American Driver Serv., Inc. v. Truck Ins. Exch., 10 Neb. Ct. App. 318, 324, 631 N.W.2d 140, 145 (2001); Wolf v. Walt, 247 Neb. 858, 870, 530 N.W.2d 890, 898 (1995); Bloomfield v. Nebraska St. Bank, 237 Neb. 89, 465 N.W.2d 144 (1991). As for the fiduciary nature of the relationship of a corporate officer, a corporate officer or director is precluded from acting "in such a manner as to cause or contribute to the injury or damage of the corporation, or deprive it of business[.]"Anderson v. Bellino, 265 Neb. 577, 658 N.W.2d 645, 657 (2003) (quoting 3 W. Fletcher, Cyclopedia of the Law of Private Corporations ยง 861 (rev. perm. ed. 1975)).
FN80. A.W., supra note 2. FN81. American Driver Serv. v. Truck Ins. Exch., 10 Neb.App. 318, 631 N.W.2d 140 (2001). FN82. Degmetich v. Beranek, 188 Neb. 659, 199 N.W.2d 8 (1972).
Johnson v. Radio Station WOW, 144 Neb. 406, 14 N.W.2d 666 (1944), reversed on other grounds 326 U.S. 120, 65 S. Ct. 1475, 89 L. Ed. 569 (1945) (supplemental opinion). See, Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995); Vogt v. Town Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d 496 (1975); American Driver Serv. v. Truck Ins. Exch., 10 Neb. App. 318, 631 N.W.2d 140 (2001). Constructive fraud is a breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud-feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests.
See Nelson v. Production Credit Ass'n of the Midlands, 930 F.2d 599 (8th Cir. 1991) (finding no duty of care between lender and borrower in Nebraska law). See, also, Bloomfield v. Nebraska State Bank, 237 Neb. 89, 465 N.W.2d 144 (1991) (relationship between bank and borrower was not, by itself, sufficient to establish that bank owed fiduciary duty to borrower); American Driver Serv. v. Truck Ins. Exch., 10 Neb.App. 318, 631 N.W.2d 140 (2001) (transactions where parties have competing interests are not compatible with fiduciary relationship). Thus, no legal duty exists to support Siedband's negligence cause of action.