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TIMBERLAKE v. DOUGLAS COUNTY

Cite as 291 Neb. 387

Rachelle L. Timberlake, appellee, v. Douglas Co

Nebraska, a political subdivision of th

State of Nebraska, appellan

___ N.W.2d ___

Filed July 17, 2015. No. S-14-770.

1. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

2. Statutes. The meaning and interpretation of a statute presents a question 

of law.

3. Contracts. The interpretation of a contract and whether the contract is 

ambiguous are questions of law.

4. Contracts: Declaratory Judgments. When a declaratory judgment dispute sounds in contract, the action is treated as one at law.

5. Trial: Judgments: Appeal and Error. In a bench trial of a law action, 

the trial court’s factual findings have the effect of a jury verdict, which 

an appellate court will not disturb on appeal unless clearly wrong.

6. Contracts: Intent. In ascertaining the parties’ intent in a written integrated contract, a court tries to give meaning to all its parts and avoid an 

interpretation that renders a material provision meaningless.

7. ____: ____. If a particular contract interpretation renders a material 

provision meaningless, that construction is inconsistent with the parties’ intent.

8. ____: ____. A court should avoid interpreting contract provisions in a 

manner that leads to unreasonable or absurd results that are obviously 

inconsistent with the parties’ intent.

9. ____: ____. Interpretative aids cannot override the parties’ clear intent 

when a contract is considered as a whole.

10. Intent: Words and Phrases. The word “include” preceding a list does 

not indicate an exclusive list absent other language showing a contrary intent.

11. Contracts: Words and Phrases. A court gives written words grouped 

together in a list a related meaning.
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12. Employer and Employee: Employment Contracts: Wages: Appeal 

and Error. Under Neb. Rev. Stat. § 48-1229 (Reissue 2010), an appellate court will consider a payment a wage subject to the Nebraska 

Wage Payment and Collection Act if (1) it is compensation for labor 

or services, (2) it was previously agreed to, and (3) all the conditions 

stipulated have been met.

13. Employer and Employee: Wages. An employee can earn fringe benefits like sick leave and vacation leave just by rendering services.

14. ____: ____. The list of fringe benefits under Neb. Rev. Stat. § 48-1229(3) 

(Reissue 2010) is not exclusive.

Appeal from the District Court for Douglas County: W. 

Mark Ashford, Judge. Affirme

Donald W. Kleine, Douglas County Attorney, Bernard J. 

Monbouquette, and Jimmie L. Pinkham for appellant.

John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C., 

for appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Connolly,

I. SUMMARY

The appellee, Rachelle L. Timberlake, is an employee of the 

Douglas County Department of Corrections. She sustained a 

concussion while aiding her supervisor, who was having a seizure. She brought this declaratory judgment action to have the 

court determine her right to “injured on duty” (IOD) benefits 

under her collective bargaining agreement (CBA). She also 

requested attorney fees under the Nebraska Wage Payment and 

Collection Act (Wage Act).1

The CBA provides IOD benefits to department employees 

who are injured while performing a high-risk duty. The CBA 

provides that high-risk duty “includes (1) responding to a 

Code, and (2) interaction with an inmate while that inmate 

is engaged in an act of violence with the officer, another 

1 See Neb. Rev. Stat. §§ 48-1228 to 48-1232 (Reissue 2010).
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inmate or himself/herself.” The dispute centers on whether 

this sentence provides a nonexclusive list of high-risk duties 

or conjunctive elements that an employee must satisfy to 

qualify for benefits. The court concluded that the contract 

was unambiguous and awarded Timberlake IOD benefits. It 

also awarded her attorney fees under the Wage Act. Although 

our reasoning differs somewhat from the court’s reasoning, 

we conclude that it correctly ruled Timberlake was injured 

while performing a high-risk duty. We affirm.

II. BACKGROUND

Timberlake is a Corrections Officer I for the department. 

