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Jacobs Engineering Group Inc., a

v. ConAgra Foods, Inc., appe

___ N.W.2d ___

Filed September 14, 2018. No. S-16-896.

1. Actions: Parties: Standing. Whether a party who commences an action 

has standing and is therefore the real party in interest presents a jurisdictional issue.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional 

question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to 

reach a conclusion independent from the trial court’s; however, when 

a determination rests on factual findings, a trial court’s decision on the 

issue will be upheld unless the factual findings concerning jurisdiction 

are clearly incorrect.

3. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

4. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

5. Judgments: Appeal and Error. An appellate court reviews a denial of 

a motion to alter or amend the judgment for an abuse of discretion.

6. Motions for New Trial: Appeal and Error. An appellate court reviews 

a trial court’s ruling on a motion for a new trial for an abuse of 

discretion.

7. Contracts. Contract interpretation presents a question of law.

Nebraska Supreme Court Online Library

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

10/26/2018 12:13 AM CDT
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8. Jury Instructions. Whether the jury instructions given by a trial court 

are correct is a question of law.

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

reviews questions of law decided by a lower court.

10. Verdicts: Appeal and Error. When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.

11. Verdicts: Juries: Appeal and Error. A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent 

evidence presented to the jury upon which it could find for the successful party.

12. Actions: Parties: Standing. The focus of the real party in interest 

inquiry is whether the party has standing to sue due to some real interest 

in the cause of action, or a legal or equitable right, title, or interest in the 

subject matter of controversy.

13. Standing: Jurisdiction: Parties. Standing refers to whether a party 

had, at the commencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s or tribunal’s exercising its jurisdiction and remedial powers on the party’s behalf.

14. Actions: Parties: Jurisdiction: Standing. The question of whether a 

party who commences an action has standing and is therefore the real 

party in interest is jurisdictional. Because the requirement of standing 

is fundamental to a court’s exercise of jurisdiction, either a litigant or a 

court can raise the question of standing at any time.

15. Standing. The stage of the litigation in which a party claims that its 

opponent lacks standing affects how a court should dispose of the claim.

16. Standing: Pleadings: Pretrial Procedure. In resolving a facial challenge, a court will review the pleadings to determine whether there are 

sufficient allegations to establish the plaintiff’s standing.

17. Motions to Dismiss: Jurisdiction: Pleadings: Appeal and Error. An 

appellate court reviews a trial court’s decision on a motion to dismiss for 

lack of subject matter jurisdiction based on a facial attack on the pleadings de novo.

18. ____: ____: ____: ____. Where the trial court’s decision on a motion 

to dismiss for lack of subject matter jurisdiction is based on a factual 

challenge, the court’s factual findings are reviewed under the clearly 

erroneous standard.

19. Insurance: Contracts: Words and Phrases. An indemnity contract is 

a chose in action because it confers a right to bring a legal action to 

recover a sum of money from or out of the contract.

20. Liability: Damages. Indemnification is available when one party is 

compelled to pay money which in justice another ought to pay or has 

agreed to pay.
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21. Pleadings: Evidence: Words and Phrases. A judicial admission is a 

formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of 

evidence by conceding for the purpose of litigation that the proposition 

of fact alleged by the opponent is true.

22. Jurisdiction. While parties cannot confer subject matter jurisdiction 

upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction created by waiver, estoppel, consent, or conduct 

of the parties, such does not prevent a party from conclusively admitting 

the truth of an underlying fact required to establish subject matter jurisdiction by judicial admission.

23. Pretrial Procedure: Pleadings. A general denial is not effective where 

an answer contains specific admissions of facts alleged.

24. Actions: Parties: Intent. The primary purpose of the real party in interest requirement is to protect the defendant from the risk of multiple 

litigation.

25. Insurance: Damages. Under the collateral source rule, the fact that the 

party seeking recovery has been wholly or partially indemnified for a 

loss by insurance or otherwise cannot be set up by the wrongdoer in 

mitigation of damages.

26. Circumstantial Evidence: Proof. Circumstantial evidence is not inherently less probative than direct evidence, and a fact proved by circumstantial evidence is nonetheless a proven fact.

27. Evidence: Proof. A finder of fact may draw reasonable inferences from 

the facts and circumstances proved.

28. Contracts: Words and Phrases. An indemnity agreement is a contract 

to be construed according to the principles generally applied in construction or interpretation of other contracts.

29. Contracts. A contract must receive a reasonable construction and must 

be construed as a whole, and if possible, effect must be given to every 

part of the contract.

30. Workers’ Compensation: Liability: Contracts. When an employer, 

liable to an employee under the Nebraska Workers’ Compensation Act, 

agrees to indemnify a third party for a loss sustained as the result of 

the third party’s payment to the indemnitor’s employee, the employer’s exclusion from liability accorded by the act does not preclude 

the third party’s action to enforce the indemnity agreement with the 

indemnitor-employer.

31. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have 

the jury instructed upon only those theories of the case which are presented by the pleadings and which are supported by competent evidence.

32. Jury Instructions: Appeal and Error. If the instructions given, which 

are taken as a whole, correctly state the law, are not misleading, and 
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adequately cover the issues submissible to a jury, there is no prejudicial 

error concerning the instructions and necessitating a reversal.

33. Verdicts: Appeal and Error. Where a party has sustained the burden 

and expense of trial and has succeeded in securing a verdict on the facts 

in issue, that party has the right to keep the benefit of the verdict unless 

there is prejudicial error in the proceedings by which it was secured.

34. Negligence. A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new 

efficient cause intervenes, not set in motion by him, and not connected 

with but independent of his acts and not flowing therefrom, and not reasonably in the nature of things to be contemplated or foreseen by him, 

and produced the injury, it is the dominant cause.

35. ____. Because the extent of foreseeable risk depends on the specific 

facts of the case, courts should leave such determinations to the trier of 

fact unless no reasonable person could differ on the matter.

36. Verdicts: Appeal and Error. A civil verdict will not be set aside where 

evidence is in conflict or where reasonable minds may reach different 

conclusions or inferences, as it is within the jury’s province to decide 

issues of fact.

37. Negligence: Liability. Where separate and independent acts of negligence by different persons combine to produce a single injury, each 

participant is liable for the damage, although one of them alone could 

not have caused the result.

38. Damages: Appeal and Error. The amount of damages to be awarded 

is a determination solely for the fact finder, and the fact finder’s decision will not be disturbed on appeal if it is supported by the evidence 

and bears a reasonable relationship to the elements of the damages 

proved.

39. Verdicts: Remittitur. Where a verdict is excessive, but not so much as 

to indicate passion or prejudice on the part of the jury, the error may be 

corrected by remittitur, if the excess can be estimated with reasonable 

certainty.

40. Remittitur: Appeal and Error. An appellate court should order remittitur only when the award is contrary to all reason.

Appeal from the District Court for Douglas County: Gary B

Randall, Judge. Affirme

Christopher Landau, P.C., of Kirkland & Ellis, L.L.P., 

William F. Hargens and Lauren R. Goodman, of McGrath, 

North, Mullin & Kratz, P.C., L.L.O., and on brief, Jeremy M. 

Feigenbaum, for appellant.
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Stephen B. Kinnaird and Sarah G. Besnoff, of Paul Hastings, 

L.L.P., Gilbert S. Keteltas, Robert G. Abrams, and Thomas 

E. Hogan, of Baker Hostetler, L.L.P., and Shawn D. Renner 

and Andre R. Barry, of Cline, Williams, Wright, Johnson & 

Oldfather, L.L.P., for appellee.

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

Funke, JJ

Funke, J

This case arises out of an explosion at a ConAgra Foods, 

Inc. (ConAgra), plant in Garner, North Carolina, which killed 

3 ConAgra employees and injured more than 60 others. When 

dozens of employees sued Jacobs Engineering Group Inc. 

(Jacobs), Jacobs sought contractual indemnification from 

ConAgra, but ConAgra declined, and Jacobs defended against 

and settled the claims.

Jacobs sued ConAgra for indemnification in the district 

court for Douglas County. Following a 4-week trial, the jury 

awarded Jacobs the full amount of the settlement payments, 

$108.9 million, and the court entered judgment on the verdict. 

We affirm.

I. BACKGROUND

1. Contract Bet

Jacobs and Con

ConAgra, a food manufacturer, contracted with Jacobs, an 

engineering firm, in 2007 to provide engineering services. 

Jacobs’ work under the contract was limited to work requested 

and approved by ConAgra in work orders. Section 10 of the 

parties’ engineering agreement contained mutual indemnification provisions which provided that each party indemnify 

the other for “claims, losses, costs, penalties, damages and/

or expenses” to the extent caused by the indemnifying party’s 

negligence or the negligence of others under that party’s control. Section 10 provided the following relevant indemnification provisions:
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10.1 [Jacobs] shall indemnify . . . ConAgra . . . 

against each and every claim, loss, cost, penalty, damage, 

or expense . . . suffered or incurred by any third parties, employees of ConAgra and employees of [Jacobs]. 

[Jacobs’] obligations hereunder shall be limited to the 

extent caused by the negligent acts, errors or omissions 

of [Jacobs], or anyone directly or indirectly employed 

by [Jacobs] or for whose acts [Jacobs] is otherwise 

liable. . . .

10.2 [Jacobs’] liability, however arising by reason of 

the performance of the services, is specifically limited as 

provided herein and ConAgra will indemnify and release 

[Jacobs] against all other claims, losses, costs, penalties, 

damages and/or expenses to the extent caused by the negligence of ConAgra and/or others under its control[.]

