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City of Lincoln v. County of Lancaster

Supreme Court of Nebraska

July 21, 2017

City of Lincoln, Nebraska, a Political Subdivision, Appellant,
v.
County of Lancaster, a Political Subdivision, Appellee.

         1. Judgments: Statutes: Appeal and Error. Questions of law and statutory interpretation require an appellate court to reach a conclusion independent 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.

         [297 Neb. 257] 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 accident 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, Kelch, and Funke, JJ.

          CASSEL, J.

         INTRODUCTION

         Where a county obtains liability insurance, it waives sovereign 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 insurance 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 [297 Neb. 258] "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 officer'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 ...


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