- 926 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

Gage County, Nebraska, appellant, v. 

Employers Mutual Casualty 

company, appellee.

___ N.W.2d ___

Filed January 31, 2020. No. S-18-1118.

1. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, the court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives such party the 

benefit of all reasonable inferences deducible from the evidence.

2. Declaratory Judgments: Appeal and Error. In an appeal from a 

declaratory judgment, an appellate court, regarding questions of law, has 

an obligation to reach its conclusion independently of the conclusion 

reached by the court below.

3. Insurance: Contracts: Appeal and Error. The interpretation of an 

insurance policy presents a question of law that an appellate court 

decides independently of the trial court.

4. Insurance: Contracts. A court construes insurance contracts like 

other contracts, according to the meaning of the terms that the parties 

have used.

5. ____: ____. In construing an insurance contract, a court must give effect 

to the instrument as a whole and, if possible, to every part thereof.

6. Insurance: Contracts: Proof. In a coverage dispute between an insured 

and the insurer, the burden of proving prima facie coverage under a 

policy is upon the insured.

7. ____: ____: ____. If the insured meets the burden of establishing coverage of the claim, the burden shifts to the insurer to prove the applicability of an exclusion under the policy as an affirmative defense.

8. Insurance: Contracts. Contracts of insurance, like other contracts, 

are to be construed according to the sense and meaning of the terms 

which the parties have used, and if they are clear and unambiguous, 

their terms are to be taken and understood in plain, ordinary, and popular sense.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/14/2020 12:08 AM CST
- 927 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

9. Contracts. When the terms of a contract are clear, a court may not 

resort to rules of construction, and the terms are to be accorded their 

plain and ordinary meaning as the ordinary or reasonable person would 

understand them.

10. Insurance: Contracts. In situations involving the interplay between primary and umbrella coverages, courts should examine the overall pattern 

of insurance and construe each policy as a whole.

Appeal from the District Court for Lancaster County: 

Jodi L. Nelson, Judge. Reversed and remanded for further 

proceedings.

Joel D. Nelson and Joel Bacon, of Keating, O’Gara, Nedved 

& Peter, P.C., L.L.O., for appellant.

Karen K. Bailey and L. Paige Hall, of Engles, Ketcham, 

Olson & Keith, P.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

This is a declaratory judgment action brought by Gage 

County, Nebraska, alleging that its insurer, Employers Mutual 

Casualty Company (EMC), has defense and indemnity obligations for federal court judgments entered against Gage County 

in 2016. The district court overruled Gage County’s motion 

for partial summary judgment and entered summary judgment 

in favor of EMC. We reverse the district court’s decision and 

remand the cause for further proceedings.

I. BACKGROUND

The following background describes the judgments underlying Gage County’s insurance claim, the nature of the insurance dispute between Gage County and EMC, and the district 

court’s decision granting summary judgment in favor of EMC.

1. Murder and Prosecution

Helen Wilson was raped and murdered in Beatrice, Nebraska, 

on February 5, 1985. After months of investigation, the case 
- 928 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

became cold. In 1989, Gage County Sheriff Jerry DeWitt and 

five deputy sheriffs—Burdette Searcey; Wayne Price, who 

was also a psychologist; Gerald Lamkin; Kent Harlan; and 

Mark Meints—reopened the investigation. DeWitt, Searcey, 

and Price were the primary investigators and interviewed multiple witnesses and suspects.

After the additional investigative efforts, the Gage County 

Attorney Richard Smith charged six people with crimes 

related to Wilson’s death: Joseph White, James Dean, Kathleen 

Gonzalez, Thomas Winslow, Ada Joann Taylor, and Debra 

Shelden. They became known as the Beatrice Six. Dean, 

Gonzalez, Taylor, and Shelden agreed to plead guilty and 

testify against White and Winslow. In November 1989, a jury 

convicted White of Wilson’s murder, and in December 1989, 

Winslow entered a no contest plea. Nearly two decades later, 

the Beatrice Six were exonerated after DNA evidence showed 

that they were not present at the crime scene. In 2009, the 

Nebraska Board of Pardons granted pardons to each member 

of the Beatrice Six.

