                        IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                       CITY OF LINCOLN V. DIAL REALTY DEVELOPMENT


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


            CITY OF LINCOLN, NEBRASKA, A MUNICIPAL CORPORATION, APPELLANT,
                                               V.

         DIAL REALTY DEVELOPMENT, A NEBRASKA CORPORATION, ET AL., APPELLEES.


                          Filed September 29, 2015.   No. A-14-1138.


       Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Affirmed.
       Jeffrey R. Kirkpatrick, Lincoln City Attorney, and Timothy S. Sieh for appellant.
       David L. Welch and Kellie Chesire Olson, of Pansing, Hogan, Ernst & Bachman, L.L.P.,
for appellee Dial Realty Development.
       Robert S. Keith, of Engles, Ketcham, Olson & Keith, P.C., for appellee Hawkins
Construction Company.
       Stephen L. Ahl and Nathan D. Anderson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P.,
for appellees Charter Oak Fire Insurance Company and Travelers Property Casualty Company of
America.


       IRWIN, INBODY, and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                      INTRODUCTION
       The City of Lincoln (City) brought this declaratory judgment action against Dial Realty
Development (Dial), Hawkins Construction Company (Hawkins), Charter Oak Fire Insurance
Company (Charter Oak), Travelers Property Casualty Company of America (Travelers), and
Zurich American Insurance Company (Zurich). Each defendant moved for summary judgment and



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all of the motions were granted. The City appeals the entry of summary judgment in favor of Dial
and Hawkins. We find no merit to the City’s arguments on appeal and therefore affirm.
                                         BACKGROUND
        The factual basis underlying this action relates to a construction project and is undisputed.
Dial is a real estate development company. Dial is not a contractor and does not do any
construction, paving, or installation on a project. At all relevant times, Dial was insured under two
policies: a general liability policy issued by Charter Oak and an umbrella policy from Travelers.
Hawkins is a corporation engaged in the construction business. At all relevant times, Hawkins was
insured under a commercial general liability policy issued by Zurich.
        On January 31, 2007, under Executive Order No. 78340, the City approved Dial’s request
“to construct Paving of Amaranth Lane . . .” The executive order defined Dial as the project’s
“Permittee” and noted that Dial, as Permittee, would have the work completed by its own
“Contractor.” Dial executed an unqualified written acceptance of the terms of the executive order.
        The executive order incorporated by reference the “2006 City of Lincoln Standard
Specifications for Municipal Construction with the 2006 Supplemental Specifications” (Standard
Specifications) and the “General Conditions and General Specifications Applying to Private
Construction of Public Facilities” (General Conditions). It further provided that Dial, as “Permittee
shall comply with the same, including the filing with the City Engineer of the Certificate of
Insurance and the executed Performance and Labor and Material Payment Bonds required
thereby.”
        The General Conditions incorporate the “Insurance Requirements for All City Contracts”
(Insurance Requirements). The City’s Insurance Requirements state that the Contractor is required
to purchase insurance, prior to commencing work, and maintain insurance with the specified
minimum limits to indemnify the City during the life of the contract, including any warranty
period. Specifically, the City’s Insurance Requirements provide:

       A. Scope of Required Coverage. The Contractor shall take out and maintain during the
       life of Contract such insurance in the forms and minimum amounts as specified in this
       Article and as will protect Contractor and City from the following claims arising out of or
       resulting from or in connection with the Contractor’s operations, undertakings or omissions
       directly or indirectly related to the Contract, whether by the Contractor or any
       Subcontractor . . . or by anyone for whose acts any of them may be liable: . . .
       (2) Claims arising out of bodily injury . . .
       ....
       G. City included as Insured on Contractor’s Policy -- Endorsements required. The
       Contractor shall provide adequate written documentation . . . demonstrating that the City
       is included as an additional insured along with the Contractor with respect to all of the
       coverages required in this “Section 2A Insurance Requirements,” . . . to include all work
       performed for the City and specifically including, but not limited to, any liability caused
       or contributed to by the act, error, or omission of the Contractor, including any related
       subcontractors, third parties, agents, employees, officers or assigns of any of them. The
       documentation or endorsement shall specifically include the City as an additional insured


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       for purposes of Products and Completed Operations. The inclusion of the City as additional
       insured shall be for coverage only on a primary basis for liability coverage, and no coverage
       shall contain a policy or other restriction or attempt to provide restricted coverage for the
       City, whether on an excess, contributory or other basis regardless of any other insurance
       coverage available to the City.

         Dial entered into an agreement with Hawkins to perform the paving work on Amaranth
Lane pursuant to the executive order. The agreement listed Hawkins as the “Contractor” and Dial
as the “Owner.” Hawkins secured an insurance policy through Zurich and provided a certificate of
liability insurance identifying the City as an additional insured as evidence that insurance was in
place.
         Hawkins performed the work on Amaranth Lane and, in October 2007, the City inspected
Hawkins’ work, determined it was substantially complete, and opened the road to general traffic.
Later that month, the City determined the project was complete and met all the required
specifications.
         In June 2008, the City made a final inspection, provided its final approval, and officially
accepted Amaranth Lane. In December, Dial received correspondence from the City’s project
manager that the construction authorized by the executive order had been completed by Hawkins
generally in accordance with the City’s standard plans and specifications as required under Dial’s
executive order agreement.
         On May 6, 2009, a motorcycle was involved in an accident on Amaranth Lane, and the
passenger, Lycebeth Loy, sustained injuries. Loy filed suit against the City and the engineering
firm that developed the plans for Amaranth Lane (the “Loy Lawsuit”). As to the City, Loy
generally claimed it was negligent in authorizing defective design plans, signage, and insufficient
illumination. She made no allegations relating to the paving performed by Hawkins.
         The City notified Hawkins and its insurer, Zurich, as well as Dial and its insurers, Charter
Oak and Travelers, of the Loy Lawsuit and tendered its defense to the insurers. All insurers denied
coverage. The City ultimately entered into a settlement agreement with Loy, and Loy’s lawsuit
was dismissed with prejudice.
         On May 16, 2013, the City filed its complaint in this action, alleging that each defendant
owed a duty to defend and indemnify the City in the Loy Lawsuit. Each defendant moved for
summary judgment. The district court of Lancaster County granted all of the motions and
dismissed the action. The City timely appeals to this court.
                                   ASSIGNMENTS OF ERROR
        The City assigns that the district court erred in (1) interpreting the executive order as not
to require Dial to name the City as an additional insured on its insurance policy, (2) determining
that Hawkins satisfied its contractual duty to name the City as an additional insured, and (3) finding
that Hawkins is entitled to judgment as a matter of law regarding whether the Loy Lawsuit fell
outside the scope of insurance required by the City’s standard insurance provisions because it did
not arise out of Hawkins’ operations in constructing Amaranth Lane.




