Timberlake v. Douglas County

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Nebraska A dvance Sheets
291 Nebraska R eports
TIMBERLAKE v. DOUGLAS COUNTY
Cite as 291 Neb. 387
R achelle L. Timberlake, appellee, v. Douglas County,
Nebraska, a political subdivision of the
State of Nebraska, appellant.
___ N.W.2d ___
Filed July 17, 2015. No. S-14-770.
1. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
2. Statutes. The meaning and interpretation of a statute presents a question
of law.
3. Contracts. The interpretation of a contract and whether the contract is
ambiguous are questions of law.
4. Contracts: Declaratory Judgments. When a declaratory judgment dis-
pute sounds in contract, the action is treated as one at law.
5. Trial: Judgments: Appeal and Error. In a bench trial of a law action,
the trial court’s factual findings have the effect of a jury verdict, which
an appellate court will not disturb on appeal unless clearly wrong.
6. Contracts: Intent. In ascertaining the parties’ intent in a written inte-
grated contract, a court tries to give meaning to all its parts and avoid an
interpretation that renders a material provision meaningless.
7. ____: ____. If a particular contract interpretation renders a material
provision meaningless, that construction is inconsistent with the par-
ties’ intent.
8. ____: ____. A court should avoid interpreting contract provisions in a
manner that leads to unreasonable or absurd results that are obviously
inconsistent with the parties’ intent.
9. ____: ____. Interpretative aids cannot override the parties’ clear intent
when a contract is considered as a whole.
10. Intent: Words and Phrases. The word “include” preceding a list does
not indicate an exclusive list absent other language showing a con-
trary intent.
11. Contracts: Words and Phrases. A court gives written words grouped
together in a list a related meaning.
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12. Employer and Employee: Employment Contracts: Wages: Appeal
and Error. Under Neb. Rev. Stat. § 48-1229 (Reissue 2010), an appel-
late court will consider a payment a wage subject to the Nebraska
Wage Payment and Collection Act if (1) it is compensation for labor
or services, (2) it was previously agreed to, and (3) all the conditions
stipulated have been met.
13. Employer and Employee: Wages. An employee can earn fringe ben-
efits like sick leave and vacation leave just by rendering services.
14. ____: ____. The list of fringe benefits under Neb. Rev. Stat. § 48-1229(3)
(Reissue 2010) is not exclusive.
Appeal from the District Court for Douglas County: W.
M ark Ashford, Judge. Affirmed.
Donald W. Kleine, Douglas County Attorney, Bernard J.
Monbouquette, and Jimmie L. Pinkham for appellant.
John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C.,
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
The appellee, Rachelle L. Timberlake, is an employee of the
Douglas County Department of Corrections. She sustained a
concussion while aiding her supervisor, who was having a sei-
zure. She brought this declaratory judgment action to have the
court determine her right to “injured on duty” (IOD) benefits
under her collective bargaining agreement (CBA). She also
requested attorney fees under the Nebraska Wage Payment and
Collection Act (Wage Act).1
The CBA provides IOD benefits to department employees
who are injured while performing a high-risk duty. The CBA
provides that high-risk duty “includes (1) responding to a
Code, and (2) interaction with an inmate while that inmate
is engaged in an act of violence with the officer, another
1
See Neb. Rev. Stat. §§ 48-1228 to 48-1232 (Reissue 2010).
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inmate or himself/herself.” The dispute centers on whether
this sentence provides a nonexclusive list of high-risk duties
or conjunctive elements that an employee must satisfy to
qualify for benefits. The court concluded that the contract
was unambiguous and awarded Timberlake IOD benefits. It
also awarded her attorney fees under the Wage Act. Although
our reasoning differs somewhat from the court’s reasoning,
we conclude that it correctly ruled Timberlake was injured
while performing a high-risk duty. We affirm.
II. BACKGROUND
Timberlake is a Corrections Officer I for the department.