2. Civil Rights Lawsuits

In July 2009, five members of the Beatrice Six filed civil 

rights lawsuits in the U.S. District Court for the District of 

Nebraska. The sixth member, Shelden, filed suit in 2011, and 

the cases were consolidated. The defendants were Gage County, 

the Gage County sheriff’s office, the Gage County Attorney’s 

office, and, in their individual and official capacities, DeWitt, 

Smith, Searcey, Price, Lamkin, Harlan, and Meints. The complaints alleged that the defendants had manufactured and 

coerced false or misleading evidence for the purpose of arresting, prosecuting, convicting, and imprisoning the Beatrice Six 

for Wilson’s death. The complaints alleged that the defendants 

made intentional misrepresentations in arrest warrants, utilized 

improper interrogation techniques, conducted a reckless investigation, and intentionally prosecuted the plaintiffs without 

proper evidentiary support. The complaints asserted claims 

for malicious prosecution, false arrest, conspiracy, and having 
- 929 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

policies, practices, and customs that deprived the plaintiffs of 

their civil rights.

3. Insurance Policies

On February 2, 1989, Gage County purchased three insurance policies from EMC: (1) a commercial general liability 

(CGL) policy, (2) a linebacker policy, and (3) an umbrella 

policy. The effective period of the three policies was from 

February 2, 1989, to February 2, 1990.

(a) CGL Policy

The CGL policy was written on an occurrence basis, with a 

$1 million limit per occurrence and $2 million aggregate limit. 

Under the insuring clause, EMC agreed to pay sums that Gage 

County becomes legally obligated to pay as damages because 

of “‘personal injury’ . . . to which this insurance applies.” The 

policy states, “This insurance applies to ‘personal injury’ only 

if caused by an offense: (1) [c]ommitted . . . during the policy 

period; and (2) [a]rising out of the conduct of your business . . 

. .” The policy defines “personal injury” to mean “injury, other 

than ‘bodily injury,’ arising out of one or more of the following offenses: . . . [f]alse arrest, detention or imprisonment [or] 

[m]alicious prosecution.”

An endorsement to the CGL policy excludes coverage for 

“‘personal injury’ . . . due to the rendering [of] or failure to 

render any professional service.” The endorsement applies to 

“any and all professional services” but the term “professional 

services” is not defined in the CGL policy or endorsement.

(b) Linebacker Policy

The linebacker policy is a claims-made policy covering losses 

from errors or omissions in the discharge of organizational 

duties. The linebacker policy excludes coverage for “[a]ny 

liability for personal injury” (emphasis omitted). Like that of 

the CGL policy, the linebacker policy’s definition of “personal 

injury” includes injury arising out of the offenses of false 

arrest, detention, or imprisonment or malicious prosecution. 
- 930 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

The linebacker policy similarly excludes liability arising from 

the “rendering [of] or failure to render professional services” 

(emphasis omitted). The policy defines “professional services” 

as “anyone employed in any of the following professions while 

performing their duties as such”:

1. The practice of medicine, such as (but not limited to) 

physician, surgeon, osteopath, chiropractor, anesthesiologist, dentist, psychiatrist, psychologist, nurse, paramedic, 

EMT, pharmacist, etc.

2. The practice of law (including the judiciary).

3. The practice of accounting.

4. Architects, engineers, surveyors or draftsmen.

Gage County does not contend that the linebacker policy 

provides coverage for the federal court judgments. In not doing 

so, Gage County acknowledges that the linebacker policy is a 

claims-made policy and that no claims were made during the 

effective period.