The terms and conditions of her employment are subject to 

a CBA between Douglas County and the Fraternal Order of 

Police, Lodge No. 8. Timberlake worked as an escort at the 

county jail, relieving officers who are assigned to specific 

housing units and escorting inmates who are moved through 

the facility. Her specific position was entitled “2 Delta Escort 

R1”: “2 Delta” referred to her floor assignment. Apart from 

her other duties, “R1” meant she was a first responder for any 

emergencies in the facility.

On July 22, 2011, she saw her supervisor go limp and start 

to slide out of his chair during a seizure. While trying to protect him from hitting his head, she lost her balance and hit her 

own head against a concrete wall, sustaining a concussion. She 

called a “code green,” which is a request for medical personnel 

to assist in an area. She said she called a code green because 

her supervisor was in severe distress and she wanted medical 

personnel there to assist them.

Soon after the accident, Timberlake was taken to the hospital and missed several days of work. When she returned 

to work, she requested IOD benefits. She received workers’ 

compensation temporary disability benefits. But IOD benefits 

ensure that a qualified employee receives his or her full salary starting on the day of the injury, which is greater compensation than workers’ compensation benefits provide. The 

department’s director, Mark Foxall, denied Timberlake IOD 
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benefits, and she sought review by the IOD committee, established under the CBA. The committee recommended that she 

be granted IOD benefits because her actions were in response 

to an emergency. Foxall again denied benefits. He stated in a 

letter to Timberlake that “while a code is involved, it neither 

involves an inmate nor were there any acts of violence.”

After exhausting her administrative remedies, she filed this 

declaratory judgment action and sought attorney fees under 

the Wage Act. She alleged that IOD benefits are wages under 

the Wage Act and that the county violated the act by denying 

her these benefits.

Timberlake testified that there are five color codes an officer might send to others in the facility. She said a code blue 

means an officer needs assistance, while a code green means 

the officer needs medical personnel. A code red alerts officers 

to a fire, and a code orange alerts officers to an escape. Finally, 

an officer sends a code yellow to signal a false alarm.

Foxall testified that a code blue was a request for assistance 

in response to some type of violence, such as an altercation 

between inmates or between inmates and staff. He said an 

officer might also call a code blue for assistance if an inmate 

was menacing or threatening in any manner. Foxall admitted 

that Timberlake had a duty to respond to any code called by 

an officer in her area and a duty to respond to any emergency 

she witnessed that would warrant an officer calling a code. He 

admitted that the physical incapacity of a corrections officer 

could pose a security threat and should be reported. He could 

not recall whether he had authorized IOD benefits for an 

employee injured while responding to a code other than a code 

blue. He said he had typically authorized benefits for employees responding to a code blue involving an inmate, because the 

CBA authorized that. He admitted that the CBA’s list of highrisk duties was nonexclusive.

At the close of the evidence, the county argued that the 

CBA unambiguously excluded IOD benefits for injuries sustained in the circumstances presented by Timberlake’s claim. 

Nonetheless, it requested that the court allow it to come back 
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and present extrinsic evidence about the CBA’s meaning if the 

court concluded that the contract was ambiguous. Its attorney 

stated that the county could present the testimony of two negotiators but did not state what their testimony would show. The 

court, however, stated from the bench that the CBA provided a 

nonexclusive list of high-risk duties and that the facts showed 

the CBA entitled Timberlake to IOD benefits.

In its written order, the court stated that after hearing 

Timberlake’s and Foxall’s testimonies, it concluded that the 

meaning of article 25 of the CBA was unambiguous. It stated 

that article 25, which governs IOD benefits, did not specify 

the type of code that an employee must be responding to in 

order to receive IOD benefits for an injury. It concluded that 

Timberlake was injured while performing a high-risk duty and 

responding to a code green.

The court found that Timberlake had lost pay for 73.75 

hours that the county should have paid to her as IOD benefits. It ordered the county to pay her for these hours, minus 

the workers’ compensation disability benefits that she had 

received, for a total of $1,075.20 in benefits. The court further 

determined that Timberlake was entitled to attorney fees under 

§ 48-1231 of the Wage Act, thereby implicitly determining 

that IOD benefits were part of Timberlake’s negotiated wages 

under the CBA.

