City of Lincoln v. County of Lancaster , 297 Neb. 256 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/11/2017 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
City of Lincoln, Nebraska, a political subdivision,
appellant, v.County of Lancaster,
a political subdivision, appellee.
___ N.W.2d ___
Filed July 21, 2017. No. S-16-852.
1. Judgments: Statutes: Appeal and Error. Questions of law and statu-
tory interpretation require an appellate court to reach a conclusion inde-
pendent of the decision made by the court below.
2. Insurance: Contracts. The interpretation and meaning of an insurance
policy is a question of law.
3. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s granting of summary judgment if the pleadings
and admissible evidence offered at the hearing show that there is no
genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.
4. Political Subdivisions Tort Claims Act: Immunity: Waiver. The
Political Subdivisions Tort Claims Act allows a limited waiver of a
political subdivision’s sovereign immunity with respect to certain, but
not all, types of tort actions.
5. ____: ____: ____. Claims against a political subdivision that are exempt
from the waiver of sovereign immunity are set forth in Neb. Rev. Stat.
§ 13-910 (Reissue 2012).
6. Appeal and Error. To be considered by an appellate court, an error
must be both specifically assigned and specifically argued in the brief of
the party asserting the error.
7. Political Subdivisions Tort Claims Act: Legislature: Immunity:
Insurance: Waiver. Through enactment of Neb. Rev. Stat. § 13-916
(Reissue 2012), the Legislature allowed a political subdivision to waive
immunity to some extent by purchasing liability insurance.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
8. Insurance: Contracts. In construing insurance policy provisions, a
court must determine from the clear language of the policy whether the
insurer in fact insured against the risk involved.
9. Negligence: Intent. Where acts are voluntary and intentional and the
injury is the natural result of the act, the result was not caused by acci-
dent even though that result may have been unexpected, unforeseen,
and unintended.
10. Appeal and Error. An appellate court is not obligated to engage in
an analysis that is not needed to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Affirmed.
Jeffery R. Kirkpatrick, Lincoln City Attorney, and Elizabeth
D. Elliott for appellant.
Joe Kelly, Lancaster County Attorney, and Douglas D. Cyr
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ.
Cassel, J.
INTRODUCTION
Where a county obtains liability insurance, it waives sov-
ereign immunity from claims covered by the insurance to the
extent stated in the policy.1 The district court granted summary
judgment for a county based upon its policy’s retained insur-
ance limit. But because the county’s policy did not cover the
underlying event, there was no waiver of immunity regardless
of the retained insurance limit. Albeit for a different reason,
we affirm the district court’s summary judgment.
BACKGROUND
In this suit, the City of Lincoln (the City) sued the County
of Lancaster (the County). A deputy sheriff with the County
1
See Neb. Rev. Stat. § 13-916 (Reissue 2012).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
“made physical contact” with a police officer employed by the
City, who the deputy considered a friend. There is no dispute
that the deputy intended the contact. The contact to the offi-
cer’s shoulder was variously described, ranging from “lighter
than a pat” “with an open palm” to a “closed fist punch.”
Unbeknownst to the deputy, the police officer had recently
undergone surgery on the shoulder. The contact injured the
officer’s shoulder, and the City paid slightly more than $63,000
in workers’ compensation expenses for those injuries.
At the time of the incident, the County had a retained limits
insurance policy which included coverage for general liability.
Under the general liability coverage part, for each occurrence
the retained limit was $250,000 and the limits of insurance was
$4,750,000. The policy provided that the retained limit was to
be borne by the County as an uninsured amount.
The City sued the County for reimbursement of expenses
paid on its employee’s behalf. The County set forth a number
of affirmative defenses, including that it was immune from
suit and that it had not waived such immunity. It also affirm­
atively alleged that the Political Subdivisions Tort Claims
Act (the Act)2 did not apply because the claim arose out of
a battery.
The City moved for partial summary judgment, alleging
that the County’s purchase of liability insurance effectively
waived the County’s immunity under § 13-916. The County
subsequently moved for summary judgment in its favor.
The district court sustained the County’s motion for sum-
mary judgment. First, the court determined that the City’s
negligence claim arose from a battery and was barred by the
intentional torts exception under the Act. Second, the court
decided that the County’s procurement of insurance did not
constitute a waiver of its sovereign immunity for the claim.
