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CITY OF LINCOLN v. COUNTY OF LANCASTER

Cite as 297 Neb. 256

City of Lincoln, Nebraska, a political subdi

appellant, v. County of Lanca

a political subdivision, app

___ N.W.2d ___

Filed July 21, 2017. No. S-16-852.

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.

Nebraska Supreme Court Online Library

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

09/15/2017 01:11 AM CDT
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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. Affirme

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, Cass

and Funke, J

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 

1 See Neb. Rev. Stat. § 13-916 (Reissue 2012).
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“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 provided that the retained limit was to 

be borne by the County as an uninsured amount.

The City sued the County for reimbursement of expenses 

paid on its employee’s behalf. The County set forth a number 

of affirmative defenses, including that it was immune from 

suit and that it had not waived such immunity. It also affirmatively alleged that the Political Subdivisions Tort Claims 

Act (the Act)2 did not apply because the claim arose out of 

a battery.

The City moved for partial summary judgment, alleging 

that the County’s purchase of liability insurance effectively 

waived the County’s immunity under § 13-916. The County 

subsequently moved for summary judgment in its favor.

The district court sustained the County’s motion for summary judgment. First, the court determined that the City’s 

negligence claim arose from a battery and was barred by the 

intentional torts exception under the Act. Second, the court 

decided that the County’s procurement of insurance did not 

constitute a waiver of its sovereign immunity for the claim. 

The court observed that under the terms of the insurance policy, the insurer was obligated to pay only damages and claims 

2 See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
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expenses in excess of the retained limit. The court concluded 

that the County’s procurement of insurance did not constitute a 

waiver for claims less than $250,000. It reasoned that because 

the amount in controversy was $63,418.22, the County did 

not waive its sovereign immunity by obtaining insurance for 

claims exceeding $250,000.

The City filed a timely appeal, and we moved the case to our 

docket.3 We subsequently ordered supplemental briefing, which 

we have considered in resolving this appeal.

ASSIGNMENTS OF ERROR

The City assigns that the district court erred (1) by finding that there were no genuine issues of material fact and (2) 

by finding that the County was immune and did not waive its 

immunity when it purchased liability insurance.

STANDARD OF REVIEW

[1,2] Questions of law and statutory interpretation require an 

appellate court to reach a conclusion independent of the decision made by the court below.4

 The interpretation and meaning 

of an insurance policy is a question of law.5

[3] 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.6

ANALYSIS

[4,5] The district court found that the City’s claim arose 

from a battery and was barred by the Act’s intentional torts 

3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

4 Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).

5 See Drake-Williams Steel v. Continental Cas. Co., 294 Neb. 386, 883 

N.W.2d 60 (2016).

6 Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
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exception. The Act allows a limited waiver of a political subdivision’s sovereign immunity with respect to certain, but not 

all, types of tort actions.7 Claims against a political subdivision 

that are exempt from the waiver of sovereign immunity are set 

forth in § 13-910.8 One of those exemptions, the “intentional 

torts exception,” provides that the Act shall not apply to “[a]ny 

claim arising out of . . . battery . . . .”9

[6] The City’s opening brief did not specifically assign or 

argue that the court erred in finding that the City’s claim arose 

from a battery. 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.10 As we have already 

summarized, widely varying terms were used to describe the 

touching—but they all described an intentional act. The City’s 

opening brief did not challenge this characterization.

But in the City’s supplemental brief, it now attempts to 

make an argument challenging the court’s characterization of 

the touching as a battery. Making such an argument for the first 

time in a supplemental brief, as in a reply brief,11 is improper. 

Viewing the evidence in the light most favorable to the City 

and giving it the benefit of all favorable inferences, we see no 

plain error in the court’s finding. Because the claim arose out 

of a battery, the County is immune from the City’s suit, unless 

it has otherwise waived its immunity.

[7] The City contends that the County waived its immunity by procuring liability insurance. Through enactment of 

§ 13-916, the Legislature allowed a political subdivision to 

waive immunity to some extent by purchasing liability insurance. The statute provides:

7 See id.

8 See Blaser v. County of Madison, 288 Neb. 306, 847 N.W.2d 293 (2014).

9 § 13-910(7).

10 State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883 

N.W.2d 69 (2016).

11 See Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014).
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The governing body of any political subdivision 

. . . may purchase a policy of liability insurance insuring against all or any part of the liability which might 

be incurred under the . . . Act and also may purchase 

insurance covering those claims specifically excepted 

from the coverage of the act by section 13-910. . . . The 

procurement of insurance shall constitute a waiver of 

the defense of governmental immunity as to those exceptions listed in section 13-910 to the extent and only to 

the extent stated in such policy. . . . Whenever a claim or 

suit against a political subdivision is covered by liability insurance or by group self-insurance provided by a 

risk management pool, the provisions of the insurance 

policy on defense and settlement or the provisions of 

the agreement forming the risk management pool and 

related documents providing for defense and settlement 

of claims covered under such group self-insurance shall 

be applicable notwithstanding any inconsistent provisions of the act.12

Under our statute, the terms of the liability policy determine whether immunity is waived. The policy here does not 

explicitly state that it constitutes a waiver of immunity as to 

any claim.