III. ASSIGNMENTS OF ERROR

The county assigns that the court erred as follows:

(1) finding that Timberlake sustained an injury while performing a high-risk duty as set out in article 25 of the CBA;

(2) concluding that article 25 clearly and unambiguously 

defines a high-risk duty;

(3) excluding extrinsic evidence of the parties’ intent in 

drafting article 25, which was described to the court in an offer 

of proof; and

(4) concluding that IOD benefits are wages under the Wage 

Act and awarding attorney fees to Timberlake.
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IV. STANDARD OF REVIEW

[1-3] We independently review questions of law decided 

by a lower court.2 The meaning and interpretation of a statute 

presents a question of law.3 The interpretation of a contract and 

whether the contract is ambiguous are questions of law.4

[4,5] When a declaratory judgment dispute sounds in contract, the action is treated as one at law.5

 In a bench trial of 

a law action, the trial court’s factual findings have the effect 

of a jury verdict, which an appellate court will not disturb on 

appeal unless clearly wrong.6

V. ANALYSIS

1. Timberlake Was Performing a High

Duty When She Was I

As noted, the crux of this appeal is the meaning of a highrisk duty under article 25 of the CBA. We have considered the 

meaning of a high-risk duty in only one other case.

In Mitchell v. County of Douglas,

7

 we held that a deputy 

sheriff was not performing a high-risk duty when he sustained a heart attack while training on an obstacle course 

that included a firing range. The county resolution that created the injured-on-duty policy did not define a high-risk 

duty or specify any conduct that constituted such a duty. We 

concluded that the phrase “high-risk duty” meant something 

more than routine employment duties. We cited common 

dictionary understandings of these words to conclude that 

an officer must be exposed to a “greater hazard or danger 

than one would normally encounter in the course of his 

2 Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 N.W.2d 742 

(2015).

3 Id.

4 See David Fiala, Ltd. v. Harrison, 290 Neb. 418, 860 N.W.2d 391 (2015).

5 See Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).

6 Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).

7 Mitchell v. County of Douglas, 213 Neb. 355, 329 N.W.2d 112 (1983).
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employment.”8 We gave examples of conduct that would 

satisfy that definition: an officer pursuing a fleeing felon or 

attempting to charge a building where a felon had secured 

himself. In contrast, we concluded that the officer’s risks of 

injury on the obstacle course flowed only from his own carelessness or gradual physical infirmity.

Although the county relied on Mitchell at oral argument, 

it does not resolve this dispute. First, we specifically stated 

in Mitchell that our examples of high-risk duties were not 

intended to define the term in its entirety. Obviously, our 

examples would not be applicable to an employee working in 

a corrections facility. More important, unlike the resolution 

considered in Mitchell, here we are analyzing a negotiated 

CBA with language showing the parties’ intent of the type of 

duty the officer must be performing to qualify for IOD benefits. So we turn to that language.

(a) Article 25 Does Not Set Out 

Conjunctive Elements

Section 1 of article 25 makes sustaining an injury while 

performing a high-risk duty a condition for receiving the benefits and specifies conduct that satisfies that requirement:

Injured on duty will mean that a Corrections Officer, 

while in the employ of the Douglas County Corrections 

Department, is injured while performing high risk duty, 

including responding to a Code, and that said injury is 

a direct result of that high risk duty. “High risk duty” 

includes: (1) responding to a Code and (2) interaction with an inmate while that inmate is engaged in 

an act of violence with the officer, another inmate or 

himself/herself. A Correction[s] Officer so injured will 

not be required to use his/her sick leave while recovering from said injury for the first . . . (180) working 

days of the recovery period or until he/she has reached 

maximum medical improvement, whichever comes first. 

8 Id. at 359, 329 N.W.2d at 114.
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The determination of whether an employee is entitled 

to [IOD] benefits shall be made by the Director or his/

her designee.

(Emphasis supplied.)

The county argues that items (1) and (2) in the italicized sentence are essential and conjunctive elements, both 

of which must be satisfied before an employee is eligible for 

IOD benefits. We disagree.