(c) Umbrella Policy

The umbrella policy covers “loss in excess of the primary 

limit” of the policies “listed in Schedule A . . . because of 

. . . Personal Injury” (emphasis omitted). Schedule A lists both 

the CGL policy and the linebacker policy issued by EMC to 

Gage County. In an endorsement applicable to political subdivisions, coverage under the umbrella policy was expressly 

conditioned on the availability of coverage under a primary 

policy described in schedule A. Like the two other policies, 

the umbrella policy’s definition of “personal injury” includes 

injuries arising out of the offenses of false arrest, detention, 

or imprisonment or malicious prosecution. Under certain circumstances, the umbrella policy will drop down and provide 

primary coverage if the primary aggregate limit is totally 

used up.

The umbrella policy contains an exclusion for liability arising out of “professional liability” or “excluded occupations 

liability,” but the exclusion states that it does not apply to 

the extent that “professional or excluded occupations liability 
- 931 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

coverage” is provided by a CGL policy (emphasis omitted). 

The umbrella policy defines “professional liability” as “liability arising out of the rendering of a service relating to a profession in a manner which is reasonable and in keeping with the 

standards of that profession and formal accreditation or failure 

to render a service.” The definition

includes but is not necessarily limited to, professions 

such as:

A. The practice of medicine, i.e., physician, surgeon, 

osteopath, chiropractor, anesthesiologist, dentist, psychiatrist, psychologist, nurse, paramedic, EMT, pharmacist, etc.

B. The practice of law

C. The practice of accounting

D. Insurance sales or consulting

E. Real estate sales or management

F. Architects, engineers, surveyors, or draftsmen

G. Stockbrokers

The umbrella policy separately defines “excluded occupations liability” as

liability arising out of the rendering of a service relating 

to an occupation listed below or the failure to render a 

service:

A. A Director or Officer of an Organization

B. Data Processing or Computer Software Development

C. Law Enforcement

D. Travel Agents

E. Publishers, Printers, or Broadcasters[.]

4. Tender of Defense

In July 2009, Gage County tendered defense of the first 

five Beatrice Six lawsuits to EMC and provided copies of the 

five complaints which had been filed. In October, EMC denied 

Gage County’s request for a defense and indemnification under 

all three insurance policies. EMC denied coverage under the 

linebacker policy, because no claims were brought during the 

policy period, from 1989 to 1990.
- 932 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

With respect to the CGL policy, EMC noted it covered 

personal injury arising out of offenses such as false arrest 

or imprisonment and malicious prosecution. However, EMC 

stated that the professional services exclusion applied. EMC 

stated:

The lawsuits filed by the Plaintiffs against you allege the 

use of improper investigative techniques, improper training techniques, malicious prosecution, false arrest and 

conspiracy to violate civil rights. A professional service 

has been determined to be a service involving specialized skill, training or knowledge. Your investigation 

leading to the arrests of the Plaintiffs involved special 

skill, training and knowledge, which constitutes a professional service.

EMC stated that it did not have a duty under the CGL policy 

to defend or indemnify Gage County in the lawsuits. EMC 

denied coverage under the umbrella policy due to the professional liability and excluded occupations liability exclusions. 

That section of the denial letter stated:

The definition of “professional liability” includes “the 

practice of law” and psychiatry or psychology and the 

definition of “excluded occupations liability” includes 

“law enforcement”. Consequently, . . . the [u]mbrella 

[policy] does not provide coverage for liability arising 

out of law enforcement or the practice of law, psychology 

or psychiatry.

5. Jury Finds in Favor 

of Beatrice Six

The claims that went to the federal district court jury were 

whether DeWitt, Searcey, and Price manufactured evidence 

or conducted a reckless investigation which resulted in the 

convictions or pleas of the Beatrice Six. The jury also considered whether DeWitt, Searcey, and Price engaged in a 

conspiracy to violate constitutional rights and whether Gage 

County through DeWitt had a policy or custom of violating 

civil rights.
- 933 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

The jury concluded that Searcey and Price had manufactured evidence or engaged in a reckless investigation with 

respect to each of the plaintiffs. The jury found that DeWitt 

had not violated the plaintiffs’ rights and that the defendants 

had not engaged in a conspiracy. The jury found Gage County 

liable through DeWitt’s policy or custom of allowing violations of civil rights. In total, the jury entered judgments in 

favor of the plaintiffs and against Gage County for more 

than $28 million in damages. The jury’s decision was upheld 

on appeal.