In 2008, ConAgra planned to update the Garner plant’s 

water heating system. ConAgra rejected Jacobs’ proposal for 

the project as too expensive, but retained Jacobs to provide 

limited management and engineering support. Jacobs designated an onsite project manager, Donald Pottner, to assist with 

the project.

2. Energy Systems Analys

ConAgra’s Safety Po

ConAgra hired Energy Systems Analysts (ESA), a highefficiency water heater contractor, to design and install a 

5-million Btu gas-fired water heater. ConAgra had previously 

engaged ESA to supply gas heat systems to plants in Iowa, 

Ohio, Pennsylvania, and Tennessee, and ConAgra had not 

experienced any safety issues with ESA.

ConAgra contractually imposed safety requirements on 

ESA’s work on the project. The contract required ESA to 

“abide by safety . . . rules at all times while on company property.” ConAgra personnel were required to bring “[a]pparent 

violations” of the “Contractor Work Rules” “or unacceptable 

industry work practices . . . to the attention of the contractor’s 

representative for prompt correction.”
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The contractor work rules required “practices differing from 

[ConAgra] policy . . . to be reviewed by [ConAgra] before 

the implementation.” The work rules placed responsibility for 

correction of “unacceptable conditions” on the “‘controlling 

employer,’ that is, the one in the best position to correct the 

situation or ensure its correction.” ConAgra’s management was 

required to report “[a]ny safety discrepancy observed . . . to 

the appropriate Contractor representative for immediate correction” and to suspend work “immediately” in the case of danger 

until “safety concern(s) have been corrected, to the satisfaction 

of the Company.”

The contractor work rules made ConAgra responsible for 

ensuring that ESA prepared a “Safe Plan of Action” (SPA) 

for its commissioning of the water heater to identify risks 

and outline each step of the process in order to complete the 

work safely. ConAgra also had a “Fire Prevention Plan” which 

required “special care and handling” requirements for flammable gases that “pose a risk of catastrophic explosion if ignited.” 

The fire prevention plan applied to all ConAgra facilities and 

set “procedures for controlling the hazards,” required identification of “potential ignition sources,” and only permitted the 

use or handling of natural gas “where vapors are prevented 

from reaching ignition sources.”

3. Garner Plant 

Heater Pro

ConAgra employee, Timothy Yost, was the engineering 

manager and supervisor at the Garner plant. ConAgra designated Yost as the individual responsible for the safety of all 

plant employees during the commissioning of the water heater. 

Yost was responsible for ensuring that ESA’s plans complied with ConAgra standards and the contractor work rules. 

ConAgra’s utility maintenance supervisor, John Puff, led the 

Garner plant’s utilities department and was responsible for its 

natural gas facilities.

ESA staff testified about the amount of control ConAgra 

exercised over the installation of the water heater. ESA’s 
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corporate designee testified that ConAgra had the final say on 

the project and controlled the schedule. He stated that Yost and 

Puff “were the decision-makers when it came to anything, even 

. . . when we were on site. If there was something that they 

didn’t like, we’d obviously have to change it.” He admitted 

that ConAgra did not provide directions of how the gas delivery system should be assembled.

On June 3, 2009, ESA provided its written plan for commissioning the water heater, which Yost and Puff reviewed 

and found acceptable. On June 4, Pottner left the plant on a 

planned medical leave and was not expected to return, and he 

ultimately was not present during the commissioning of the 

water heater. ConAgra confirmed its personnel would supervise 

the commissioning and that Jacobs’ services were not needed.

Puff was responsible for determining the procedure to connect the new equipment to the plant’s gas supply referred to 

as the “line-break” procedure. The written procedure required 

opening valves to purge gaslines at both the boiler and the 

hot water tank. The purpose of the purge was to remove any 

remaining mixture of air and natural gas in the line prior to firing the hot water heater. ConAgra identified explosion as a risk 

and specified completion of the line-break procedure as the 

method to control that risk.

On June 4, 2009, as part of the line-break procedure, Puff 

instructed the crew to purge the line to the boiler with a hose 

leading outside, but he failed to provide the instruction to 

purge the line to the hot water tank. Puff stated that “[w]e just 

didn’t get to it.” Yost admitted the line to the hot water tank 

should have been purged before startup to prevent an explosive mixture.

On June 5, 2009, at the direction of Yost, a ConAgra senior 

safety specialist inspected the pumproom where the new water 

heater was located. The report documented “[e]xposed wires” 

as possible ignition source hazards.

Curt Poppe, an ESA employee, was assigned to commission the water heater. On June 9, 2009, Poppe arrived at the 
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Garner plant and met with Yost to discuss the commission 

plan. Poppe’s commissioning plan did not include purging air 

from the lines, and Puff did not provide the line-break procedure to Poppe. Yost and Puff did not train Poppe in ConAgra’s 

contractor work rules or ensure that Poppe was certified as 

trained. In addition, no SPA was prepared for the project. 

ConAgra admitted that had an SPA been implemented, the 

explosion may have been prevented.

ConAgra’s policy and practice included supervising the 

work of contractors, and the utilities department did not allow 

contractors to work on utilities unsupervised. Puff assigned a 

ConAgra employee, Ethner “Buddy” Roberson, to supervise 

Poppe during commissioning. Roberson worked with Poppe 

throughout the morning and, with Puff’s knowledge, brought 

unrated temporary lighting into the room. Roberson had not 

reviewed the fire prevention plan, was not aware that combustibles should not be released into a room with ignition sources, 

and did not know whether the lighting he strung in the pumproom was safe for a flammable atmosphere.

When Poppe began the commission process, he had difficulty lighting the water heater. Over the next 31

⁄2 hours, Poppe 

repeatedly cracked the valve on the 3⁄8  -inch pilotline and placed 

a gas meter in front of the line as he released small streams of 

gas into the room. Poppe said he was “‘bleeding the line.’” He 

attempted to light the water heater 32 times.

Multiple ConAgra employees, including management, witnessed Poppe release gas into the room and were concerned 

about the presence of gas. A ConAgra utilities department 

employee smelled “[t]oo much gas” in the room and felt he 

was “in danger.” He reported Poppe’s unusual actions to Puff, 

who reported them to Yost.

Yost, and later Puff, went into the room and smelled gas. 

Puff admitted he did not tell Poppe that the line had not been 

purged, even after Puff realized Poppe was struggling to light 

the heater.

Puff was trained to purge lines outside; he had purged one of 

the lines outside on June 4, 2009. Puff “started smelling a lot 
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of gas” and thought “pure gas” was coming through the line. 

Puff was concerned that Poppe was not using the correct meter 

to measure the presence of gas or was using the meter improperly. A ConAgra witness admitted that under the contractor 

work rules, if the gas meter malfunctioned, then the commission should have been stopped.

There was evidence that Puff could have ordered an evacuation, but failed to do so. As the only designated plant 

emergency coordinator working that day, Puff controlled the 

decision to evacuate. An emergency evacuation plan stated 

that evacuation may be necessary in the face of “[i]mmediate or potential fire hazards” and could be completed within 

3 minutes.

Puff interrupted the commission process so that he and 

Poppe could walk outside to allow Poppe to calibrate the gas 

meter in fresh air. Puff then left the plant to pick up supplies 

for another project. Puff left Poppe with Roberson even though 

Puff testified that he did not believe Roberson was qualified 

to supervise clearing air from a gasline. Roberson thought 

something was wrong and went to the roof to try to locate an 

alternate purge point.

Poppe returned to the pumproom and released gas by opening the cap on the 2-inch gas pipe. The room flooded with gas 

in less than 60 seconds. Puff admitted he “‘should have stayed 

around a lot longer’” and had given the contractor “‘more 

credit’” than he should have. When asked about Poppe’s opening the cap on the gas pipe, Puff testified that if he had stayed, 

he “wouldn’t have allowed that.”

The pumproom exploded. Two sections of the plant’s roof 

collapsed, killing three ConAgra employees and inflicting serious injuries on others.

4. Explosion Investig

and Litigat

The North Carolina Department of Labor conducted an 

investigation into the explosion and found multiple violations of North Carolina code. The department determined that 
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ConAgra violated its duty to furnish conditions of employment 

“free from recognized hazards that were causing or likely to 

cause death or serious physical harm.” The department found 

multiple life-threatening conditions occurred in the presence of 

ConAgra management, including ConAgra’s failure to purge 

the 3-inch natural gasline used to supply gas to the vacuum 

pumproom and allowing the presence of numerous possible 

ignition sources while a natural gasline was being purged in an 

enclosed room.

In contrast, the North Carolina Department of Labor found 

Jacobs performed no work that could have contributed to the 

accident, did not have knowledge of the hazardous condition, 

and did not have a scope of work that would have permitted 

knowledge of the hazardous condition. ConAgra “accepted 

what the authorities determined” and did not conduct a separate investigation.

Thereafter, 67 individuals and ConAgra’s property insurers filed several lawsuits against Jacobs and Pottner; the total 

settlement demands exceeded $507 million. Shortly after the 

first suit was filed, Jacobs requested contractual indemnity 

from ConAgra and ConAgra denied that request and did not 

participate in the settlements.

A suit brought by seven ConAgra employees was the only 

case to go to trial. That case proceeded to trial in March 2012 

before the Johnston County Civil Superior Court of North 

Carolina, case No. 09-CV-2330 (referred to as “Brockington”). 

Before trial, ConAgra’s counsel wrote to Jacobs:

Based upon our understanding of the evidence in this 

case, and the fact that the plaintiffs’ claim for punitive 

damages has survived Jacobs’ motion for summary judgment, we believe there is a possibility of a significant jury 

verdict against Jacobs. As such, ConAgra requests that 

Jacobs take all reasonable steps to settle these claims.