[6,7] First, in ascertaining the parties’ intent in a written integrated contract, a court tries to give meaning to all 

its parts and avoid an interpretation that renders a material 

provision meaningless.9 If a particular contract interpretation 

renders a material provision meaningless, that construction 

is inconsistent with the parties’ intent.10 The county obviously considers item (1) to be a material provision because 

it argues that it is an essential element. But construing the 

contract to mean that subsection (2) must always be satisfied 

renders subsection (1) meaningless. That is, if the drafters 

had intended that an officer must always be interacting with 

a violent inmate when injured to qualify for IOD benefits, 

they had no need to include “responding to a Code” as an 

additional element.

Second, article 25 puts more emphasis on responding to 

a code than interacting with a violent inmate. Significantly, 

the first sentence of section 1 makes responding to a code a 

high-risk duty without mentioning interaction with a violent 

inmate. So the second sentence operates to expand the type 

of conduct that is considered a high-risk duty. It clarifies that 

such duties include responding to a code and interacting with 

a violent inmate. But the first sentence’s separate statement 

that responding to a code is a high-risk duty refutes the county’s argument that an officer must have been both responding 

9 See, Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015); 

Gies v. City of Gering, 13 Neb. App. 424, 695 N.W.2d 180 (2005).

10 See, Gies, supra note 9; Restatement (Second) of Contracts § 203, 

comment b. (1981).
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to a code and interacting with a violent inmate to qualify for 

IOD benefits.

Moreover, even if the county’s alternative argument were 

correct—that article 25 is at least ambiguous—the court specifically stated that the meaning of article 25 was unambiguous in the light of Timberlake’s and Foxall’s testimonies. The 

evidence showed that only a code blue is sent to request 

assistance with a violent or menacing inmate and that other 

codes are unrelated to that situation. But to conclude that both 

items (1) and (2) are essential elements would disqualify an 

officer who was suddenly attacked and injured by a violent 

inmate and did not have time to call a code blue. Subduing a 

violent inmate would obviously pose a high risk of injury to an 

officer. Yet, the officer would only be confronted with a code 

blue emergency—not responding to a code blue. We note that 

the county specifically argues that because Timberlake called 

a code green after she was injured, she was not responding to 

a code green.11

[8] Similarly, an officer injured while responding to a code 

red for a fire would not be entitled to benefits unless the 

officer was injured because he or she was interacting with 

a violent inmate. So the extrinsic evidence shows that the 

county’s interpretation of the contract would result in officers 

being denied IOD benefits even if they were injured while 

performing duties that carried a high risk of injury. And a 

court should avoid interpreting contract provisions in a manner that leads to unreasonable or absurd results that are obviously inconsistent with the parties’ intent.12

We also reject the county’s position at oral argument that 

interpreting article 25 to authorize benefits when an officer is 

only responding to a code would necessarily include responding to a code yellow for false alarms. It argued that this would 

11 See brief for appellant at 8-9.

12 See Davidson v. First American Ins. Co., 129 Neb. 184, 261 N.W. 144 

(1935). Accord, Restatement, supra note 10, § 203 and comment c.; 17A 

Am. Jur. 2d Contracts § 338 (2004).
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be an absurd result that the parties could not have intended. 

But this argument fails to create a latent ambiguity in the 

contract. A code yellow does not require an officer to respond 

to an emergency—it requires the officer to stop responding. 

Finally, Foxall stated at trial that the list of high-risk duties 

was not exclusive. So even if resort to extrinsic evidence had 

been necessary, the court was not clearly wrong in rejecting 

the county’s argument that an officer must be interacting with 

a violent inmate to qualify for IOD benefits.

In sum, the court did not have to resort to extrinsic evidence 

to determine that the county’s “conjunctive elements” interpretation of the CBA was unreasonable. Nonetheless, we agree 

with its conclusion that article 25 unambiguously authorizes 

IOD benefits for an officer who is injured while responding 

to an emergency code. The county’s interpretation is contrary 

to the parties’ clear intent in the CBA to provide benefits to 

employees who are injured while performing a high-risk duty, 

including responding to a code.