6. Present Insurance Lawsuit

In January 2017, Gage County filed its complaint for declaratory judgment against EMC alleging that under the CGL 

policy, EMC had a duty to defend Gage County in the Beatrice 

Six litigation and a duty to indemnify Gage County up to the 

$2 million aggregate policy limit. The complaint also alleged 

there “may be” additional limits available under the linebacker 

or umbrella policy. EMC filed an answer in which it alleged, 

among other affirmative defenses, that Gage County’s claims 

were not covered under the CGL policy due to the professional services exclusion. EMC also alleged that neither the 

linebacker policy nor the umbrella policy afforded coverage for 

Gage County’s claims.

In April 2018, EMC moved for summary judgment on all 

Gage County’s coverage claims, and in May, Gage County 

moved for partial summary judgment on the question whether, 

“[f]or purposes of [Gage County’s] coverages with [EMC], law 

enforcement was an occupation and not a profession.”

On November 1, 2018, the district court granted EMC’s 

summary judgment motion and denied Gage County’s partial 

summary judgment motion. The court ruled that the CGL 

policy’s professional services exclusion barred coverage under 

the CGL policy for all claims brought against the Gage County 

defendants in the Beatrice Six litigation. The court also held 

that there was no coverage under either the linebacker policy 

or the umbrella policy.
- 934 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

The court found that pursuant to Marx v. Hartford Acc. & 

Ind. Co.,1 the professional services exclusion applied, because 

the allegations about the investigation concerned law enforcement’s decisionmaking process based on training and experience. The court found that the professional services exclusion 

applied to the claims based on the acts of the county attorney 

and the acts of Price as a psychologist, in addition to those acts 

Price provided as a sheriff’s deputy.

Gage County appealed, and we granted its petition to bypass 

the Nebraska Court of Appeals.

II. ASSIGNMENTS OF ERROR

Gage County assigns, restated, that the district court erred (1) 

in concluding the professional services exclusion in the CGL 

policy barred coverage; (2) in failing to conclude that when the 

policies are considered in context, the parties intended for law 

enforcement to be an occupation and not a professional service; 

(3) in relying upon the definition of “professional service” 

from Marx2; (4) alternatively, in failing to conclude that the 

term “professional services” in the CGL policy is ambiguous; 

(5) in concluding that there was no excess coverage under the 

umbrella policy; and (6) in concluding that Price was engaged 

in providing professional services as a psychologist.

III. STANDARD OF REVIEW

[1,2] In reviewing a summary judgment, the court views the 

evidence in the light most favorable to the party against whom 

the judgment was granted and gives such party the benefit of 

all reasonable inferences deducible from the evidence.3 In an 

appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion 

independently of the conclusion reached by the court below.4

1 Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968).

2 Id.

3 Chase County v. City of Imperial, 302 Neb. 395, 923 N.W.2d 428 (2019).

4 Id.
- 935 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

[3] The interpretation of an insurance policy presents a 

question of law that an appellate court decides independently 

of the trial court.5

IV. ANALYSIS

[4,5] The issue presented is whether the district court correctly applied the professional services exclusion in the context 

of the insurance policies and claims at issue here. We construe 

insurance contracts like other contracts, according to the meaning of the terms that the parties have used.6

 In construing an 

insurance contract, a court must give effect to the instrument as 

a whole and, if possible, to every part thereof.7

[6,7] In a coverage dispute between an insured and the 

insurer, the burden of proving prima facie coverage under a 

policy is upon the insured.8 If the insured meets the burden 

of establishing coverage of the claim, the burden shifts to the 

insurer to prove the applicability of an exclusion under the 

policy as an affirmative defense.9

Due to a stipulation entered into between the parties, the 

sole issue before us on appeal is the applicability of the professional services exclusion. We therefore express no opinion on 

any other coverage-related issue in the case. As the case comes 

before the court, in denying Gage County’s insurance claim, 

EMC did not contest that the allegations of malicious prosecution or false arrest, detention, and imprisonment asserted in the 