The terms and conditions of her employment are subject to
a CBA between Douglas County and the Fraternal Order of
Police, Lodge No. 8. Timberlake worked as an escort at the
county jail, relieving officers who are assigned to specific
housing units and escorting inmates who are moved through
the facility. Her specific position was entitled “2 Delta Escort
R1”: “2 Delta” referred to her floor assignment. Apart from
her other duties, “R1” meant she was a first responder for any
emergencies in the facility.
On July 22, 2011, she saw her supervisor go limp and start
to slide out of his chair during a seizure. While trying to pro-
tect him from hitting his head, she lost her balance and hit her
own head against a concrete wall, sustaining a concussion. She
called a “code green,” which is a request for medical personnel
to assist in an area. She said she called a code green because
her supervisor was in severe distress and she wanted medical
personnel there to assist them.
Soon after the accident, Timberlake was taken to the hos-
pital and missed several days of work. When she returned
to work, she requested IOD benefits. She received workers’
compensation temporary disability benefits. But IOD benefits
ensure that a qualified employee receives his or her full sal-
ary starting on the day of the injury, which is greater com-
pensation than workers’ compensation benefits provide. The
department’s director, Mark Foxall, denied Timberlake IOD
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Cite as 291 Neb. 387
benefits, and she sought review by the IOD committee, estab-
lished under the CBA. The committee recommended that she
be granted IOD benefits because her actions were in response
to an emergency. Foxall again denied benefits. He stated in a
letter to Timberlake that “while a code is involved, it neither
involves an inmate nor were there any acts of violence.”
After exhausting her administrative remedies, she filed this
declaratory judgment action and sought attorney fees under
the Wage Act. She alleged that IOD benefits are wages under
the Wage Act and that the county violated the act by denying
her these benefits.
Timberlake testified that there are five color codes an offi-
cer might send to others in the facility. She said a code blue
means an officer needs assistance, while a code green means
the officer needs medical personnel. A code red alerts officers
to a fire, and a code orange alerts officers to an escape. Finally,
an officer sends a code yellow to signal a false alarm.
Foxall testified that a code blue was a request for assistance
in response to some type of violence, such as an altercation
between inmates or between inmates and staff. He said an
officer might also call a code blue for assistance if an inmate
was menacing or threatening in any manner. Foxall admitted
that Timberlake had a duty to respond to any code called by
an officer in her area and a duty to respond to any emergency
she witnessed that would warrant an officer calling a code. He
admitted that the physical incapacity of a corrections officer
could pose a security threat and should be reported. He could
not recall whether he had authorized IOD benefits for an
employee injured while responding to a code other than a code
blue. He said he had typically authorized benefits for employ-
ees responding to a code blue involving an inmate, because the
CBA authorized that. He admitted that the CBA’s list of high-
risk duties was nonexclusive.
At the close of the evidence, the county argued that the
CBA unambiguously excluded IOD benefits for injuries sus-
tained in the circumstances presented by Timberlake’s claim.
Nonetheless, it requested that the court allow it to come back
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TIMBERLAKE v. DOUGLAS COUNTY
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and present extrinsic evidence about the CBA’s meaning if the
court concluded that the contract was ambiguous. Its attorney
stated that the county could present the testimony of two nego-
tiators but did not state what their testimony would show. The
court, however, stated from the bench that the CBA provided a
nonexclusive list of high-risk duties and that the facts showed
the CBA entitled Timberlake to IOD benefits.
In its written order, the court stated that after hearing
Timberlake’s and Foxall’s testimonies, it concluded that the
meaning of article 25 of the CBA was unambiguous. It stated
that article 25, which governs IOD benefits, did not specify
the type of code that an employee must be responding to in
order to receive IOD benefits for an injury. It concluded that
Timberlake was injured while performing a high-risk duty and
responding to a code green.
The court found that Timberlake had lost pay for 73.75
hours that the county should have paid to her as IOD ben-
efits. It ordered the county to pay her for these hours, minus
the workers’ compensation disability benefits that she had
received, for a total of $1,075.20 in benefits. The court further
determined that Timberlake was entitled to attorney fees under
§ 48-1231 of the Wage Act, thereby implicitly determining
that IOD benefits were part of Timberlake’s negotiated wages
under the CBA.