But we disagree with the court that Timberlake was responding to a code when she was injured. The county correctly 

argues that she called a code green after she was injured. The 

court also concluded, however, that Timberlake was performing a high-risk duty. Whether that conclusion is correct hinges 

on whether article 25 sets out an exclusive or nonexclusive list 

of conduct that qualifies as a high-risk duty.

(b) Article 25’s List of High-Risk 

Duties Is Nonexclusive

In interpreting a statute, the Nebraska Court of Appeals 

has explicitly interpreted the word “include” to designate a 

nonexclusive list.13 Generally, absent other words or a context 

showing a contrary intent, courts in other jurisdictions have 

similarly held that a statutory or regulatory list preceded by 

13 See Spracklin v. Spracklin, 21 Neb. App. 271, 837 N.W.2d 826 (2013). 

See, also, Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 

203 (1994).
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some variation of the word “include” designates a nonexclusive enumeration of components within the subject matter.14 It 

“conveys the conclusion that there are other items includable, 

though not specifically enumerated by the statutes.”15 Courts 

usually do not interpret a statutory list that is preceded by 

the word “includes” as though the statute contained the word 

“means,” and absent a conflicting statutory provision, the word 

“include” does not create a doubt whether the listed components are exclusive.16 Additionally, some courts have also 

explicitly concluded that the word “include” preceding a list in 

a contract has an expansive meaning, absent any language or 

context showing a more restrictive intent.17

We agree. Adopting a rule of nonexclusivity for our contract 

interpretation cases is consistent with our statutory interpretation cases.18 It is also consistent with the way we have applied 

a rule of exclusivity to lists that were not preceded by the 

word “include.” Specifically, we have applied the principle 

14 See, American Surety Co. of New York v. Marotta, 287 U.S. 513, 53 S. Ct. 

260, 77 L. Ed. 466 (1933); Richardson v. National City Bank of Evansville, 

141 F.3d 1228 (7th Cir. 1998); Picayune Tribe v. Brown, 229 Cal. App. 4th 

1416, 178 Cal. Rptr. 3d 563 (2014); Friends for Murray v. Dept. of Human 

Serv., 2014 IL App (5th) 130481, 9 N.E.3d 577, 380 Ill. Dec. 906 (2014); 

Connerty v. Metropolitan Dist. Com’n, 398 Mass. 140, 495 N.E.2d 840 

(1986), abrogated on other grounds, Jean W. v. Com., 414 Mass. 496, 610 

N.E.2d 305 (1993); Jackson v. Charlotte Mecklenburg Hosp., 768 S.E.2d 

23 (N.C. App. 2014); DEP v. Cumberland Coal Resources, LP, 102 A.3d 

962 (Pa. 2014).

15 Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968), quoted in 2A 

Norman J. Singer & Shambie Singer, Statutes and Statutory Construction 

§ 47:7 (7th ed. 2014).

16 See, Federal Election Com’n v. Mass. Citizens for Life, 769 F.2d 13 (1st 

Cir. 1985). But see Leach v. Monumental Life Ins. Co., 118 N.C. App. 434, 

455 S.E.2d 450 (1995), reversed 342 N.C. 408, 464 S.E.2d 46.

17 See, e.g., Ruffin v. RadioShack Corp., 49 Kan. App. 2d 92, 305 P.3d 669 

(2013); Empire Mut. Ins. Co. v. Applied Sys. Dev. Corp., 121 A.D.2d 956, 

505 N.Y.S.2d 607 (1986). See, also, Enis v. Continental Illinois Nat. Bank, 

795 F.2d 39 (7th Cir. 1986).

18 See, Sindelar, supra note 13; Spracklin, supra note 13.
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of expressio unius est exclusio alterius (the expression of one 

thing is the exclusion of the others), when interpreting both 

statutes and contracts.19

[9,10] We recognize that some courts have concluded that 

the word “include,” standing alone, is ambiguous whether 

the contracting parties meant for the word to be expansive 

or restrictive.20 But we are not persuaded by these cases. 