Beatrice Six complaints sufficiently alleged a “personal injury” 

as defined under the CGL policy. The question is therefore 

whether EMC met its burden to prove that the professional 

5 Drake-Williams Steel v. Continental Cas. Co., 294 Neb. 386, 883 N.W.2d 

60 (2016).

6 Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb. 638, 805 N.W.2d 

468 (2011).

7 Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547, 772 

N.W.2d 88 (2009).

8 Drake-Williams Steel, supra note 5.

9 Id.
- 936 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

services exclusion applies on these facts. To answer that question, we must determine the meaning of the term “professional 

services” under the policies at issue.

EMC urges us to apply the definition of “professional serv

ices” announced in Marx and conclude as a matter of law that 

the conduct of law enforcement in this case qualifies as a professional service.10 Gage County urges us to apply the definition of “profession” from our cases construing Neb. Rev. Stat. 

§ 25-222 (Reissue 2016), the statute of limitations governing 

professional negligence, and conclude as a matter of law that 

law enforcement is not a profession. We address both arguments below. We find that neither body of case law is controlling and that the unambiguous terms of the insurance policies 

are controlling.

1. Case Law Definitions 

Not Controlling

The district court found that the seminal meaning of “professional services,” when undefined in an insurance policy, comes 

from our decision in Marx. In Marx, in considering the meaning of the term “professional services” as it appeared in a professional liability insurance coverage provision, we defined a 

professional act or service to mean “one arising out of a vocation, calling, occupation, or employment involving specialized 

knowledge, labor, or skill, and the labor or skill involved is 

predominantly mental or intellectual, rather than physical or 

manual.”11 We said that to “determin[e] whether a particular act 

is of a professional nature or a ‘professional service’ we must 

look not to the title or character of the party performing the act, 

but to the act itself.”12 Marx held that the boiling of water for 

sterilization purposes was not a professional service, because it 

was a routine equipment cleaning act that any unskilled person 

10 See Marx, supra note 1.

11 Id. at 14, 157 N.W.2d at 872.

12 Id.
- 937 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

could perform. The Marx definition of “professional services” 

has been “‘widely accepted’”13 by both state and federal courts 

and is the “most commonly employed”14 definition.

Before the district court, Gage County argued that Marx

does not control this case, because Marx concerned a claim 

under a professional liability policy and because subsequent 

Nebraska jurisprudence concerning the statute of limitations 

applicable to actions for professional negligence further developed the meaning of “professional services.”15 The district 

court disagreed with Gage County, stating that a more recent 

case, R.W. v. Schrein,

16 relied upon Marx to define the term 

“professional services” as used in an insurance policy. The 

court stated that although Nebraska’s appellate courts have not 

yet decided the issue, courts in other jurisdictions have applied 

Marx and held that law enforcement services qualify as professional services.17

On appeal, Gage County argues that Marx and Schrein, 

which also concerned a professional liability policy, do not 

control the meaning of “professional services” in the context of 

a professional services exclusion in a CGL policy. In support 

13 Medical Records Assoc. v. American Empire Surplus, 142 F.3d 512, 514 

(1st Cir. 1998), quoting Roe v. Federal Ins. Co., 412 Mass. 43, 587 N.E.2d 

214 (1992). See Harad v. Aetna Cas. and Sur. Co., 839 F.2d 979 (3d Cir. 

1988).

14 Bank of California, N. A. v. Opie, 663 F.2d 977, 981 (9th Cir. 1981). See 

Nautilus Ins. Co. v. Strongwell Corp., 968 F. Supp. 2d 807 (W.D. Va. 