The court observed that under the terms of the insurance pol-
icy, the insurer was obligated to pay only damages and claims
2
See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
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297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
expenses in excess of the retained limit. The court concluded
that the County’s procurement of insurance did not constitute a
waiver for claims less than $250,000. It reasoned that because
the amount in controversy was $63,418.22, the County did
not waive its sovereign immunity by obtaining insurance for
claims exceeding $250,000.
The City filed a timely appeal, and we moved the case to our
docket.3 We subsequently ordered supplemental briefing, which
we have considered in resolving this appeal.
ASSIGNMENTS OF ERROR
The City assigns that the district court erred (1) by find-
ing that there were no genuine issues of material fact and (2)
by finding that the County was immune and did not waive its
immunity when it purchased liability insurance.
STANDARD OF REVIEW
[1,2] Questions of law and statutory interpretation require an
appellate court to reach a conclusion independent of the deci-
sion made by the court below.4 The interpretation and meaning
of an insurance policy is a question of law.5
[3] An appellate court will affirm a lower court’s granting
of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law.6
ANALYSIS
[4,5] The district court found that the City’s claim arose
from a battery and was barred by the Act’s intentional torts
3
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
4
Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
5
See Drake-Williams Steel v. Continental Cas. Co., 294 Neb. 386, 883
N.W.2d 60 (2016).
6
Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
exception. The Act allows a limited waiver of a political sub-
division’s sovereign immunity with respect to certain, but not
all, types of tort actions.7 Claims against a political subdivision
that are exempt from the waiver of sovereign immunity are set
forth in § 13-910.8 One of those exemptions, the “intentional
torts exception,” provides that the Act shall not apply to “[a]ny
claim arising out of . . . battery . . . .”9
[6] The City’s opening brief did not specifically assign or
argue that the court erred in finding that the City’s claim arose
from a battery. To be considered by an appellate court, an error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error.10 As we have already
summarized, widely varying terms were used to describe the
touching—but they all described an intentional act. The City’s
opening brief did not challenge this characterization.
But in the City’s supplemental brief, it now attempts to
make an argument challenging the court’s characterization of
the touching as a battery. Making such an argument for the first
time in a supplemental brief, as in a reply brief,11 is improper.
Viewing the evidence in the light most favorable to the City
and giving it the benefit of all favorable inferences, we see no
plain error in the court’s finding. Because the claim arose out
of a battery, the County is immune from the City’s suit, unless
it has otherwise waived its immunity.
[7] The City contends that the County waived its immu-
nity by procuring liability insurance. Through enactment of
§ 13-916, the Legislature allowed a political subdivision to
waive immunity to some extent by purchasing liability insur-
ance. The statute provides:
7
See id.
8
See Blaser v. County of Madison, 288 Neb. 306, 847 N.W.2d 293 (2014).
9
§ 13-910(7).
10
State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883
N.W.2d 69 (2016).
11
See Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
The governing body of any political subdivision
. . . may purchase a policy of liability insurance insur-
ing against all or any part of the liability which might
be incurred under the . . . Act and also may purchase
insurance covering those claims specifically excepted
from the coverage of the act by section 13-910. . . . The
procurement of insurance shall constitute a waiver of
the defense of governmental immunity as to those excep-
tions listed in section 13-910 to the extent and only to
the extent stated in such policy. . . . Whenever a claim or
suit against a political subdivision is covered by liabil-
ity insurance or by group self-insurance provided by a
risk management pool, the provisions of the insurance
policy on defense and settlement or the provisions of
the agreement forming the risk management pool and
related documents providing for defense and settlement
of claims covered under such group self-insurance shall
be applicable notwithstanding any inconsistent provi-
sions of the act.12
Under our statute, the terms of the liability policy deter-
mine whether immunity is waived. The policy here does not
explicitly state that it constitutes a waiver of immunity as to
any claim.
The parties have framed the issue as whether immunity is
waived where the claim falls within the political subdivision’s
retained limit or self-insured retention. But we need not reach
that issue if the claim does not fall within the policy’s insur-
ing agreement.
[8] In construing insurance policy provisions, a court must
determine from the clear language of the policy whether the
insurer in fact insured against the risk involved.13 A claim
must fall within the policy’s coverage, and an exclusion must
12
§ 13-916 (emphasis supplied).