ConAgra stated that “settlement of plaintiffs’ claims by Jacobs 

would be without prejudice as to any possible indemnity claim 

that Jacobs’ [sic] may have as to ConAgra . . . .”
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During the Brockington trial, Pottner became ill partway 

through his testimony, was briefly hospitalized, and returned 

home to Wisconsin. The court initially declared Pottner 

unavailable, but later found that Pottner’s counsel, who also 

represented Jacobs, misrepresented the nature or severity of 

Pottner’s illness. The court struck the defendants’ answers and 

confined the jury’s deliberations to the issue of damages. The 

jury awarded the Brockington plaintiffs $14.6 million.

The trial court later reinstated Jacobs’ answer and granted 

Jacobs a new trial. Before the second trial, Jacobs settled the 

suit for $20 million. Jacobs then settled the remaining cases 

and continued to request indemnification from ConAgra, which 

ConAgra declined.

Jacobs brought this action against ConAgra in January 2014. 

Jacobs claimed that it was entitled to the $108.9 million paid 

to settle the North Carolina cases. Jacobs requested only 

$17.7 million for the Brockington settlement, which represented the amount of the first verdict plus interest since the 

time of filing.

Prior to trial, ConAgra filed motions to compel Jacobs 

to provide the amounts paid by Jacobs and Jacobs’ insurers 

toward the settlements. The court overruled ConAgra’s various 

motions and found ConAgra’s arguments were not relevant to 

the “two substantive issues in this case,” which it determined 

were as follows: “(1) whether the [e]xplosion was caused by 

the alleged negligence of ConAgra and/or others under its 

control in order to trigger the indemnity provision; and (2) 

whether the amount of the settlement payments were objectively reasonable.”

During the 19-day trial in March 2016, the jury received 

over 300 exhibits and heard testimony from eight live witnesses and 40 videotaped depositions. The jury returned a 

special verdict which (1) found that both ConAgra and ESA 

were negligent, (2) apportioned liability of 70 percent to 

ConAgra and 30 percent to ESA, and (3) found that ConAgra 

controlled ESA. The jury further found that Jacobs was not 
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negligent, that Jacobs had settled the North Carolina lawsuits 

in good faith, and that the settlement amounts were objectively reasonable. The district court accepted the jury’s verdict. 

ConAgra renewed its motion for directed verdict and moved 

for judgment notwithstanding the verdict, remittitur, and a new 

trial. The court denied the motions, ConAgra timely appealed, 

and we sustained ConAgra’s request to bypass review by the 

Nebraska Court of Appeals.

II. ASSIGNMENTS OF ERROR

ConAgra assigns, restated, that the district court erred in 

failing to (1) grant ConAgra’s motion for directed verdict or 

motion for new trial, because Jacobs failed to prove that it had 

standing as the real party in interest to assert its indemnification 

claim; (2) order a remittitur, because ConAgra did not waive its 

workers’ compensation immunity; (3) grant ConAgra’s motion 

for directed verdict or motion for new trial, because Jacobs did 

not establish that its “‘losses’” were “‘caused by the negligence of ConAgra and/or others under its control,’” as required 

by the contract; and (4) alter or amend the judgment to remove 

damages relating to the Brockington settlement that were not 

caused by ConAgra.

III. STANDARD OF REVIEW

[1,2] Whether a party who commences an action has standing and is therefore the real party in interest presents a 

jurisdictional issue.1 When a jurisdictional question does not 

involve a factual dispute, determination of a jurisdictional 

issue is a matter of law which requires an appellate court to 

reach a conclusion independent from the trial court’s; however, 

when a determination rests on factual findings, a trial court’s 

1 Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873 

(2010). See, also, Applied Underwriters v. S.E.B. Servs. of New York, 297 

Neb. 246, 898 N.W.2d 366 (2017).
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decision on the issue will be upheld unless the factual findings 

concerning jurisdiction are clearly incorrect.2

[3,4] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as 

an admission of the truth of all competent evidence submitted 

on behalf of the party against whom the motion is directed; 

such being the case, the party against whom the motion is 

directed is entitled to have every controverted fact resolved in 

its favor and to have the benefit of every inference which can 

reasonably be deduced from the evidence.3 A directed verdict 

is proper at the close of all the evidence only when reasonable 

minds cannot differ and can draw but one conclusion from the 

evidence, that is, when an issue should be decided as a matter 

of law.4

[5,6] An appellate court reviews a denial of a motion to alter 

or amend the judgment for an abuse of discretion.5 An appellate court reviews a trial court’s ruling on a motion for a new 

trial for an abuse of discretion.6

[7-9] Contract interpretation presents a question of law.7

Whether the jury instructions given by the trial court are correct is a question of law.8

 An appellate court independently 

reviews questions of law decided by a lower court.9

2 Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658 N.W.2d 40 (2003). 

See, also, Skyline Manor v. Rynard, 288 Neb. 602, 852 N.W.2d 303 

(2014).

3 Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).

4 Id.

5 State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017). See, also, Armstrong, 

supra note 3.

6 Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906 

N.W.2d 1 (2018). See, also, Armstrong, supra note 3.

7 Cano v. Walker, 297 Neb. 580, 901 N.W.2d 251 (2017).

8 Armstrong, supra note 3.

9 Id.
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[10,11] When reviewing a jury verdict, the appellate court 

considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.10 A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find 

for the successful party.11

IV. ANALYSIS

1. Court Did Not Err in Deter

Jacobs Is Real Party in I

In this case, the trial court issued an order at the pleading 

stage which found that Jacobs had standing as the real party 

in interest. The court issued its order contemporaneous with 

its disposition of competing motions to compel discovery. 

ConAgra had sought discovery regarding a breakdown of payments made by Jacobs and Jacobs’ insurers toward the settlements in the North Carolina cases and argued the evidence 

was relevant to the issue of whether Jacobs is the real party 

in interest.

Under ConAgra’s theory, Jacobs brought this suit as a subrogee and not an indemnitee. ConAgra asserted that there is 

a possibility that the settlements entered into by Jacobs were 

fully funded by Jacobs’ insurers or other third parties and that 

if the evidence showed Jacobs’ insurers were fully subrogated, 

then Jacobs would lack standing to pursue its indemnification 

claim against ConAgra. The court disposed of this argument 

by stating, “It is clear that Jacobs has the right to bring this 

action for the full amount of the settlements against ConAgra 

even if [its] insurers paid part of the settlements.”

The parties continued to litigate the issue, including through 

posttrial motions filed by ConAgra which reiterated its theory 

that Jacobs is not the real party in interest. The court held a 

10 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 

N.W.2d 156 (2017).

11 Id.
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hearing and received an affidavit into evidence and issued an 

order overruling ConAgra’s motions, again determining that 

Jacobs is the real party in interest.

On appeal, ConAgra’s primary argument is that Jacobs 

is not the real party in interest. ConAgra argues that Jacobs 

failed to prove that it had standing as the real party in interest to seek indemnification and requests that we reverse the 

judgment below. Jacobs argues the trial court properly found 

that Jacobs is the real party in interest to pursue its contractual 

indemnification claim and that Jacobs did not assert claims as 

a subrogee.

Because the parties focus much of their attention on whether 

the district court erred in its determination that Jacobs has 

standing and is the real party in interest, and repeatedly raised 

the issue to the court through various motions before and after 

trial, we will discuss the district court’s determinations under 

both a facial and a factual analysis.

[12,13] Nebraska’s real party in interest statute provides 

that “[e]very action shall be prosecuted in the name of the real 

party in interest . . . .”12 The purpose of that section is to prevent the prosecution of actions by persons who have no right, 

title, or interest in the cause.13 The focus of the real party in 

interest inquiry is whether the party has standing to sue due to 

some real interest in the cause of action, or a legal or equitable 

right, title, or interest in the subject matter of controversy.14

Standing refers to whether a party had, at the commencement 

of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s or tribunal’s exercising its 

jurisdiction and remedial powers on the party’s behalf.15

12 Neb. Rev. Stat. § 25-301 (Reissue 2016).

13 Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 

(2016).

14 LeRette v. Howard, 300 Neb. 128, 912 N.W.2d 706 (2018); Manon v. Orr, 

289 Neb. 484, 856 N.W.2d 106 (2014).

15 Applied Underwriters, supra note 1.
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[14] We have said that the question of whether a party who 

commences an action has standing and is therefore the real 

party in interest is jurisdictional and that because the requirement of standing is fundamental to a court’s exercise of jurisdiction, either a litigant or a court can raise the question of 

standing at any time.16

[15] Because a defect in standing is a defect in subject matter jurisdiction, a challenge to standing is treated as a motion 

to dismiss for lack of subject matter jurisdiction brought 

under Neb. Ct. R. Pldg. § 6-1112(b)(1).17 We have previously 

explained that the stage of the litigation in which a party claims 

that its opponent lacks standing affects how a court should dispose of the claim.18

[16,17] If the motion is filed at the pleadings stage, it is considered a “facial challenge.”19 In resolving a facial challenge, 

a court will review the pleadings to determine whether there 

are sufficient allegations to establish the plaintiff’s standing.20

The court will accept the allegations of the complaint as true 

and draw all reasonable inferences in favor of the nonmoving 

party.21 At the pleadings stage, the standard for determining the 

sufficiency of a complaint to allege standing is fairly liberal.22

An appellate court reviews a trial court’s decision on a motion 

to dismiss for lack of subject matter jurisdiction based on a 

facial attack on the pleadings de novo.23

16 See Stevens v. Downing, Alexander, 269 Neb. 347, 693 N.W.2d 532 (2005).

17 In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830 N.W.2d 474 

(2013).

18 Field Club v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 

102 (2012).