III. ASSIGNMENTS OF ERROR
The county assigns that the court erred as follows:
(1) finding that Timberlake sustained an injury while per-
forming a high-risk duty as set out in article 25 of the CBA;
(2) concluding that article 25 clearly and unambiguously
defines a high-risk duty;
(3) excluding extrinsic evidence of the parties’ intent in
drafting article 25, which was described to the court in an offer
of proof; and
(4) concluding that IOD benefits are wages under the Wage
Act and awarding attorney fees to Timberlake.
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TIMBERLAKE v. DOUGLAS COUNTY
Cite as 291 Neb. 387
IV. STANDARD OF REVIEW
[1-3] We independently review questions of law decided
by a lower court.2 The meaning and interpretation of a statute
presents a question of law.3 The interpretation of a contract and
whether the contract is ambiguous are questions of law.4
[4,5] When a declaratory judgment dispute sounds in con-
tract, the action is treated as one at law.5 In a bench trial of
a law action, the trial court’s factual findings have the effect
of a jury verdict, which an appellate court will not disturb on
appeal unless clearly wrong.6
V. ANALYSIS
1. Timberlake Was Performing a High-R isk
Duty When She Was Injured
As noted, the crux of this appeal is the meaning of a high-
risk duty under article 25 of the CBA. We have considered the
meaning of a high-risk duty in only one other case.
In Mitchell v. County of Douglas,7 we held that a deputy
sheriff was not performing a high-risk duty when he sus-
tained a heart attack while training on an obstacle course
that included a firing range. The county resolution that cre-
ated the injured-on-duty policy did not define a high-risk
duty or specify any conduct that constituted such a duty. We
concluded that the phrase “high-risk duty” meant something
more than routine employment duties. We cited common
dictionary understandings of these words to conclude that
an officer must be exposed to a “greater hazard or danger
than one would normally encounter in the course of his
2
Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 N.W.2d 742
(2015).
3
Id.
4
See David Fiala, Ltd. v. Harrison, 290 Neb. 418, 860 N.W.2d 391 (2015).
5
See Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).
6
Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).
7
Mitchell v. County of Douglas, 213 Neb. 355, 329 N.W.2d 112 (1983).
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employment.”8 We gave examples of conduct that would
satisfy that definition: an officer pursuing a fleeing felon or
attempting to charge a building where a felon had secured
himself. In contrast, we concluded that the officer’s risks of
injury on the obstacle course flowed only from his own care-
lessness or gradual physical infirmity.
Although the county relied on Mitchell at oral argument,
it does not resolve this dispute. First, we specifically stated
in Mitchell that our examples of high-risk duties were not
intended to define the term in its entirety. Obviously, our
examples would not be applicable to an employee working in
a corrections facility. More important, unlike the resolution
considered in Mitchell, here we are analyzing a negotiated
CBA with language showing the parties’ intent of the type of
duty the officer must be performing to qualify for IOD ben-
efits. So we turn to that language.
(a) Article 25 Does Not Set Out
Conjunctive Elements
Section 1 of article 25 makes sustaining an injury while
performing a high-risk duty a condition for receiving the ben-
efits and specifies conduct that satisfies that requirement:
Injured on duty will mean that a Corrections Officer,
while in the employ of the Douglas County Corrections
Department, is injured while performing high risk duty,
including responding to a Code, and that said injury is
a direct result of that high risk duty. “High risk duty”
includes: (1) responding to a Code and (2) interac-
tion with an inmate while that inmate is engaged in
an act of violence with the officer, another inmate or
himself/herself. A Correction[s] Officer so injured will
not be required to use his/her sick leave while recov-
ering from said injury for the first . . . (180) working
days of the recovery period or until he/she has reached
maximum medical improvement, whichever comes first.
8
Id. at 359, 329 N.W.2d at 114.
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The determination of whether an employee is entitled
to [IOD] benefits shall be made by the Director or his/
her designee.
(Emphasis supplied.)
The county argues that items (1) and (2) in the itali-
cized sentence are essential and conjunctive elements, both
of which must be satisfied before an employee is eligible for
IOD benefits. We disagree.