The parties have framed the issue as whether immunity is 

waived where the claim falls within the political subdivision’s 

retained limit or self-insured retention. But we need not reach 

that issue if the claim does not fall within the policy’s insuring agreement.

[8] 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.13 A claim 

must fall within the policy’s coverage, and an exclusion must 

12 § 13-916 (emphasis supplied).

13 Drake-Williams Steel v. Continental Cas. Co., supra note 5.
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not be applicable.14 Before considering the effect of a retained 

limit or self-insured retention, we examine the terms of the 

policy to determine whether it provided coverage for a claim 

arising out of a battery.

The “Insuring Agreement” specifies under what circumstances the insurer is obligated to pay. The provision for the 

general liability coverage part states:

The Insurer will indemnify the Insured for Damages

and Claim Expenses in excess of the Retained Limit

for which the Insured becomes legally obligated to pay 

because of a Claim first arising out of an Occurrence

happening during the Policy Period in the Coverage 

Territory for Bodily Injury, Personal Injury, Advertising 

Injury, or Property Damage taking place during the 

Policy Period.

The insuring agreement requires that the claim arise out 

of an “occurrence.” The policy defines an “occurrence” with 

respect to “bodily injury” as “an accidental happening” which 

results in “bodily injury.” Although the policy does not define 

“accidental happening,” an “accident” is defined as “an unintended and unexpected harmful event.”

[9] Under the terms of the policy, the insuring agreement 

does not provide coverage for bodily injury resulting from 

an intentional act. Here, the claim arose out of a battery. “A 

harmful contact intentionally done is the essence of battery.”15

Because the contact is intentional, a battery cannot be an 

accidental happening. We have previously stated that “intentional acts by definition cannot be accidents.”16 And we have 

explained that “where acts are voluntary and intentional and 

the injury is the natural result of the act, the result was not 

14 See id.

15 Britton v. City of Crawford, supra note 6, 282 Neb. at 382, 803 N.W.2d at 

515.

16 See Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697, 702, 625 

N.W.2d 213, 217 (2001).
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caused by accident even though that result may have been 

unexpected, unforeseen, and unintended.”17 As a matter of 

law, there was no “occurrence.” And the parties agree in 

their supplemental briefs that a claim for battery does not fall 

within the insuring agreement. Because there was no coverage for the battery, the County did not waive its immunity for 

that claim.

For the sake of completeness, we note that the policy coverage for “personal injury” does not cover a claim arising out 

of a battery. The definition of “personal injury” states that it 

“means one or more of the following offenses” followed by 

a list of offenses. The enumerated offenses include a number 

of torts listed in the intentional torts exception of § 13-910(7), 

but battery is not one of them. Battery therefore does not fall 

within the definition of “personal injury.”

[10] The City recognizes in its supplemental brief that if 

the claim arose from a battery, it is unnecessary for us to 

determine whether immunity is waived where a claim falls 

within the retained limit. An appellate court is not obligated 

to engage in an analysis that is not needed to adjudicate the 

case and controversy before it.18 But the City nonetheless asks 

us to decide the question in the interest of judicial efficiency. 

Because the determination as to whether there is a waiver 

of immunity may depend on the language of a particular 

insurance policy, we decline to make some sort of blanket 

pronouncement.

We are not necessarily persuaded that the Legislature envisioned one political subdivision using the Act to sue another 

17 Farr v. Designer Phosphate & Premix Internat., 253 Neb. 201, 206, 

570 N.W.2d 320, 325 (1997). Cf. Sullivan v. Great Plains Ins. Co., 210 

Neb. 846, 854, 317 N.W.2d 375, 380 (1982) (stating that damage to 

vehicle, even though result of driver’s own careless behavior, was still “an 

accident” within meaning of insurance policy).

18 See Anderson v. Union Pacific RR. Co., 295 Neb. 785, 890 N.W.2d 791 

(2017).
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subdivision. But we cannot find any provision of law that 

would prevent a political subdivision from doing so.

CONCLUSION

Because the claim arose out of a battery and a battery is not 

an “occurrence” under the terms of the insurance policy, there 

was no possibility of any coverage for the claim under the 

policy. For reasons different from those stated by the district 

court, we conclude that the County’s procurement of insurance 

did not constitute a waiver of immunity as to a claim arising 

out of a battery. We affirm the court’s judgment.

Affirmed

Stacy, J., not participatin