19 Citizens Opposing Indus. Livestock v. Jefferson Cty., 274 Neb. 386, 391, 

740 N.W.2d 362, 366 (2007).

20 Id.

21 Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).

22 Applied Underwriters, supra note 1.

23 See Washington, supra note 21.
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[18] If a motion challenging a court’s subject matter jurisdiction is filed after the pleadings stage, and the court holds 

an evidentiary hearing and reviews evidence outside the pleadings, it is considered a “factual challenge.”24 The party opposing the motion must then offer affidavits or other relevant 

evidence to support its burden of establishing subject matter 

jurisdiction.25 Where the trial court’s decision on a motion to 

dismiss for lack of subject matter jurisdiction is based on a factual challenge, the court’s factual findings are reviewed under 

the clearly erroneous standard.26

(a) Facial Challenge

(i) Background

Jacobs’ original complaint asserted a contractual indemnification claim against ConAgra. Jacobs alleged ConAgra’s 

refusal to indemnify breached an agreement which stated in 

part: “ConAgra will indemnify and release [Jacobs] against all 

other claims, losses, costs, penalties, damages and/or expenses 

to the extent caused by the negligence of ConAgra and/or 

others under its control.” Jacobs’ referred to the parties’ agreement in the complaint and attached a copy of the agreement to 

the complaint.

Jacobs alleged that it had “incurred and continues to incur 

claims, losses, costs, penalties, damages and/or expenses . . . 

in defending against the [l]awsuits.” ConAgra filed a motion 

which argued Jacob’s indemnity claims should be dismissed 

because “there is no allegation that [Jacobs] has paid the 

claimants any sums for which [ConAgra] should be required to 

indemnify [Jacobs].”

Prior to a decision on ConAgra’s motion to dismiss, Jacobs 

filed an amended complaint which alleged that it had “incurred 

claims, losses, costs, penalties, damages and/or expenses 

24 Id. at 913, 734 N.W.2d at 311.

25 Id.

26 See Bohaboj v. Rausch, 272 Neb. 394, 721 N.W.2d 655 (2006).
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. . . in connection with the [l]awsuits” and that it had “notified ConAgra in writing that . . . Jacobs has incurred costs 

and expenses in connection with the [l]awsuit[s] covered by 

ConAgra’s indemnity obligations, including costs of settlement.” Jacobs further alleged that “ConAgra’s refusal to . . . 

indemnify Jacobs for settlements, defense fees and any other 

payments, costs and expenses incurred by Jacobs in defense 

and resolution of the [l]awsuits, is a breach of S[ubs]ection 

10.2 of the Agreement.”

ConAgra responded by filing an answer and an amended 

answer, both of which admitted Jacobs’ allegations that it 

incurred claims, losses, costs, penalties, damages, and/or 

expenses, but “denie[d] that such expenses and costs were 

reasonable and allege[d] that those expenses and costs were 

increased because of the conduct of Jacobs, its employee . . . 

Pottner and its counsel.” ConAgra denied Jacobs’ allegation 

that ConAgra breached an agreement to indemnify, but specifically admitted that “the expenses incurred by Jacobs in 

defending the lawsuits and settling claims were not reasonable 

and were increased by the conduct of Jacobs, its employee . . . 

Pottner and its counsel.” (Emphasis supplied.)

Thereafter, ConAgra sought discovery regarding Jacobs’ 

damages. ConAgra filed a motion to compel Jacobs to answer 

interrogatories which sought a breakdown of the amount of 

money Jacobs and Jacobs’ insurers paid toward the settlements. ConAgra argued that it had not agreed to indemnify 

Jacobs’ insurers; that amounts paid by Jacobs’ insurers were 

not recoverable; that ConAgra had a right to know whether any 

of Jacobs’ insurers had a subrogation claim against ConAgra, 

and if so, how much; and that Jacobs was not the real party in 

interest to bring a claim as a subrogee.

ConAgra relied on Jelinek v. Nebraska Nat. Gas Co.,

27 a 

subrogation case in which we found that homeowners were 

not the real party in interest to bring property damage claims 

27 Jelinek v. Nebraska Nat. Gas Co., 196 Neb. 488, 243 N.W.2d 778 (1976).
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against a gas company, because the homeowners’ insurer had 

been fully subrogated. The insureds in Jelinek admitted they 

were “satisfied with the amount paid them by the insurance 

company,” “considered it as settlement in full,” and “ma[de] 

no demand on the defendant for the payment of any additional 

amount because they [felt] that no additional amount [was] 

owing to them.”28

The trial court overruled ConAgra’s motion to compel discovery and, sua sponte, without reviewing evidence, found 

that Jacobs was the real party in interest and that “any breakdown of payments between Jacobs and its insurers or communications and agreements between Jacobs and its insurers is 

not relevant.” The court cited Krause v. State Farm Mut. Auto. 

Ins. Co.29 for the proposition that when an insurer indemnifies its insured for only part of the loss the insured retains the 

right of action for the entire loss and stated that a partially 

subrogated insurer has an equitable interest in the insured’s 

recovery.30

The court stated:

It is clear that Jacobs has the right to bring this action for 

the full amount of the settlements against ConAgra even 

if their insurers paid part of the settlements. The insurers would then have a right of action against Jacobs, not 

ConAgra, in the event that Jacobs received a judgment.

(ii) Disposition

[19,20] A party to a contract is generally a real party in 

interest with standing to raise the claim of breach of contract.31

28 Id. at 490, 243 N.W.2d at 779.

29 Krause v. State Farm Mut. Auto. Ins. Co., 184 Neb. 588, 169 N.W.2d 601 

(1969), modified on denial of rehearing 184 Neb. 638, 170 N.W.2d 882.

30 See John P. Lenich, Nebraska Civil Procedure § 6:3 (2018) (and cases 

cited therein).

31 See, Spanish Oaks, Inc. v. Hy-Vee, Inc., 265 Neb. 133, 655 N.W.2d 390 

(2003); Peerless Ins. Co. v. Bukacek, 211 Neb. 505, 319 N.W.2d 98 (1982).
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An indemnity contract is a chose in action because it confers 

a right to bring a legal action to recover a sum of money from 

or out of the contract.32 Under Nebraska law, indemnification 

is available when one party is compelled to pay money which 

in justice another ought to pay or has agreed to pay.33 Nebraska 

has long held that a claim for indemnity accrues at the time the 

indemnity claimant suffers loss or damage.34 We have elaborated that this means that the cause of action accrues when 

the would-be indemnitee pays the judgment arising from the 

underlying loss or damage.35

In this case, Jacobs brought an express indemnification claim 

based on ConAgra’s refusal to indemnify under an agreement 

between the parties. Jacobs has standing to raise this claim.

ConAgra argues further discovery could potentially show 

that as a factual matter, Jacobs has been fully reimbursed for its 

losses. When a trial court analyzes a facial challenge, however, 

the court does not make factual findings but accepts the complaint allegations as true and draws all reasonable inferences 

in favor of the nonmoving party. ConAgra’s subrogation argument violates this rule, because it asks this court to construe 

the parties’ allegations in ConAgra’s favor. We will not do 

so, particularly where ConAgra admitted in its pleadings that 

Jacobs has incurred losses and damages.

[21,22] A judicial admission is a formal act done in the 

course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production 

of evidence by conceding for the purpose of litigation that 

32 See Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295 Neb. 

419, 889 N.W.2d 596 (2016).

33 Downey v. Western Comm. College Area, 282 Neb. 970, 808 N.W.2d 839 

(2012).

34 Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 716 N.W.2d 87 

(2006). See City of Wood River v. Geer-Melkus Constr. Co., 233 Neb. 179, 

444 N.W.2d 305 (1989).

35 Id.; Lyhane v. Durtschi, 144 Neb. 256, 13 N.W.2d 130 (1944).
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the proposition of fact alleged by the opponent is true.36

While parties cannot confer subject matter jurisdiction upon 

a judicial tribunal by either acquiescence or consent, nor may 

subject matter jurisdiction be created by waiver, estoppel, 

consent, or conduct of the parties, such does not prevent a 

party from conclusively admitting the truth of an underlying 

fact required to establish subject matter jurisdiction by judicial admission.37

At the time the trial court first determined the issue of the 

real party in interest, Jacobs’ operative complaint alleged that 

Jacobs had incurred losses and damages in connection with 

the North Carolina lawsuits. ConAgra admitted that Jacobs 

incurred losses and damages, but denied that the amounts were 

reasonable. ConAgra’s unequivocal admission that Jacobs has 

sustained some injury in fact establishes that Jacobs has standing to pursue its express indemnification claim.

[23] ConAgra argues that its admissions are not conclusive because, in responding to Jacobs’ claim for breach of the 

implied covenant of good faith and fair dealing, ConAgra’s 

pleading stated “ConAgra denies all allegations in the Amended 

Complaint except those specifically admitted above.” We agree 

with Jacobs that ConAgra’s general denial does not overcome the admissions made by ConAgra in its specific denials 

directed toward Jacobs’ allegations that it incurred losses and 

damages. Nebraska has long held that a general denial is not 

effective where an answer contains specific admissions of facts 

alleged.38 Thus, the scope of ConAgra’s general denial is limited by the facts admitted in its answer.

The allegations show that in both its answer and its amended 

answer to Jacobs’ amended complaint, ConAgra broadly 

admitted that Jacobs incurred claims, losses, costs, penalties, 

36 Wisner v. Vandelay Investments, 300 Neb. 825, ___ N.W.2d ___ (2018).

37 Id.

38 See, State Securities Co. v. Corkle, 191 Neb. 578, 216 N.W.2d 879 (1974); 

Johnson v. School Dist. No. 3, 168 Neb. 547, 96 N.W.2d 623 (1959).
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damages, and/or expenses. ConAgra did not raise the real party 

in interest issue as an affirmative defense until responding to 

Jacobs’ second amended complaint filed after the court had 

already determined that Jacobs had standing and was the real 

party in interest. Even under a de novo facial review, ConAgra’s 

affirmative defense allegation is insufficient, because it stated 

that Jacobs is not the real party in interest “to the extent the 

claims it asserts are as a subrogee.”