[6,7] First, in ascertaining the parties’ intent in a writ-
ten integrated contract, a court tries to give meaning to all
its parts and avoid an interpretation that renders a material
provision meaningless.9 If a particular contract interpretation
renders a material provision meaningless, that construction
is inconsistent with the parties’ intent.10 The county obvi-
ously considers item (1) to be a material provision because
it argues that it is an essential element. But construing the
contract to mean that subsection (2) must always be satisfied
renders subsection (1) meaningless. That is, if the drafters
had intended that an officer must always be interacting with
a violent inmate when injured to qualify for IOD benefits,
they had no need to include “responding to a Code” as an
additional element.
Second, article 25 puts more emphasis on responding to
a code than interacting with a violent inmate. Significantly,
the first sentence of section 1 makes responding to a code a
high-risk duty without mentioning interaction with a violent
inmate. So the second sentence operates to expand the type
of conduct that is considered a high-risk duty. It clarifies that
such duties include responding to a code and interacting with
a violent inmate. But the first sentence’s separate statement
that responding to a code is a high-risk duty refutes the coun-
ty’s argument that an officer must have been both responding
9
See, Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015);
Gies v. City of Gering, 13 Neb. Ct. App. 424, 695 N.W.2d 180 (2005).
10
See, Gies, supra note 9; Restatement (Second) of Contracts § 203,
comment b. (1981).
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to a code and interacting with a violent inmate to qualify for
IOD benefits.
Moreover, even if the county’s alternative argument were
correct—that article 25 is at least ambiguous—the court spe-
cifically stated that the meaning of article 25 was unambigu-
ous in the light of Timberlake’s and Foxall’s testimonies. The
evidence showed that only a code blue is sent to request
assistance with a violent or menacing inmate and that other
codes are unrelated to that situation. But to conclude that both
items (1) and (2) are essential elements would disqualify an
officer who was suddenly attacked and injured by a violent
inmate and did not have time to call a code blue. Subduing a
violent inmate would obviously pose a high risk of injury to an
officer. Yet, the officer would only be confronted with a code
blue emergency—not responding to a code blue. We note that
the county specifically argues that because Timberlake called
a code green after she was injured, she was not responding to
a code green.11
[8] Similarly, an officer injured while responding to a code
red for a fire would not be entitled to benefits unless the
officer was injured because he or she was interacting with
a violent inmate. So the extrinsic evidence shows that the
county’s interpretation of the contract would result in officers
being denied IOD benefits even if they were injured while
performing duties that carried a high risk of injury. And a
court should avoid interpreting contract provisions in a man-
ner that leads to unreasonable or absurd results that are obvi-
ously inconsistent with the parties’ intent.12
We also reject the county’s position at oral argument that
interpreting article 25 to authorize benefits when an officer is
only responding to a code would necessarily include respond-
ing to a code yellow for false alarms. It argued that this would
11
See brief for appellant at 8-9.
12
See Davidson v. First American Ins. Co., 129 Neb. 184, 261 N.W. 144
(1935). Accord, Restatement, supra note 10, § 203 and comment c.; 17A
Am. Jur. 2d Contracts § 338 (2004).
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be an absurd result that the parties could not have intended.
But this argument fails to create a latent ambiguity in the
contract. A code yellow does not require an officer to respond
to an emergency—it requires the officer to stop responding.
Finally, Foxall stated at trial that the list of high-risk duties
was not exclusive. So even if resort to extrinsic evidence had
been necessary, the court was not clearly wrong in rejecting
the county’s argument that an officer must be interacting with
a violent inmate to qualify for IOD benefits.
In sum, the court did not have to resort to extrinsic evidence
to determine that the county’s “conjunctive elements” interpre-
tation of the CBA was unreasonable. Nonetheless, we agree
with its conclusion that article 25 unambiguously authorizes
IOD benefits for an officer who is injured while responding
to an emergency code. The county’s interpretation is contrary
to the parties’ clear intent in the CBA to provide benefits to
employees who are injured while performing a high-risk duty,
including responding to a code.
