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City of Lincoln v. Dial Realty Development

Court of Appeals of Nebraska

September 29, 2015

City of Lincoln, Nebraska, a municipal corporation, appellant,
v.
Dial Realty Development, a Nebraska corporation, et al., appellees.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge.

Jeffrey R. Kirkpatrick, Lincoln City Attorney, and Timothy S. Sieh for appellant.

David L. Welch and Kellie Chesire Olson, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Dial Realty Development.

Robert S. Keith, of Engles, Ketcham, Olson & Keith, P.C., for appellee Hawkins Construction Company.

Stephen L. Ahl and Nathan D. Anderson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees Charter Oak Fire Insurance Company and Travelers Property Casualty Company of America.

Irwin, Inbody, and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (WEB OPINION)

RIEDMANN, JUDGE.

INTRODUCTION

The City of Lincoln (City) brought this declaratory judgment action against Dial Realty Development (Dial), Hawkins Construction Company (Hawkins), Charter Oak Fire Insurance Company (Charter Oak), Travelers Property Casualty Company of America (Travelers), and Zurich American Insurance Company (Zurich). Each defendant moved for summary judgment and all of the motions were granted. The City appeals the entry of summary judgment in favor of Dial and Hawkins. We find no merit to the City's arguments on appeal and therefore affirm.

BACKGROUND

The factual basis underlying this action relates to a construction project and is undisputed. Dial is a real estate development company. Dial is not a contractor and does not do any construction, paving, or installation on a project. At all relevant times, Dial was insured under two policies: a general liability policy issued by Charter Oak and an umbrella policy from Travelers. Hawkins is a corporation engaged in the construction business. At all relevant times, Hawkins was insured under a commercial general liability policy issued by Zurich.

On January 31, 2007, under Executive Order No. 78340, the City approved Dial's request "to construct Paving of Amaranth Lane . . ." The executive order defined Dial as the project's "Permittee" and noted that Dial, as Permittee, would have the work completed by its own "Contractor." Dial executed an unqualified written acceptance of the terms of the executive order.

The executive order incorporated by reference the "2006 City of Lincoln Standard Specifications for Municipal Construction with the 2006 Supplemental Specifications" (Standard Specifications) and the "General Conditions and General Specifications Applying to Private Construction of Public Facilities" (General Conditions). It further provided that Dial, as "Permittee shall comply with the same, including the filing with the City Engineer of ...


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