ConAgra’s admissions establish that Jacobs’ express indemnity claim had accrued and that Jacobs sought to invoke 

the court’s jurisdiction in order to remedy ConAgra’s refusal 

to indemnify. This is sufficient to establish that Jacobs has 

standing and is the real party in interest with respect to its 

express indemnification claim and to show that the pleadings 

do not support ConAgra’s theory that Jacobs asserted claims as 

a subrogee.

[24] We have said the primary purpose of the real party 

in interest requirement is to protect the defendant from the 

risk of multiple litigation.39 ConAgra has not advanced a 

persuasive argument that it will be forced to defend claims 

brought by multiple parties. The trial court addressed this 

aspect of ConAgra’s argument by explaining that Jacobs’ 

insurers would have a right to recovery against Jacobs and 

not ConAgra.

When the indemnity paid by the insurer covers only part 

of the loss, the right of action remains in the insured for the 

entire loss.40 This rule is “‘founded on the principle that the 

wrongful act was single and indivisible, and gives rise to but 

one liability. Upon this theory the splitting of causes of action 

is avoided and the wrongdoer is not subjected to a multiplicity 

39 See, Peerless Ins. Co., supra note 31; Redding v. Gibbs, 203 Neb. 727, 280 

N.W.2d 53 (1979). See, also, Lenich, supra note 30, § 6:9.

40 See, Schmidt v. Henke, 192 Neb. 408, 222 N.W.2d 114 (1974); Krause, 

supra note 29; Shiman Bros. & Co. v. Nebraska National Hotel Co., 143 

Neb. 404, 9 N.W.2d 807 (1943).
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of suits.’”41 We have recognized one exception to this rule, 

not applicable here, where a tort-feasor or the tort-feasor’s 

insurer, with notice of an insurer’s subrogation claim, procures 

a release by settling with the insured.42

ConAgra’s theory is not based on pleading allegations and 

therefore is not persuasive under a facial challenge. Accepting 

the parties’ allegations as true and viewing reasonable inferences in Jacobs’ favor, Jacobs incurred some amount of damages as a result of ConAgra’s refusal to indemnify, ConAgra 

admitted this, and there are no contrary factual allegations stating that Jacobs’ damages have been fully reimbursed. Under 

the rule from Krause, Jacobs has a right to bring an action 

for the full amount of its damages. The trial court was correct 

in determining that ConAgra was not forced to defend claims 

brought by multiple parties.

ConAgra also suggests Jacobs’ claim may be barred by 

Nebraska’s antisubrogation rule. Under the antisubrogation 

rule, no right of subrogation can arise in favor of an insurer 

against its own insured or coinsured for a risk covered by 

the policy, even if the insured is a negligent wrongdoer.43

To allow subrogation under such circumstances would permit an insurer, in effect, to avoid the very coverage which its 

insured purchased.44 For example, a fully subrogated insurer of 

Jacobs cannot assert a subrogation claim against Jacobs. Here, 

ConAgra’s antisubrogation argument asks this court to assume 

that the real party in interest is a fully subrogated insurer of 

Jacobs which also happens to be an insurer of ConAgra for the 

same risks. This argument is not supported by the pleadings. 

41 Krause, supra note 29, 184 Neb. at 593, 169 N.W.2d at 604 (emphasis in 

original).

42 Milbank Ins. Co. v. Henry, 232 Neb. 418, 441 N.W.2d 143 (1989).

43 SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014); 

Buckeye State Mut. Ins. Co. v. Humlicek, 284 Neb. 463, 822 N.W.2d 351 

(2012).

44 Id.
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Based on the pleadings, we find Jacobs, and not ConAgra’s 

insurer, is the real party in interest and is asserting an indemnification claim and not a subrogation claim. We therefore reject 

ConAgra’s antisubrogation argument.

As noted, after the trial court determined that Jacobs was 

the real party in interest, ConAgra continued to press the 

issue through pretrial motions, objections at trial, and posttrial 

motions. We discuss below ConAgra’s factual challenge and 

further explain why the trial court did not err in determining 

that Jacobs is the real party in interest.

(b) Factual Challenge

(i) Background

Before trial, ConAgra filed another motion to compel discovery of the amounts that Jacobs and its insurers paid to 

settle the North Carolina lawsuits. The court issued an order 

which maintained its prior ruling that these items were not discoverable. The court again rejected the argument that Jacobs 

brought its claim as a subrogee. The court’s order stated 

that “the Court is bound by the Agreement, which contains 

an express indemnity contract between the parties. Jacobs is 

suing for ConAgra’s alleged breach of the Agreement, not for 

subrogation.”

ConAgra revived the real party in interest issue at trial when 

it moved for a directed verdict at the close of Jacobs’ evidence. 

ConAgra argued that Jacobs had not offered evidence that it 

actually made payments to the North Carolina plaintiffs. The 

court denied the motion, and after trial, ConAgra renewed its 

motion for directed verdict and moved for judgment notwithstanding the verdict and a new trial. The court issued a written 

order which explained its reasons for overruling ConAgra’s 

motions.

The court clarified that it interpreted ConAgra’s argument 

as an objection to Jacobs’ damages, rather than solely an 

argument about standing, and explained that ConAgra’s arguments contravened the collateral source rule. The court rejected 
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ConAgra’s contention that the collateral source rule did not 

apply in this breach of contract action premised upon negligent conduct.

[25] Under the collateral source rule, the fact that the 

party seeking recovery has been wholly or partially indemnified for a loss by insurance or otherwise cannot be set up 

by the wrongdoer in mitigation of damages.45 The theory 

underlying this rule is to prevent a tort-feasor from escaping 

liability because of the act of a third party, even if a possibility exists that the plaintiff may be compensated twice.46 The 

majority of courts do not apply the collateral source rule to 

pure breach-of-contract actions.47 However, in cases where 

the breach of contract is of a tortious character, the collateral source rule prevents unjust enrichment of the breaching party.48

Here, the court found that the contract expressly incorporated tort principles of negligence and found the collateral 

source rule applied. The court cited to Countryside Co-op v. 

Harry A. Koch Co.49 and found that the damages Jacobs sought 

to recover from ConAgra, a tort-feasor, could not be diminished by losses that were wholly or partially indemnified by 

insurance or another collateral source. ConAgra did not assign 

as error this aspect of the court’s ruling, and we do not find 

plain error based on the facts of this case, given that the other 

source of payment alleged is insurance, which specifically 

invokes the collateral source rule.50

45 Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273 

(2013).

46 Id.

47 See Midland Mut. Life Ins. v. Mercy Clinics, 579 N.W.2d 823 (Iowa 1998) 

(citing cases).

48 See John Munic Enterprises, Inc. v. Laos, 235 Ariz. 12, 326 P.3d 279 

(Ariz. App. 2014).

49 Countryside Co-op, supra note 1.

50 See Huenink v. Collins, 181 Neb. 195, 147 N.W.2d 508 (1966).
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In addressing ConAgra’s reliance on Jelinek,

51 the court 

noted that the insureds in Jelinek were satisfied with payments 

made by their insurer and made no demand on the defendant 

for payment. The court also referenced Schmidt v. Henke,

52 a 

similar case cited in Jelinek, in which the insured had released 

its claims against the defendant. The court distinguished both 

Jelinek and Schmidt from the present case and made a factual finding that “Jacobs has made a demand on ConAgra for 

payment and has not expressly released any claims against 

ConAgra.” The court again found that Jacobs was the real party 

in interest.

(ii) Disposition

ConAgra argues that on this record, there is no way to tell 

whether this case falls on the Jelinek or Krause side of the line. 

Jacobs argues the record supports the district court’s finding 

that Jacobs is the real party in interest.

At trial, Jacobs introduced evidence, with information about 

the payor redacted, that wire transfers were made to pay 

the various settlements. The settlement documents stated that 

“JACOBS and/or its insurers” will pay. Jacobs’ vice president 

of global litigation testified that all of the settlements have 

been paid, but did not testify who made the payments. Jacobs’ 

expert testified that he was asked to “review the settlements 

that were paid by Jacobs.” ConAgra objected and argued if 

the witness’ answer were allowed to stand that would open the 

door for ConAgra to inquire into the amounts paid by Jacobs 

and its insurers. The court responded that “Jacobs is the real 

party in interest” and struck the witness’ answer so that the jury 

would not hear evidence of collateral source payments.

After trial, ConAgra moved for judgment notwithstanding 

the verdict and a new trial, in part based on its argument that 

Jacobs failed to establish standing. Citing Citizens Opposing 

51 Jelinek, supra note 27.

52 Schmidt, supra note 40.
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Indus. Livestock v. Jefferson Cty.,

53 Jacobs requested an evidentiary hearing. In Citizens Opposing Indus. Livestock, we 

held that where a motion to dismiss for lack of subject matter 

jurisdiction due to lack of standing was raised for the first time 

after trial, the motion was considered a factual challenge and 

the trial court was required to hold an evidentiary hearing to 

give a plaintiff the opportunity to offer evidence on the standing issue.

The court granted Jacobs’ request, and Jacobs offered its 

insurance policies into evidence. The policies showed that 

Jacobs had deductible obligations and a 10-percent copayment obligation for all sums that exceeded $7.5 million. 