But we disagree with the court that Timberlake was respond-
ing to a code when she was injured. The county correctly
argues that she called a code green after she was injured. The
court also concluded, however, that Timberlake was perform-
ing a high-risk duty. Whether that conclusion is correct hinges
on whether article 25 sets out an exclusive or nonexclusive list
of conduct that qualifies as a high-risk duty.
(b) Article 25’s List of High-Risk
Duties Is Nonexclusive
In interpreting a statute, the Nebraska Court of Appeals
has explicitly interpreted the word “include” to designate a
nonexclusive list.13 Generally, absent other words or a context
showing a contrary intent, courts in other jurisdictions have
similarly held that a statutory or regulatory list preceded by
13
See Spracklin v. Spracklin, 21 Neb. Ct. App. 271, 837 N.W.2d 826 (2013).
See, also, Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d
203 (1994).
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some variation of the word “include” designates a nonexclu-
sive enumeration of components within the subject matter.14 It
“conveys the conclusion that there are other items includable,
though not specifically enumerated by the statutes.”15 Courts
usually do not interpret a statutory list that is preceded by
the word “includes” as though the statute contained the word
“means,” and absent a conflicting statutory provision, the word
“include” does not create a doubt whether the listed com-
ponents are exclusive.16 Additionally, some courts have also
explicitly concluded that the word “include” preceding a list in
a contract has an expansive meaning, absent any language or
context showing a more restrictive intent.17
We agree. Adopting a rule of nonexclusivity for our contract
interpretation cases is consistent with our statutory interpreta-
tion cases.18 It is also consistent with the way we have applied
a rule of exclusivity to lists that were not preceded by the
word “include.” Specifically, we have applied the principle
14
See, American Surety Co. of New York v. Marotta, 287 U.S. 513, 53 S. Ct.
260, 77 L. Ed. 466 (1933); Richardson v. National City Bank of Evansville,
141 F.3d 1228 (7th Cir. 1998); Picayune Tribe v. Brown, 229 Cal. App. 4th
1416, 178 Cal. Rptr. 3d 563 (2014); Friends for Murray v. Dept. of Human
Serv., 2014 IL App (5th) 130481, 9 N.E.3d 577, 380 Ill. Dec. 906 (2014);
Connerty v. Metropolitan Dist. Com’n, 398 Mass. 140, 495 N.E.2d 840
(1986), abrogated on other grounds, Jean W. v. Com., 414 Mass. 496, 610
N.E.2d 305 (1993); Jackson v. Charlotte Mecklenburg Hosp., 768 S.E.2d
23 (N.C. App. 2014); DEP v. Cumberland Coal Resources, LP, 102 A.3d
962 (Pa. 2014).
15
Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968), quoted in 2A
Norman J. Singer & Shambie Singer, Statutes and Statutory Construction
§ 47:7 (7th ed. 2014).
16
See, Federal Election Com’n v. Mass. Citizens for Life, 769 F.2d 13 (1st
Cir. 1985). But see Leach v. Monumental Life Ins. Co., 118 N.C. App. 434,
455 S.E.2d 450 (1995), reversed 342 N.C. 408, 464 S.E.2d 46.
17
See, e.g., Ruffin v. RadioShack Corp., 49 Kan. App. 2d 92, 305 P.3d 669
(2013); Empire Mut. Ins. Co. v. Applied Sys. Dev. Corp., 121 A.D.2d 956,
505 N.Y.S.2d 607 (1986). See, also, Enis v. Continental Illinois Nat. Bank,
795 F.2d 39 (7th Cir. 1986).
18
See, Sindelar, supra note 13; Spracklin, supra note 13.
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of expressio unius est exclusio alterius (the expression of one
thing is the exclusion of the others), when interpreting both
statutes and contracts.19
[9,10] We recognize that some courts have concluded that
the word “include,” standing alone, is ambiguous whether
the contracting parties meant for the word to be expansive
or restrictive.20 But we are not persuaded by these cases.