13
Drake-Williams Steel v. Continental Cas. Co., supra note 5.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
not be applicable.14 Before considering the effect of a retained
limit or self-insured retention, we examine the terms of the
policy to determine whether it provided coverage for a claim
arising out of a battery.
The “Insuring Agreement” specifies under what circum-
stances the insurer is obligated to pay. The provision for the
general liability coverage part states:
The Insurer will indemnify the Insured for Damages
and Claim Expenses in excess of the Retained Limit
for which the Insured becomes legally obligated to pay
because of a Claim first arising out of an Occurrence
happening during the Policy Period in the Coverage
Territory for Bodily Injury, Personal Injury, Advertising
Injury, or Property Damage taking place during the
Policy Period.
The insuring agreement requires that the claim arise out
of an “occurrence.” The policy defines an “occurrence” with
respect to “bodily injury” as “an accidental happening” which
results in “bodily injury.” Although the policy does not define
“accidental happening,” an “accident” is defined as “an unin-
tended and unexpected harmful event.”
[9] Under the terms of the policy, the insuring agreement
does not provide coverage for bodily injury resulting from
an intentional act. Here, the claim arose out of a battery. “A
harmful contact intentionally done is the essence of battery.”15
Because the contact is intentional, a battery cannot be an
accidental happening. We have previously stated that “inten-
tional acts by definition cannot be accidents.”16 And we have
explained that “where acts are voluntary and intentional and
the injury is the natural result of the act, the result was not
14
See id.
15
Britton v. City of Crawford, supra note 6, 282 Neb. at 382, 803 N.W.2d at
515.
16
See Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697, 702, 625
N.W.2d 213, 217 (2001).
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Nebraska Supreme Court A dvance Sheets
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CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
caused by accident even though that result may have been
unexpected, unforeseen, and unintended.”17 As a matter of
law, there was no “occurrence.” And the parties agree in
their supplemental briefs that a claim for battery does not fall
within the insuring agreement. Because there was no cover-
age for the battery, the County did not waive its immunity for
that claim.
For the sake of completeness, we note that the policy cov-
erage for “personal injury” does not cover a claim arising out
of a battery. The definition of “personal injury” states that it
“means one or more of the following offenses” followed by
a list of offenses. The enumerated offenses include a number
of torts listed in the intentional torts exception of § 13-910(7),
but battery is not one of them. Battery therefore does not fall
within the definition of “personal injury.”
[10] The City recognizes in its supplemental brief that if
the claim arose from a battery, it is unnecessary for us to
determine whether immunity is waived where a claim falls
within the retained limit. An appellate court is not obligated
to engage in an analysis that is not needed to adjudicate the
case and controversy before it.18 But the City nonetheless asks
us to decide the question in the interest of judicial efficiency.
Because the determination as to whether there is a waiver
of immunity may depend on the language of a particular
insurance policy, we decline to make some sort of blanket
pronouncement.
We are not necessarily persuaded that the Legislature envi-
sioned one political subdivision using the Act to sue another
17
Farr v. Designer Phosphate & Premix Internat., 253 Neb. 201, 206,
570 N.W.2d 320, 325 (1997). Cf. Sullivan v. Great Plains Ins. Co., 210
Neb. 846, 854, 317 N.W.2d 375, 380 (1982) (stating that damage to
vehicle, even though result of driver’s own careless behavior, was still “an
accident” within meaning of insurance policy).
18
See Anderson v. Union Pacific RR. Co., 295 Neb. 785, 890 N.W.2d 791
(2017).
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Nebraska Supreme Court A dvance Sheets
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CITY OF LINCOLN v. COUNTY OF LANCASTER
Cite as 297 Neb. 256
subdivision. But we cannot find any provision of law that
would prevent a political subdivision from doing so.
CONCLUSION
Because the claim arose out of a battery and a battery is not
an “occurrence” under the terms of the insurance policy, there
was no possibility of any coverage for the claim under the
policy. For reasons different from those stated by the district
court, we conclude that the County’s procurement of insurance
did not constitute a waiver of immunity as to a claim arising
out of a battery. We affirm the court’s judgment.
A ffirmed.
Stacy, J., not participating.