Although there was no direct evidence that Jacobs paid these 

obligations, there was also no evidence that Jacobs’ insurers 

waived these obligations. ConAgra did not offer any evidence 

to support its theory and did not assign error to the district 

court’s decisions regarding discovery. ConAgra also did not 

assign error as to the court’s factual findings and clarified that 

“[t]his appeal involves only questions of law . . . .”54 Jacobs’ 

insurance policies therefore established circumstantial evidence that Jacobs paid a share of the $108.9 million in settlement payments.

[26,27] Circumstantial evidence is not inherently less probative than direct evidence, and a fact proved by circumstantial 

evidence is nonetheless a proven fact.55 A finder of fact may 

draw reasonable inferences from the facts and circumstances 

proved.56 Based on the court’s specific findings that “Jacobs 

has made a demand on ConAgra for payment and has not 

expressly released any claims against ConAgra,” and the insurance policies in evidence, we find the trial court’s factual 

determination that Jacobs had standing and was the real party 

53 Citizens Opposing Indus. Livestock, supra note 19.

54 Brief for appellant at 4.

55 See State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

56 In re Interest of Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017).
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in interest was not clearly erroneous. There is evidence in 

the record to support the district court’s finding that Jacobs 

had standing to pursue its express indemnity claim and that 

ConAgra will not be subjected to multiple litigation.

Although ConAgra challenged Jacobs’ standing before the 

end of trial, unlike the defendant in Citizens Opposing Indus. 

Livestock, ConAgra was not prejudiced by the court’s decision 

to hold a posttrial evidentiary hearing. ConAgra was on notice 

of the court’s ruling on standing and objected at trial whenever 

a witness for Jacobs testified that Jacobs had paid the settlements. The court’s factual determination regarding Jacobs’ 

standing was merely a consistent supplement to its determination at the pleading stage.

Under both a facial and a factual analysis, this assignment of 

error is without merit.

2. Court Did Not Err in Fi

ConAgra’s Workers’ Compens

Immunity Inappli

ConAgra asserts the trial court erred in finding that Jacobs 

could be indemnified for settlements made to ConAgra employees, because the indemnification agreement with Jacobs did 

not explicitly waive ConAgra’s workers’ compensation immunity. Jacobs argues that ConAgra agreed to indemnify Jacobs 

for claims and losses incurred by ConAgra employees and that 

the agreement is all that is required under Nebraska law. We 

agree with Jacobs that ConAgra misconstrues our precedent 

regarding the relationship between the Nebraska Workers’ 

Compensation Act (NWCA), Neb. Rev. Stat. § 48-101 et 

seq. (Reissue 2010, Cum. Supp. 2016 & Supp. 2017), and 

an employer’s liability based on express indemnification of 

third parties.

[28,29] An indemnity agreement is a contract to be construed according to the principles generally applied in construction or interpretation of other contracts.57 A contract must 

57 Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
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receive a reasonable construction and must be construed as a 

whole, and if possible, effect must be given to every part of 

the contract.58

(a) Parties’ Contract Covered 

Indemnification of Claims 

and Losses Incurred by 

ConAgra Employees

Subsection 10.1 of the contract provides that “[Jacobs] shall 

indemnify . . . ConAgra . . . against each and every claim, loss, 

cost, penalty, damage, or expense . . . suffered or incurred by 

any third parties, employees of ConAgra and employees of 

[Jacobs].” Subsection 10.2 provides that “ConAgra will indemnify and release [Jacobs] against all other claims, losses, costs, 

penalties, damages and/or expenses to the extent caused by the 

negligence of ConAgra and/or others under its control.”

The district court explained that “[w]hen Section 10 of the 

Agreement is viewed as a whole, there is no question that 

S[ubs]ection 10.2 is an express contract in which ConAgra 

agreed to indemnify Jacobs against claims by ConAgra employees.” We agree the meaning of section 10 becomes clear once 

subsections 10.1 and 10.2 are construed together.

Subsections 10.1 and 10.2 are reciprocal indemnification 

provisions. Subsection 10.1 states Jacobs shall indemnify 

ConAgra “against each and every claim, loss, cost, penalty, 

damage, or expense” incurred by “employees of ConAgra,” 

and subsection 10.2 states that ConAgra will indemnify Jacobs 

“against all other claims, losses, costs, penalties, damages and/

or expenses.” In addition, subsection 10.1 states that Jacobs’ 

“obligations hereunder shall be limited to the extent caused by 

the negligent acts, errors or omissions of [Jacobs],” and subsection 10.2 states that Jacobs’ liability “is specifically limited 

as provided herein.”

Reading section 10 as a whole and in context, the term 

“all other claims” as provided in subsection 10.2 must refer 

58 Id.
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to “all other claims” within section 10. Because subsection 

10.1 plainly provides for indemnification of claims brought by 

employees of ConAgra, when read together, subsections 10.1 

and 10.2 provide a clear indication that ConAgra agreed to 

indemnify Jacobs for claims and losses incurred by employees of ConAgra “to the extent caused by the negligence of 

ConAgra and/or others under its control.” Thus, the district 

court correctly interpreted the parties’ contract to obligate 

ConAgra to indemnify claims and losses incurred by ConAgra 

employees caused by ConAgra’s negligence.

(b) NWCA Does Not Immunize ConAgra 

From Indemnifying Jacobs for Losses 

Sustained by ConAgra Employees

Section 48-148 of the NWCA provides that if an employee’s injury arises out of and in the course of employment, 

the employee’s exclusive remedy is against the employer for 

workers’ compensation.59 The NWCA imposes liability on the 

employer without fault, and in return, shields the employer 

from tort actions.60 But nothing in Nebraska law or public 

policy prevents an employer from indemnifying a third party 

for losses paid to the indemnitor’s employee.61

[30] We held in Union Pacific RR. Co. v. Kaiser Ag. 

Chem. Co.62 that when an employer, liable to an employee 

under the NWCA, agrees to indemnify a third party for a 

loss sustained as the result of the third party’s payment to 

the indemnitor’s employee, the employer’s exclusion from 

liability accorded by the NWCA does not preclude the third 

59 Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 729 N.W.2d 80 

(2007).

60 Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 

(2013).

61 See, Petznick v. United States, 575 F. Supp. 698 (D. Neb. 1983); Union 

Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 

(1988).

62 Union Pacific RR. Co., supra note 61.
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party’s action to enforce the indemnity agreement with the 

indemnitor-employer.63

ConAgra argues that Jacobs’ claim is based on a general indemnification provision and that ConAgra cannot be 

deprived of the protections of the NWCA absent an affirmative waiver of workers’ compensation immunity. Our precedent, however, does not recognize the rule ConAgra suggests, and we have taken the opposite approach in analyzing 

indemnification agreements, finding a waiver of workers’ 

compensation immunity where an indemnity provision fails 

to include language stating that an employer has not waived 

immunity.64

In interpreting the effectiveness of the indemnity agreement in Union Pacific RR. Co., we noted that the “agreement 

contains no specific provision or language which excludes, 

exempts, or exonerates [the employer] from liability for indemnification or contribution as a contractual duty,”65 and concluded that the employer remained liable for indemnification 

or contribution based on the railroad’s settlement with the 

employer’s employee. We found that to conclude otherwise 

would rewrite the agreement by adding a provision to preserve 

the employer’s workers’ compensation immunity.66

Similarly, in Oddo v. Speedway Scaffold Co.,

67 we cited 

Union Pacific RR. Co. and found the NWCA did not bar a 

contractor’s liability under an indemnification agreement by 

reasoning that the agreement “contains no specific provision 

or language which excludes, exempts, or exonerates Contractor 

from indemnification as a contractual duty.”68

63 See, also, Harsh International v. Monfort Indus., 266 Neb. 82, 662 N.W.2d 

574 (2003).

64 Union Pacific RR. Co., supra note 61.

65 Id. at 169, 425 N.W.2d at 879.

66 Id.

67 Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).

68 Id. at 9, 443 N.W.2d at 602.
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The same analysis applies here. The agreement between 

ConAgra and Jacobs includes indemnification obligations for 

claims and losses incurred by ConAgra employees and does not 

express any exclusions in favor of ConAgra or Jacobs based on 

workers’ compensation immunity. Therefore, ConAgra’s contractual liability remains.

ConAgra urges a different result based on our decision in 

Harsh International v. Monfort Indus.69 In Harsh International, 

the district court dismissed a petition brought by a manufacturer which asserted a contribution claim against an employer, 

after settling claims brought by injured employees. We affirmed 

the district court’s dismissal of the petition. In doing so, we 

rejected the manufacturer’s implied indemnity claim and found 

the employer’s liability was limited to the employee, absent 

an express indemnity contract or an implied indemnification 

claim involving a special relationship.70 In dicta, we contrasted 

a contractual indemnity claim from an implied indemnity claim 

by stating that “[u]nder an express contract of indemnity, 

an employer has explicitly agreed to reimburse a third party 

for payment to an injured employee.”71 We did not hold, as 

ConAgra argues, that an employer who enters an indemnity 

agreement must affirmatively waive its workers’ compensation 

immunity in order to be subject to indemnity claims brought by 

third parties based on employees’ losses.

Rather, we have consistently held that an indemnification 

agreement is construed according to general contract principles.72 ConAgra may be applying the different rule, not 

applicable here, that an indemnitee shall not be indemnified 

69 Harsh International, supra note 63.

70 Id.

71 Id. at 88, 662 N.W.2d at 580.

72 See, Kuhn, supra note 57; Oddo, supra note 67; Union Pacific RR. Co., 

supra note 61. See, also, Woodmen of the World Life Ins. Soc. v. Peter 

Kiewit Sons’ Co., 196 Neb. 158, 241 N.W.2d 674 (1976); Currency 

Services, Inc. v. Passer, 178 Neb. 286, 133 N.W.2d 19 (1965).
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for a loss occasioned by his or her own negligence unless the 

language of the contract affirmatively expresses an intent to 

indemnify for such loss.73 Here, Jacobs seeks indemnification 

for claims and losses caused by ConAgra’s negligence and not 

Jacobs’ own negligence. The NWCA does not bar ConAgra’s 

liability to Jacobs for settlements made with ConAgra employees. This assignment of error is without merit.

