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Appeal fro the District Court for Lancaster County: KAREN B. FLOWERS, Judge.
Michael J. Mullen, of Burns Law Firm, for appellant.
Justin High, of Taylor, High & Younes, and CeCelia C. Ibson, of Ibson Law Firm, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act, Neb.Rev.Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum.Supp.2012 & Supp.2013), may be reversed, vacated, or modified by an appellate court for errors appearing on the record.
2. Administrative Law: Judgments: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
[286 Neb. 902] 3. Administrative Law: Appeal and Error. In an appeal under the Administrative Procedure Act, an appellate court will not substitute its factual findings for those of the district court where competent evidence supports the district court's findings.
4. Administrative Law: Presumptions: Proof. When challenging the decision of an administrative agency, the presumption under Nebraska law is that the agency's decision was correct, with the burden of proof upon the party challenging the agency's actions.
5. Contracts. Where the terms of a contract are clear, they are to be accorded their plain and ordinary meaning.
6. Contracts. A contract is viewed as a whole in order to construe it.
7. Administrative Law: Appeal and Error. Where a correct result is based upon facts that have not been found by an administrative agency, an appellate court may not affirm on different grounds. But an appellate court is without power to affirm on a different ground only when doing so would usurp the administrative agency's role as a finder of fact or as a maker of policy, or would otherwise intrude upon the domain entrusted to the administrative agency.
The district court, acting as an intermediate court of appeals under the Administrative Procedure Act, affirmed the decision of the director of the Department of
Insurance. At issue on appeal is the appropriate experience modifier (XMod) to be used when calculating the premium owed by Gridiron Management Group, LLC (Gridiron), for its workers' compensation insurance. We affirm the decision of the district court.
In 2007, Gridiron purchased the assets of the Omaha Beef indoor football team, owned by Omaha Beef, LLC. The purchase agreement indicated that Gridiron was purchasing
[286 Neb. 903] [t]he property and other rights ... including but not limited to: all trade names; websites; telephone numbers; football field and related equipment; merchandise; football equipment; uniforms and associated peripherals; lease assignment; pre-paid sales revenue for the [United Indoor Football] 2008 season; operating schedules; ticket holder information; advertising information; sponsorship information; profit and loss statements; office equipment; software; the United Indoor Football League franchise rights; furniture; fixtures; account receivables; leasehold improvements; records; and goodwill....
Gridiron also agreed to assume a limited number of liabilities as set forth in an appendix attached to the agreement.
Gridiron is a Nebraska limited liability company formed for the primary purpose of purchasing and operating the Omaha Beef indoor football team. Following the purchase, Omaha Beef, LLC, remained an active corporation according to the Nebraska Secretary of State's office, but there is no evidence in the record as to whether Omaha Beef, LLC, continued to engage in business activity following the sale of the Omaha Beef football team.
During the first 3 to 4 months of ownership, Gridiron made several improvements to the operation of the team. First, it changed the location where practices were held, moving to a better-lit, safer facility. Unlike Omaha Beef, LLC, Gridiron required at least one, if not two, trainers to be at each practice. Gridiron also hired a full-time team chiropractor, mandated the use of knee braces at practice, and instituted weight training and nutrition programs for players. Gridiron hired a new head coach and increased the size of the coaching staff from two to five. Only a few of the players from the previous years' roster made the team for the 2008 season. Note that in addition to operating the Omaha Beef football team, Gridiron was involved in other business activities, notably the marketing of boxing matches.
In February 2008, Gridiron applied for workers' compensation insurance under the Nebraska Workers' Compensation Plan (NWCP). The NWCP provides a mechanism for purchasing [286 Neb. 904] workers' compensation insurance for employers who cannot obtain such insurance on the open market. The State of Nebraska has contracted with Travelers Indemnity Company (Travelers) to act as carrier for the NWCP, and in such capacity, Travelers is required to provide insurance to every eligible employer who complies with the requirements of the plan and pays the premium. That premium is determined by the National Council on Compensation Insurance, Inc. (NCCI), in accordance with its " Manuals of Rules, Classifications, Rates and Rating Plans." The NCCI uses the " Experience Rating Plan Manual" to assign each applicant with an ...