Concluding that the parties’ intent regarding a list is ambiguous
if a list is preceded only by the verb “include” is contrary to
its plain and ordinary meaning. The word “include” means “1.
to contain, embrace, or comprise, as a whole does parts or any
part or element . . . 2. to place in an aggregate, class, category,
or the like. 3. to contain as a subordinate element; involve as a
factor.”21 Contrary to the county’s argument, these definitions
support the conclusion that enumerated items in a list preceded
by the word “include” are normally a part of the whole—not
that the parts restrict the whole. Particularly in legal contexts,
the “participle including typically indicates a partial list,” and
this meaning holds true whether or not the drafter(s) added
emphatic language such as “including but not limited to.”22
Obviously, interpretative aids cannot override the parties’ clear
intent when a contract is considered as a whole. But the word
“include” preceding a list does not indicate an exclusive list
absent other language showing a contrary intent.23
19
See, e.g., Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014);
Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014);
O’Gara Coal Co. v. Chicago, M. & St. P. R. Co., 114 Neb. 584, 208 N.W.
742 (1926).
20
See, Guerrant v. Roth, 334 Ill. App. 3d 259, 777 N.E.2d 499, 267 Ill. Dec.
696 (2002); Great Nat. Corp. v. Campbell, 687 S.W.2d 450 (Tex. App.
1985).
21
Webster’s Encyclopedic Unabridged Dictionary of the English Language
720 (1989).
22
See Black’s Law Dictionary 880 (10th ed. 2014).
23
Compare, e.g., Anderson Excavating Co. v. Neth, 275 Neb. 986, 751
N.W.2d 595 (2008).
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At oral argument, the county stated that other provisions
in the CBA show that when the parties intended the word
“include” to be expansive, they included clarifying language.
It argued that the absence of such language in article 25 shows
they did not intend the word “include” to be expansive. We
disagree that any emphatic language used in other provisions
controls the meaning of article 25.
For example, in article 2 of the CBA, the county asserted
that its management rights “include, but are not limited to,” a
specified lists of powers. As stated, however, language added
to emphasize that a list is not exclusive is unnecessary because
it means the same thing. It does not change the meaning of
“include.” So the absence of emphatic language in article 25
does not change our analysis of the parties’ intent. We con-
clude that the list of high-risk duties in article 25 is unambigu-
ously nonexclusive. That leads us to whether Timberlake was
injured while performing a high-risk duty.
(c) Article 25 Controls the Meaning
of High-Risk Duty
The county argues that “[g]iving first aid is not a high risk
activity.”24 But article 25 provides IOD benefits for employees
injured while responding to a code, which includes a code
green for medical emergencies. By including “responding to a
Code” as a high-risk duty, the parties implicitly concluded that
the risk of injury while responding to a medical emergency
code is sufficient to warrant IOD benefits.
[11] Although Timberlake was not responding to a code
green, her conduct—responding to a medical emergency—
was within the meaning of a high-risk duty under article 25.
Words are known by the company they keep, so a court gives
written words grouped together in a list a related meaning.25
24
Brief for appellant at 7.
25
See, State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013); 11 Samuel
Williston, A Treatise on the Law of Contracts § 32:6 (Richard A. Lord ed.,
4th ed. 2012).
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And her duty to respond to a medical emergency was indis-
tinguishable from her duty to respond to a code green. We
note Foxall admitted that an incapacitated officer presents a
security risk and that Timberlake had a duty to respond to any
emergency she witnessed. So Timberlake unquestionably had a
duty to respond to this medical emergency. And if she had been
injured while responding to a code green, her injury would
have occurred while she was performing a listed high-risk duty
under article 25. Because her conduct was indistinguishable
from a duty explicitly made a high-risk duty by article 25, we
conclude that she was injured while performing an unlisted
high-risk duty.
2. Court Properly Awarded Attorney
Fees Under the Wage Act
The county argues that under § 48-1229(4), IOD benefits
are not compensation under the Wage Act. Timberlake argues
that IOD benefits are fringe benefits under the act, which the
county was obligated to pay her under the CBA. We briefly set
out the act’s relevant definitions and requirements.