Concluding that the parties’ intent regarding a list is ambiguous 

if a list is preceded only by the verb “include” is contrary to 

its plain and ordinary meaning. The word “include” means “1. 

to contain, embrace, or comprise, as a whole does parts or any 

part or element . . . 2. to place in an aggregate, class, category, 

or the like. 3. to contain as a subordinate element; involve as a 

factor.”21 Contrary to the county’s argument, these definitions 

support the conclusion that enumerated items in a list preceded 

by the word “include” are normally a part of the whole—not 

that the parts restrict the whole. Particularly in legal contexts, 

the “participle including typically indicates a partial list,” and 

this meaning holds true whether or not the drafter(s) added 

emphatic language such as “including but not limited to.”22

Obviously, interpretative aids cannot override the parties’ clear 

intent when a contract is considered as a whole. But the word 

“include” preceding a list does not indicate an exclusive list 

absent other language showing a contrary intent.23

19 See, e.g., Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014); 

Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014); 

O’Gara Coal Co. v. Chicago, M. & St. P. R. Co., 114 Neb. 584, 208 N.W. 

742 (1926).

20 See, Guerrant v. Roth, 334 Ill. App. 3d 259, 777 N.E.2d 499, 267 Ill. Dec. 

696 (2002); Great Nat. Corp. v. Campbell, 687 S.W.2d 450 (Tex. App. 

1985).

21 Webster’s Encyclopedic Unabridged Dictionary of the English Language 

720 (1989).

22 See Black’s Law Dictionary 880 (10th ed. 2014).

23 Compare, e.g., Anderson Excavating Co. v. Neth, 275 Neb. 986, 751 

N.W.2d 595 (2008).
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At oral argument, the county stated that other provisions 

in the CBA show that when the parties intended the word 

“include” to be expansive, they included clarifying language. 

It argued that the absence of such language in article 25 shows 

they did not intend the word “include” to be expansive. We 

disagree that any emphatic language used in other provisions 

controls the meaning of article 25.

For example, in article 2 of the CBA, the county asserted 

that its management rights “include, but are not limited to,” a 

specified lists of powers. As stated, however, language added 

to emphasize that a list is not exclusive is unnecessary because 

it means the same thing. It does not change the meaning of 

“include.” So the absence of emphatic language in article 25 

does not change our analysis of the parties’ intent. We conclude that the list of high-risk duties in article 25 is unambiguously nonexclusive. That leads us to whether Timberlake was 

injured while performing a high-risk duty.

(c) Article 25 Controls the Meaning 

of High-Risk Duty

The county argues that “[g]iving first aid is not a high risk 

activity.”24 But article 25 provides IOD benefits for employees 

injured while responding to a code, which includes a code 

green for medical emergencies. By including “responding to a 

Code” as a high-risk duty, the parties implicitly concluded that 

the risk of injury while responding to a medical emergency 

code is sufficient to warrant IOD benefits.

[11] Although Timberlake was not responding to a code 

green, her conduct—responding to a medical emergency—

was within the meaning of a high-risk duty under article 25. 

Words are known by the company they keep, so a court gives 

written words grouped together in a list a related meaning.25

24 Brief for appellant at 7.

25 See, State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013); 11 Samuel 

Williston, A Treatise on the Law of Contracts § 32:6 (Richard A. Lord ed., 

4th ed. 2012).
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And her duty to respond to a medical emergency was indistinguishable from her duty to respond to a code green. We 

note Foxall admitted that an incapacitated officer presents a 

security risk and that Timberlake had a duty to respond to any 

emergency she witnessed. So Timberlake unquestionably had a 

duty to respond to this medical emergency. And if she had been 

injured while responding to a code green, her injury would 

have occurred while she was performing a listed high-risk duty 

under article 25. Because her conduct was indistinguishable 

from a duty explicitly made a high-risk duty by article 25, we 

conclude that she was injured while performing an unlisted 

high-risk duty.

2. Court Properly Awarded At

Fees Under the Wage

The county argues that under § 48-1229(4), IOD benefits 

are not compensation under the Wage Act. Timberlake argues 

that IOD benefits are fringe benefits under the act, which the 

county was obligated to pay her under the CBA. We briefly set 

out the act’s relevant definitions and requirements.