3. Jacobs Established Jury Issue 

ConAgra Breached Co

ConAgra assigns, restated, that the district court erred in 

declining to direct a verdict in favor of ConAgra or grant a 

new trial based on the argument that Jacobs failed to establish 

ConAgra breached the contract.

In order to establish that ConAgra’s refusal to indemnify 

breached the contract at issue, Jacobs was required to satisfy two components: (1) that Jacobs incurred claims, losses, 

costs, penalties, damages, and/or expenses and (2) that Jacobs’ 

claims, losses, costs, penalties, damages, and/or expenses 

were caused by the negligence of ConAgra and/or others 

under its control. ConAgra asserts Jacobs failed to prove both 

aspects as a matter of law. We find no merit to this assignment 

of error.

(a) Jacobs Established Sufficient 

Evidence of Its Claims, 

Losses, or Damages to 

Submit Issue to Jury

ConAgra argues Jacobs did not establish a triable claim 

that ConAgra caused Jacobs’ losses. ConAgra relies on an 

instruction given by the district court regarding Jacobs’ damages which stated that “Jacobs is entitled to indemnification 

for all objectively reasonable settlements of the North Carolina 

lawsuits to the extent that the explosion and/or the resulting 

73 Kuhn, supra note 57.
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injuries and damages to the North Carolina plaintiffs were 

caused by the negligence of ConAgra and/or others under its 

control.” (Emphasis supplied.) ConAgra argues the court erred 

by instructing the jury that the losses at issue were the injuries 

and damages from the underlying explosion, as opposed to 

Jacobs’ settlement payments. ConAgra argues that it was prejudiced, because the court’s instructions and special verdict form 

deprived ConAgra of the ability to argue that the settlements 

were caused by the efficient intervening cause of defense counsel’s performance during the Brockington trial.

[31-33] A litigant is entitled to have the jury instructed upon 

only those theories of the case which are presented by the 

pleadings and which are supported by competent evidence.74

If the instructions given, which are taken as a whole, correctly 

state the law, are not misleading, and adequately cover the 

issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.75 Where 

a party has sustained the burden and expense of trial and has 

succeeded in securing a verdict on the facts in issue, that party 

has the right to keep the benefit of the verdict unless there is 

prejudicial error in the proceedings by which it was secured.76

ConAgra claims it was prevented from arguing that the 

actions of defense counsel during the Brockington trial were 

an unforeseeable efficient intervening cause that negated its 

liability. ConAgra points to language from the court’s damages instruction provided above, and the special verdict form, 

which asked the jury: “Did ConAgra’s negligence proximately 

cause the explosion and/or the resulting injuries and damages 

to the North Carolina plaintiffs?” and “Were the settlement 

amounts that Jacobs is seeking in all of the North Carolina 

lawsuits objectively reasonable?” In evaluating ConAgra’s 

argument, we cannot view these instructions in artificial 

74 Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).

75 Id.; InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).

76 Wolfe v. Abraham, 244 Neb. 337, 506 N.W.2d 692 (1993).
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isolation but must consider the instructions provided to the 

jury as a whole.77

Beginning with the court’s statement of the case instruction, 

jury instruction No. 2, the court explained that Jacobs’ claim 

was not confined to only its “losses” as ConAgra argues on 

appeal. The court provided the language of subsection 10.2 

to demonstrate that Jacobs sought to recover for “claims, 

losses, costs, penalties, damages and/or expenses.” The court 

instructed the jury that it had determined that subsection 10.2 

required ConAgra to indemnify Jacobs “for claims to the extent 

the Garner plant explosion and/or the resulting injuries and 

damages were caused by the negligence of ConAgra and/or 

others under ConAgra’s control.” (Emphasis supplied.)

The court then provided a breach of contract instruction, 

jury instruction No. 11. The instruction provided, “For Jacobs 

to recover on its claim for breach of contract against ConAgra, 

Jacobs must prove, by the greater weight of the evidence . . . 

[t]hat ConAgra’s breach of contract was a proximate cause of 

some damage to Jacobs.” Jury instruction No. 12 stated, in 

part, “You must determine whether ConAgra owes a contractual duty to indemnify Jacobs for any amounts paid to settle 

the North Carolina lawsuits.” Thus, the court instructed the 

jury to consider whether ConAgra breached a contractual duty 

to indemnify Jacobs for claims, whether ConAgra’s breach 

was a proximate cause of damage to Jacobs, and whether 

ConAgra was responsible to Jacobs for amounts paid to settle 

the lawsuits.

The court also provided a general proximate cause instruction, jury instruction No. 14, which stated, “A proximate 

cause is a cause [that] produces a result in a natural and continuous sequence, and without which the result would not have 

occurred.” And, near the beginning of jury instruction No. 21, 

prior to the portion quoted by ConAgra, the court instructed 

the jury that “Jacobs is seeking as damages amounts it agreed 

to settle the claims of the North Carolina plaintiffs.”

77 See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
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Although in isolated parts of the instructions the district 

court could have more precisely stated that under subsection 10.2, Jacobs sought to prove that ConAgra’s negligence 

caused the settlements rather than the North Carolina plaintiffs’ 

personal injuries, we certainly cannot say the failure to do 

so under the circumstances of this case impacted the fairness 

of trial. As noted, the scope of the indemnification provision 

under subsection 10.2 includes claims and damages, in addition 

to losses. All of the claims in this case were for injuries caused 

by the explosion, ConAgra was liable for claims under the 

indemnity provision, the court made the jury aware that Jacobs 

was seeking damages based on the settlement figures, and the 

court provided proximate cause instructions. Taken together as 

a whole, the instructions asked the jury to determine whether 

ConAgra proximately caused Jacobs’ settlements.

ConAgra’s request for an efficient intervening cause instruction was not supported by the evidence. An efficient intervening cause is the new and independent conduct of a third person, which itself is a proximate cause of the injury in question 

and breaks the causal connection between the original conduct 

and the injury.78 The evidence showed the North Carolina 

plaintiffs brought their claims against Jacobs as a result of 

the explosion.

ConAgra criticized the outcome of the Brockington trial 

and sought to argue that the settlement was caused by the 

performance of defense counsel. We agree with the district 

court which rejected this argument by stating that the misconduct of Jacobs’ attorney in the Brockington lawsuit “in 

no way intervened to cause the injuries resulting from the 

[e]xplosion at the Garner Plant.” And, even taking ConAgra’s 

argument at face value, ConAgra failed to prove prejudice, 

because it never argued what the amount of the Brockington

settlement would have been had the misconduct not occurred. 

ConAgra never provided what it claimed to be the appropriate settlement value and, in fact, told the jury during closing 

78 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).
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argument that the value could be $14.4 million, $17.7 million, 

or $20 million.

Jacobs established a triable issue that ConAgra caused 

Jacobs’ claims, losses, and damages. The evidence did not 

support the use of an efficient intervening cause instruction 

regarding performance of defense counsel at trial. ConAgra 

was not prejudiced. This argument is without merit.

(b) Jacobs Established Triable Issue That 

Its Claims, Losses, or Damages Were 

Caused by ConAgra or Someone 

Under ConAgra’s Control

ConAgra raises three additional arguments which claim that 

it cannot be held liable for the explosion as a matter of law. 

First, ConAgra argues that it did not cause Jacobs’ claims, 

losses, or damages, because Poppe’s removal of the cap on the 

2-inch gasline broke the causal chain between ConAgra and 

the explosion as a matter of law. Second, ConAgra argues that 

Poppe and ESA were not under ConAgra’s control, and relatedly, third, that the indemnification provision is inapplicable 

under the circumstances of this case.

Jacobs contends that sufficient evidence was presented that 

ConAgra’s employees knew of the significant danger posed by 

Poppe’s action, but did nothing to stop him. In addition, Jacobs 

contends that there was sufficient evidence submitted to the 

jury of ConAgra’s control over Poppe and ESA. In the alternative, Jacobs contends that ConAgra had a nondelegable duty to 

protect its employees with a safe working environment free of 

deadly hazards.

We agree with Jacobs that there was sufficient evidence to 

support the jury’s determination that Poppe’s actions did not 

breach the causal chain as a matter of law. In addition, we find 

there was evidence supporting the jury’s determination that 

Poppe and ESA were under ConAgra’s control. With regard 

to the nondelegable duty doctrine, we note that this issue 

concerns an alternative and independent theory of ConAgra’s 

liability based on negligence at common law, and we agree 
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with the statement from ConAgra’s brief that “[t]here is no 

basis for reading this contract to require [common-law tort] 

liability.”79 However, we conclude there is evidence to support 

the contract theory.

(i) There Was Evidence to Support Jury’s Finding 

ConAgra’s Negligence Was Proximate 

Cause of Jacobs’ Damages

[34,35] A party is only answerable for the natural, probable, 

reasonable, and proximate consequences of his acts; and where 

some new efficient cause intervenes, not set in motion by him, 

and not connected with but independent of his acts and not 

flowing therefrom, and not reasonably in the nature of things to 

be contemplated or foreseen by him, and produced the injury, it 

is the dominant cause.80 Because the extent of foreseeable risk 

depends on the specific facts of the case, courts should leave 

such determinations to the trier of fact unless no reasonable 

person could differ on the matter.81

[36] A civil verdict will not be set aside where evidence is in 

conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury’s province to decide 

issues of fact.82

The district court found “there [was] evidence that ConAgra 

employees knew of the significant dangers posed by . . . 