2013).

15 See, Wehrer v. Dynamic Life Therapy & Wellness, 302 Neb. 1025, 926 

N.W.2d 107 (2019); Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 

830 N.W.2d 53 (2013); Tylle v. Zoucha, 226 Neb. 476, 412 N.W.2d 438 

(1987).

16 R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002).

17 See, Western World Ins. v. American and Foreign Ins., 180 F. Supp. 2d 224 

(D. Me. 2002); Lansing Community College v. National Union Fire, No. 

1:09-CV-111, 2010 WL 774877 (W.D. Mich. Mar. 1, 2010) (unpublished 

opinion). See, also, Yatsko v. Graziolli, No. 1:18 CV 1675, 2019 WL 

2497794 (N.D. Ohio June 17, 2019).
- 938 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

of this view, Gage County relies upon our jurisprudence in the 

area of professional negligence in which we have held that in 

determining whether the statute of limitations for a professional 

negligence claim applies, the court must determine whether the 

defendant is a professional and then must determine whether 

the defendant was acting in a professional capacity in rendering the services upon which the claim is based.18 Gage County 

contends that we analyze the same two questions in the insurance context to determine whether a particular act qualifies as 

a professional service.

According to Gage County, the first inquiry is whether an 

individual’s occupation rises to the level of a profession. The 

definition of “profession” for the purpose of determining the 

professional negligence statute of limitations under § 25-222 

is (1) a calling requiring specialized knowledge and often long 

and intensive preparation, including instruction in skills and 

methods, as well as in the scientific, historical, or scholarly 

principles underlying such skills and methods; (2) maintaining 

by force of organization or concerted opinion high standards of 

achievement and conduct; and (3) committing its members to 

continued study and to a kind of work which has for its prime 

purpose the rendering of a public service.19 The second inquiry 

under Gage County’s argument is whether a particular act falls 

within the scope of a profession and arose out of the specialized skill, knowledge, or training associated with the profession. Gage County argues that based on the first inquiry alone, 

we should reverse the district court’s decision. Gage County 

further contends that Marx and Schrein did not address the first 

inquiry, because the insured in an insurance dispute involving a 

professional liability policy necessarily will be a professional. 

Gage County argues that Marx and Schrein address only the 

second inquiry of whether a particular act falls within the 

scope of a profession.

18 See Churchill, supra note 15.

19 Wehrer, supra note 15.
- 939 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

In response, EMC contends that courts have applied Marx

to define a professional services exclusion in a CGL policy.20

For example, the district court relied upon Western World Ins. 

v. American and Foreign Ins.,

21 a decision issued by a U.S. 

magistrate judge which addressed a claim under a CGL policy 

based on a death from an officer-involved shooting. The magistrate judge relied upon the definition of “professional services” 

from Marx and found that the professional services exclusion 

applied, because the officer’s decision to use deadly force was 

based on the officer’s specialized training and experience.

The district court also relied upon a federal district court 

decision which involved facts similar to those of this case.22

At issue in Lansing Community College v. National Union 

Fire23 was a college’s defense and indemnity request based on 

a claim that college law enforcement officers had manufactured 

evidence in a murder investigation. The court relied upon Marx

and found that the activities of police officers fell within a professional services exclusion in a CGL policy, because police 

officers receive specialized training and education and often 

are called upon to make decisions using this training. The court 

found that police activities such as interviewing suspects and 

witnesses, investigating crimes, and assisting in the prosecution of criminal cases are the types of activities that may be 

considered professional services.24

While we agree with EMC and the district court that Marx

has been followed by courts across the country, we need not 

decide, in this case, whether it is more appropriate to apply 

20 See, American Economy Ins. Co. v. Jackson, 476 F.3d 620 (8th Cir. 2007); 

Harad, supra note 13; Boggs v. Camden-Clark Memorial Hosp. Corp., 225 

W. Va. 300, 693 S.E.2d 53 (2010); Hollingsworth v. Commercial Union 

Ins., 208 Cal. App. 3d 800, 256 Cal. Rptr. 357 (1989).