[12] Section 48-1229(4) defines wages as “compensa-
tion for labor or services rendered by an employee, includ-
ing fringe benefits, when previously agreed to and condi-
tions stipulated have been met by the employee, whether
the amount is determined on a time, task, fee, commission,
or other basis.” (Emphasis supplied.) Section 48-1229(3)
provides that fringe benefits “includes sick and vacation
leave plans, disability income protection plans, retirement,
pension, or profit-sharing plans, health and accident benefit
plans, and any other employee benefit plans or benefit pro-
grams regardless of whether the employee participates in
such plans or programs.” Section 48-1230(1) provides that
unless otherwise stated in the act, “each employer shall pay
all wages due its employees on regular days designated by
the employer or agreed upon by the employer and employee.”
Under § 48-1229, we will consider a payment a wage subject
to the Wage Act if (1) it is compensation for labor or services,
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TIMBERLAKE v. DOUGLAS COUNTY
Cite as 291 Neb. 387
(2) it was ­previously agreed to, and (3) all the conditions
stipulated have been met.26
The county admits that in the CBA, the parties agreed to
IOD benefits for injured employees who are unable to work.
But it argues that the benefits are not wages for the same rea-
son: “The benefit she seeks is not for her labor and services
but rather is one negotiated for her by her union in the CBA
specifically for injured employees who are unable to provide
labor or services.”27 This argument is without merit.
[13] Section 48-1229(4) specifically defines wages to
include fringe benefits that an employer agrees to pay on a
“time, task, fee, commission, or other basis.” And in the case
the county relies on, we explained that an employee can earn
fringe benefits like sick leave and vacation leave just by ren-
dering services.28
[14] Additionally, the list of fringe benefits under
§ 48-1229(3) is not exclusive. It specifically defines fringe
benefits to include sick leave, health and accident benefit
plans, and any other employee benefit plans. We have implic-
itly interpreted this provision to include fringe benefits that are
not explicitly listed in the statute. Specifically, we have held
that the cash value of a life insurance policy can be wages
under the act when the evidence shows the employer agreed
to pay it to an employee upon his separation of employment.
In Sindelar v. Canada Transport, Inc.,29 we held that the cash
value was a fringe benefit under § 48-1229(3). We rejected
the argument that the policy was an employee benefit plan.
Instead, we held that its cash value was deferred compensation.
It therefore “amounted to a fringe benefit, as it was in the form
of a pension.”30
26
Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).
27
Brief for appellant at 14.
28
See Fisher, supra note 26.
29
Sindelar, supra note 13.
30
Id. at 568, 520 N.W.2d at 209.
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Nebraska A dvance Sheets
291 Nebraska R eports
TIMBERLAKE v. DOUGLAS COUNTY
Cite as 291 Neb. 387
The same principle applies here. Article 25 provides that a
corrections officer injured while performing a high-risk duty
“will not be required to use his/her sick leave while recover-
ing from said injury for the first . . . (180) working days of
the recovery period or until he/she has reached maximum
medical improvement, whichever comes first.” This provision
shows that IOD benefits are in the same class as sick leave
benefits because they are intended to benefit an employee
who is unable to work because of sickness or disability. They
are not awarded on a time basis, but they are awarded for
services rendered if the employee was performing a high-risk
duty when injured. The court did not err in concluding that
the unpaid benefits were negotiated wages that the county
failed to pay. Accordingly, it properly awarded Timberlake
attorney fees.
VI. CONCLUSION
We reject the county’s argument that article 25 sets out
conjunctive, essential elements that an employee must satisfy
to qualify for IOD benefits. We reject its argument that article
25 is ambiguous and conclude that this provision sets out
a nonexclusive list of high-risk duties. We therefore do not
address the county’s argument that the court erred in failing to
consider its extrinsic evidence of the parties’ intent. We con-
clude that Timberlake was performing a high-risk duty when
she was injured, because her conduct was indistinguishable
from conduct that article 25 explicitly listed as a high-risk
duty. Finally, we conclude that the court correctly awarded
Timberlake attorney fees for collecting unpaid fringe benefits
under the CBA.
A ffirmed.