Poppe’s action, and did nothing to stop him” and that its 

judgment should not be substituted for the jury’s. We have 

the same view. There was competent evidence to sustain the 

jury’s determination that ConAgra was a proximate cause of 

Jacobs’ damages.

Even if Poppe’s decision to unscrew the cap to the 2-inch 

line was “crazy” and was the final act prior to the explosion, 

79 Brief for appellant at 50.

80 Welsh v. Zuck, 192 Neb. 1, 218 N.W.2d 236 (1974).

81 See, Pittman v. Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016); A.W. v. 

Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010).

82 InterCall, Inc., supra note 75.
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there was evidence to support a jury finding that Poppe’s 

decision was either (1) set in motion by ConAgra’s negligence or (2) was connected with or flowed from ConAgra’s 

negligence, and was not independent thereof. The evidence 

showed that ConAgra breached the standard of care in the 

planning and execution of its water heater project and that 

Poppe’s actions occurred because of a series of errors committed by ConAgra.

ConAgra’s worksite hazard assessment plan described the 

line-break procedure and the need to address the risk of 

explosion. Puff was responsible for the line-break procedure, but did not follow the written procedure and did not 

train Poppe in the procedure resulting in the gasline to the 

water heater’s not being purged prior to the commissioning. ConAgra allowed Poppe to attempt to light the water 

heater for 31⁄2 hours, even after ConAgra employees witnessed 

Poppe crack the pilotline and release gas into the room. Puff 

smelled gas and did not tell Poppe that the line had not been 

purged, and he allowed Poppe to continue to purge inside 

even though Puff had been trained to purge outdoors and had 

already purged one of the lines outdoors 5 days prior. Puff 

testified that the gas smell eventually grew stronger and that 

he temporarily stopped Poppe from working due to his concern about whether the gas meter was functioning properly. 

Puff left the scene and admitted that he should not have left 

Poppe unsupervised. Puff admitted he would not have allowed 

Poppe to open the cap on the gasline if he had stayed. Had 

Puff purged the line on June 4, 2009, the explosion may have 

been avoided.

In addition, an SPA was never created for ConAgra’s water 

heater, and ConAgra admitted that, if implemented, an SPA 

would have prevented Poppe from venting in the pumproom, 

and thus prevented the explosion. Further, ConAgra failed to 

comply with the fire prevention plan, which prohibited the 

handling of natural gas “where vapors are prevented from 

reaching ignition sources.”
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[37] Even if the jury determined that Poppe’s decision 

to remove the gas cap was a proximate cause of the explosion, the record supports the verdict, because Jacobs had to 

show that ConAgra was only a proximate cause of Jacobs’ 

damages, and not the sole proximate cause. Jury instruction 

No. 11, discussed above, stated that Jacobs was required to 

prove that “ConAgra’s breach of contract was a proximate 

cause of some damage to Jacobs.” (Emphasis supplied.) Even 

ConAgra’s refused instruction stated that Jacobs must prove 

that “ConAgra’s negligence was a proximate cause of Jacobs’ 

losses.” (Emphasis supplied.) Where separate and independent 

acts of negligence by different persons combine to produce 

a single injury, each participant is liable for the damage, 

although one of them alone could not have caused the result.83

The record provided the jury a sufficient basis from which to 

conclude that Poppe’s decision to remove the gas cap was not 

the single, independent cause of Jacobs’ damages. ConAgra’s 

argument that Poppe broke the causal chain as a matter of law 

is without merit.

(ii) Jacobs Established Triable Issue 

Regarding ConAgra’s Control 

of ESA Under Contract

ConAgra asserts that it did not exercise control over ESA, 

an independent contractor, and was entitled to a directed verdict based on this issue. As noted above, ConAgra asserted that 

the contract does not incorporate common-law nondelegable 

duties. ConAgra also argues that as a matter of law, Jacobs’ 

claims did not satisfy the general rule discussed in Gayton v. 

Wal-Mart 84 that “one who employs an independent contractor 

is not liable for physical harm caused to another by the acts or 

omissions of the contractor or its servants.”

Jacobs argues that ConAgra had control over ESA’s ability to purge the gasline and that Puff and Roberson exercised 

83 Sacco v. Carothers, 253 Neb. 9, 567 N.W.2d 299 (1997).

84 Gaytan v. Wal-Mart, 289 Neb. 49, 57, 853 N.W.2d 181, 192 (2014).
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control over Poppe’s work. Jacobs further argues that sufficient evidence was presented to satisfy the three-part test 

from Gaytan to establish that ConAgra had control over Poppe 

and ESA.

In Gaytan, we held that in order to impose liability on a 

general contractor for injury to a subcontractor’s employee, 

the general contractor must have (1) supervised the work that 

caused the injury to the employee, (2) actual or constructive 

knowledge of the danger which ultimately caused the injury, 

and (3) the opportunity to prevent the injury.

On the question of ConAgra’s “control” of ESA, we give 

primary consideration to Jacobs’ contract theory. Under Jacobs’ 

theory of contractual indemnification, we interpret the contractual term “under [ConAgra’s] control” according to its 

plain meaning and context. “Control” is defined as “the power 

or authority to manage, direct, or oversee.”85 To the extent 

ConAgra’s arguments can be interpreted as claiming that it did 

not exercise authority over ESA, we reject those arguments 

based on the record in this case.

Drawing every reasonable inference from the evidence in 

Jacobs’ favor, there was evidence that Puff and his team had 

control over the line-break procedure and the purging of the 

natural gasline and that ConAgra should have required ESA to 

follow this procedure to comply with industry standards. There 

was evidence that in accordance with ConAgra policy, Puff 

and Roberson supervised Poppe’s work and had the ability to 

train and instruct Poppe and stop his work if needed. There 

was also evidence that ConAgra knew Poppe was releasing 

gas into an enclosed room, that Roberson brought unrated 

temporary lighting into the room, and that ConAgra could 

have had Poppe purge outside, discontinue the commissioning 

based on an inoperative gas meter, or evacuate the building. 

Thus, there was competent evidence that ConAgra exercised 

supervisory authority over ESA, that ConAgra had actual or 

85 Black’s Law Dictionary 403 (10th ed. 2014).
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constructive knowledge of the danger which ultimately caused 

the injuries, and that ConAgra had the opportunity to prevent 

the injuries. Therefore, ESA was under ConAgra’s control 

within the meaning of the indemnification provision. This 

assignment of error is without merit.

4. Court Did Not Err in Decli

Reduce Jury’s Award of Da

ConAgra assigns error to the trial court’s decision not to 

reduce the amount of damages awarded by the jury. ConAgra 

argues that we should reduce the judgment by the amount of 

the Brockington settlement, because the $17.7 million figure 

was arbitrary.

[38-40] The amount of damages to be awarded is a determination solely for the fact finder, and the fact finder’s decision will not be disturbed on appeal if it is supported by the 

evidence and bears a reasonable relationship to the elements of 

the damages proved.86 The law is well established that where a 

verdict is excessive, but not so much as to indicate passion or 

prejudice on the part of the jury, the error may be corrected by 

remittitur, if the excess can be estimated with reasonable certainty.87 A request for remittitur is generally made in lieu of a 

request for a new trial.88 An appellate court should order remittitur only when the award is contrary to all reason.89

ConAgra argues there was no evidentiary basis upon which 

a jury could value the Brockington settlement at $17.7 million. 

However, Jacobs’ expert, a North Carolina trial lawyer with 

over 40 years of experience, testified that the $17.7 million 

86 Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 

433 (2010).

87 Barbour v. Jenson Commercial Distributing Co., 212 Neb. 512, 323 

N.W.2d 824 (1982).

88 See, Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 

270 (1990); Barbour, supra note 87; Pearse v. Loup River Public Power 

District, 137 Neb. 611, 290 N.W. 474 (1940).

89 Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).
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figure represented the amount of the first verdict, $14.6 million, plus prejudgment interest under North Carolina law. He 

compared the settlement amounts to what would be fair compensation for the injuries suffered and opined that the settlement amounts were objectively reasonable.

Jacobs’ expert witness’ opinion was based on an objective 10-factor analysis, which considered: venue, nature and 

magnitude of disaster, horrific nature of the injuries, ratio of 

demands to settlements, target defendants, ConAgra’s exposure, and comparable verdicts and settlements. In demonstrating the objective reasonableness of the Brockington settlement, 

he testified that the Brockington venue was “plaintiff-friendly” 

and that Jacobs was a target defendant as an out-of-state “faceless” corporation with deep pockets. He stated the settlement 

demand for the Brockington case was $25 million before the 

first and second trials.

The expert witness described the horrific nature of the injuries at issue in the Brockington case, which involved seven 

plaintiffs. The severe nature of the plaintiffs’ injuries included 

burns to the face and upper torso and legs; the insertion of a 

metal plate to repair musculoskeletal injuries; temporary blindness and paralysis; a traumatic brain injury; and neck, spine, 

and knee surgeries.

The jury’s decision was supported by evidence and bore 

a reasonable relationship to the damages proved. As already 

noted, ConAgra did not actually specify to the jury the amount 

to award for the Brockington settlement. We cannot conclude 

that the jury’s verdict was contrary to all reason, and we therefore decline to alter the amount of damages awarded.

V. CONCLUSION

For the reasons set forth herein, we find no merit to 

ConAgra’s assignments of errors and affirm the judgment of 

the district court.

Affirm

Kelch, J., not participating in the decisio

Wright, J., not participating