21 Western World Ins., supra note 17.

22 Lansing Community College, supra note 17.

23 Id.

24 Id.
- 940 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

the definition from Marx or the definition from our cases 

defining “profession” for purposes of § 25-222. This case 

does not require us to import definitions from our case law to 

answer the question of whether law enforcement is considered 

a profession, because the plain language of the EMC policies 

answers that question for the parties to this dispute.

2. Contract Is Clear 

and Unambiguous

[8,9] Contracts of insurance, like other contracts, are to be 

construed according to the sense and meaning of the terms 

which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, 

ordinary, and popular sense.25 When the terms of the contract 

are clear, a court may not resort to rules of construction, and 

the terms are to be accorded their plain and ordinary meaning 

as the ordinary or reasonable person would understand them.26

[10] We have generally recognized that in situations involving the interplay between primary and umbrella coverages, 

courts should examine the overall pattern of insurance and 

construe each policy as a whole.27 All three EMC policies have 

exclusions for either “professional services” or “professional 

liability,” and two of the three policies contain definitions 

of these terms. When determining the meaning of “professional services,” we cannot overlook the plain language of the 

EMC policies.

When the CGL policy, linebacker policy, and umbrella policy 

are analyzed as a whole, we are persuaded that an ordinary and 

reasonable person would understand the professional services 

exclusion to be inapplicable to the acts of law enforcement.

25 See Safeco Ins. Co. of America v. Husker Aviation, Inc., 211 Neb. 21, 317 

N.W.2d 745 (1982).

26 American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 

(2002).

27 Harleysville Ins. Group, supra note 7.
- 941 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

The CGL policy, linebacker policy, and umbrella policy 

provide an interrelated pattern of insurance. According to the 

deposition testimony of the EMC claims manager, at the time 

these three policies were issued, it was common for insureds 

like Gage County to purchase all three lines of coverage. In 

fact, the claims manager testified that in the early 1990’s, 

approximately 100 to 200 municipalities were insured with 

EMC and most of those municipalities had a CGL policy, a 

linebacker policy, and an umbrella policy.

The umbrella policy is related to both the CGL policy and 

the linebacker policy and, under certain conditions, provides 

excess coverage for both policies. To the extent the umbrella 

policy provided excess coverage for the linebacker policy, it 

did so on a claims-made basis. Both the CGL policy and the 

umbrella policy cover claims for damages arising out of false 

arrest, detention, or imprisonment or malicious prosecution. In 

certain circumstances, the umbrella policy provides primary 

coverage depending on the availability of coverage under the 

CGL policy. In addition, the applicability of the umbrella policy’s professional or excluded occupations liability exclusion in 

the umbrella policy depends on whether the CGL policy covers 

professional or excluded occupations liability.

On appeal, both parties argue in their briefs that the policies 

here are interrelated and must be considered together.

The CGL policy does not define the term “professional 

services” as used in the professional services exclusion. 

However, the linebacker policy expressly defines “professional services” to mean anyone employed in an exclusive list of professions, including the practice of medicine, 

the practice of law, the practice of accounting, architects, 

engineers, surveyors, or draftsmen. Similarly, the umbrella 

policy provides a nonexhaustive list of professions which are 

included within the “professional liability” exclusion, which 

applies to “liability arising out of the rendering of a service 

relating to a profession.” The list includes services related to 

the practice of medicine, the practice of law, the practice of 
- 942 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

accounting, insurance sales or consulting, real estate sales or 

management, architects, engineers, surveyors or draftsmen, 

and stockbrokers. Law enforcement does not appear within 

the list of professions, but instead appears as one of five 

specified categories of occupations under the occupations 

liability exclusion, along with data processing, travel agents, 

publishers, printers, and broadcasters.