[12] Section 48-1229(4) defines wages as “compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether 

the amount is determined on a time, task, fee, commission, 

or other basis.” (Emphasis supplied.) Section 48-1229(3) 

provides that fringe benefits “includes sick and vacation 

leave plans, disability income protection plans, retirement, 

pension, or profit-sharing plans, health and accident benefit 

plans, and any other employee benefit plans or benefit programs regardless of whether the employee participates in 

such plans or programs.” Section 48-1230(1) provides that 

unless otherwise stated in the act, “each employer shall pay 

all wages due its employees on regular days designated by 

the employer or agreed upon by the employer and employee.” 

Under § 48-1229, we will consider a payment a wage subject 

to the Wage Act if (1) it is compensation for labor or services, 
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(2) it was previously agreed to, and (3) all the conditions 

stipulated have been met.26

The county admits that in the CBA, the parties agreed to 

IOD benefits for injured employees who are unable to work. 

But it argues that the benefits are not wages for the same reason: “The benefit she seeks is not for her labor and services 

but rather is one negotiated for her by her union in the CBA 

specifically for injured employees who are unable to provide 

labor or services.”27 This argument is without merit.

[13] Section 48-1229(4) specifically defines wages to 

include fringe benefits that an employer agrees to pay on a 

“time, task, fee, commission, or other basis.” And in the case 

the county relies on, we explained that an employee can earn 

fringe benefits like sick leave and vacation leave just by rendering services.28

[14] Additionally, the list of fringe benefits under 

§ 48-1229(3) is not exclusive. It specifically defines fringe 

benefits to include sick leave, health and accident benefit 

plans, and any other employee benefit plans. We have implicitly interpreted this provision to include fringe benefits that are 

not explicitly listed in the statute. Specifically, we have held 

that the cash value of a life insurance policy can be wages 

under the act when the evidence shows the employer agreed 

to pay it to an employee upon his separation of employment. 

In Sindelar v. Canada Transport, Inc.,

29 we held that the cash 

value was a fringe benefit under § 48-1229(3). We rejected 

the argument that the policy was an employee benefit plan. 

Instead, we held that its cash value was deferred compensation. 

It therefore “amounted to a fringe benefit, as it was in the form 

of a pension.”30

26 Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).

27 Brief for appellant at 14.

28 See Fisher, supra note 26.

29 Sindelar, supra note 13.

30 Id. at 568, 520 N.W.2d at 209.
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Nebraska Advance She

291 Nebraska Report

TIMBERLAKE v. DOUGLAS COUNTY

Cite as 291 Neb. 387

The same principle applies here. Article 25 provides that a 

corrections officer injured while performing a high-risk duty 

“will not be required to use his/her sick leave while recovering from said injury for the first . . . (180) working days of 

the recovery period or until he/she has reached maximum 

medical improvement, whichever comes first.” This provision 

shows that IOD benefits are in the same class as sick leave 

benefits because they are intended to benefit an employee 

who is unable to work because of sickness or disability. They 

are not awarded on a time basis, but they are awarded for 

services rendered if the employee was performing a high-risk 

duty when injured. The court did not err in concluding that 

the unpaid benefits were negotiated wages that the county 

failed to pay. Accordingly, it properly awarded Timberlake 

attorney fees.

VI. CONCLUSION

We reject the county’s argument that article 25 sets out 

conjunctive, essential elements that an employee must satisfy 

to qualify for IOD benefits. We reject its argument that article 

25 is ambiguous and conclude that this provision sets out 

a nonexclusive list of high-risk duties. We therefore do not 

address the county’s argument that the court erred in failing to 

consider its extrinsic evidence of the parties’ intent. We conclude that Timberlake was performing a high-risk duty when 

she was injured, because her conduct was indistinguishable 

from conduct that article 25 explicitly listed as a high-risk 

duty. Finally, we conclude that the court correctly awarded 

Timberlake attorney fees for collecting unpaid fringe benefits 

under the CBA.

Affirmed