Based on these policy provisions, we conclude that the professional services exclusion under the EMC policies does not 

apply to law enforcement. Under both the linebacker policy 

and the umbrella policy, law enforcement clearly does not 

qualify as a professional service; it is not listed in the exclusive 

list of professions in the linebacker policy, and it is listed as an 

“occupation” rather than a profession in the umbrella policy.

The fact that the umbrella policy lists law enforcement as an 

occupation rather than a profession is a particularly compelling 

indication of the parties’ understanding. It indicates that the 

parties understood professions and occupations to have separate meanings and include different types of acts or services. 

It also indicates that they understood law enforcement not to 

be a profession. Had the parties understood law enforcement 

as being a profession, it would have been unnecessary to separately list law enforcement as an excluded occupation. And 

while the umbrella policy contains an “occupations liability 

. . . exclusion” (emphasis omitted), there is no similar exclusion in the CGL policy that would lead a reasonable person 

to understand that the CGL policy excludes coverage for law 

enforcement services. Additionally, the CGL policy’s definition of covered “personal injuries” includes “injury . . . arising 

out of . . . [f]alse arrest, detention or imprisonment [or] [m]alicious prosecution,” which are typically understood as acts performed by law enforcement.

Because the result in this case is dictated by a definition 

of “professional services” supplied by the parties’ contract, 

we reject the parties’ arguments which suggest that we apply 

definitions from case law. Were we to apply definitions from 
- 943 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

our case law rather than the definitions the parties have used, 

we would be rewriting insurance policies. We have recognized 

that “‘it is imperative that the contract made by the parties 

shall be respected and that a new contract is not interpolated 

by construction.’”28

Upon de novo review, we find merit to Gage County’s 

assignments of error that the district court erred in (1) concluding that the professional services exclusion barred coverage, 

(2) determining on summary judgment that no excess coverage is available under the umbrella policy, and (3) concluding 

that the professional exclusion applies to the acts of Price as 

a psychologist.

The extent of EMC’s liability under the CGL policy remains 

for the district court to determine in the first instance upon 

remand. Provisions within the umbrella policy suggest that 

there may be coverage available under that policy if EMC 

is found to be responsible under the CGL policy. We therefore determine that the district court erred in finding a lack 

of coverage under the umbrella policy as a matter of law at 

this stage.

We determine that the court erred in finding that coverage 

for the claims asserted against Price may be excluded because 

he is a psychologist, because we do not find that the claims 

asserted against Price were based on his work as a psychologist. None of the claims against Price were based on medical 

malpractice, and we agree with Gage County that in manufacturing evidence and engaging in a reckless investigation, 

Price rendered acts and services as a sheriff’s deputy and not 

as a psychologist. Even if Price was acting as both a sheriff’s 

deputy and a psychologist, the result would be the same. When 

the underlying lawsuit alleges injuries resulting from the provision of both professional services and nonprofessional services, 

a professional services exclusion does not negate the insured’s 

28 Safeco Ins. Co. of America, supra note 25, 211 Neb. at 25-26, 317 N.W.2d 

at 748.
- 944 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

GAGE COUNTY v. EMPLOYERS MUT. CAS. CO.

Cite as 304 Neb. 926

claim.29 Our decision does not affect Gage County’s concession 

that the claims based on the acts of the county attorney come 

within the professional services exclusion.

For the foregoing reasons, we reverse the district court’s 

decision granting EMC’s motion for summary judgment and 

remand the cause with directions to sustain Gage County’s 

motion for partial summary judgment and find that the professional services exclusion in the CGL policy does not preclude 

coverage for Gage County’s insurance claims.

V. CONCLUSION

Based upon the preceding analysis, we conclude that it 

was error to enter summary judgment in favor of EMC and 

to overrule Gage County’s motion for partial summary judgment. Accordingly, we reverse the district court’s decision 

and remand the cause for further proceedings consistent with 

this opinion.

Reversed and remanded for

further proceedings.

29 See National Cas. Co. v. Western World Ins. Co., 669 F.3d 608 (5th Cir. 

2012).