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                                    STANDARD OF REVIEW
        The interpretation of an insurance policy presents a question of law that we decide
independently of the trial court. Federated Service Ins. Co. v. Alliance Const., LLC, 282 Neb. 638,
805 N.W.2d 468 (2011). In reviewing a summary judgment, an appellate court views the evidence
in the light most favorable to the party against whom the court granted the judgment and gives
such party the benefit of all reasonable inferences deducible from the evidence. Id.
                                            ANALYSIS
Summary Judgment in Favor of Dial.
        Dial moved for summary judgment on the basis that the contract documents did not require
it to name the City as an additional insured. The district court agreed. On appeal, the City asserts
that the district court erred in interpreting the executive order as not to require Dial to name the
City as an additional insured on its insurance policy. The provision at issue is contained in
paragraph 7 of the executive order, which provides:

       7. The 2006 City of Lincoln Standard Specifications for Municipal Construction with the
       2006 Supplemental Specifications, and the General Conditions and General Specifications
       Applying to Private Construction of Public Facilities, are by reference hereby made a part
       of the conditions of this permit, and Permittee shall comply with the same, including the
       filing with the City Engineer of the Certificate of Insurance and the executed Performance
       and Labor and Material Payment Bonds required thereby.

        The City claims that the language requiring the Permittee to “comply with the same, . . .
including the filing . . . of the Certificate of Insurance” requires that Dial, as Permittee, name the
City as an additional insured on its insurance policy as well as requiring that Hawkins do so. We
do not agree with the City’s interpretation.
        Insurance contracts, like other contracts, are construed according to the meaning of the
terms that the parties have used. See Federated Serv. Ins. Co. v. Alliance Const., supra. When the
terms of an insurance contract are clear, we give them their plain and ordinary meaning as a
reasonable person in the insured's position would understand them. Id.
        The executive order requires Dial to file the certificate of insurance and the executed
performance and labor and material payment bonds required by the Specifications which
incorporate the Insurance Requirements. The Insurance Requirements only require that the
Contractor obtain insurance and file the certificate of insurance. The term “Contractor” is
consistently used to define Hawkins. The executive order provides that Dial will have the work
performed by its own Contractor, and the agreement between Dial and Hawkins lists Hawkins as
the “Contractor.” Accordingly, only Hawkins, as the Contractor, was required to name the City as
an additional insured on its insurance policy, and thus, the district court did not err in granting
Dial’s motion for summary judgment.




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Summary Judgment in Favor of Hawkins.
        Hawkins moved for summary judgment arguing that it complied with its contractual duty
to name the City as an additional insured, but that it was not required to insure the City for the
claims made in the Loy Lawsuit. The district court agreed. On appeal, the City claims that the
court erred in finding that Hawkins satisfied its contractual duty to name the City as an additional
insured and that the Loy Lawsuit did not arise out of Hawkins’ operations in constructing
Amaranth Lane. We disagree.
        With respect to its first argument, the City specifically contends that Hawkins’ contractual
obligation to name the City as an additional insured required Hawkins to obtain coverage that
included defense and indemnification for the City’s own acts of negligence, not just the negligence
of Hawkins or those working on its behalf. To support its argument, the City relies on Federated
Service Ins. Co. v. Alliance Constr. LLC, 282 Neb. 638, 805 N.W.2d 468 (2011).
        In Federated, as part of a subcontract, the subcontractor agreed to make the contractor an
additional insured on its insurance policies. The subcontractor’s policy included an “Additional
Insured by Contract Endorsement,” which provided, “‘Coverage shall not exceed the terms and
conditions that are required by the terms of the written agreement to add any insured, or to procure
insurance.’” Federated, 282 Neb. at 645, 805 N.W.2d at 475. When an employee of the
subcontractor was injured on the jobsite and filed suit, the subcontractor’s insurer sought a
declaratory judgment that it had no duty to defend or indemnify the contractor in the employee’s
personal injury action. The trial court granted summary judgment for the insurer, finding that the
contractor was not entitled to additional insured coverage under the endorsement because such
coverage was limited by the requirements of the subcontract, and the subcontract did not contain
express language requiring the subcontractor to insure the contractor’s own negligence.
        The contractor appealed, and the Supreme Court reversed, concluding that a requirement
in the underlying contract that the subcontractor make the contractor an additional insured on the
subcontractor’s commercial general liability coverage unequivocally showed that the parties
intended the subcontractor to insure against the contractor’s own negligence. In so holding, the
Supreme Court distinguished the language of the subcontract from the language of the contract at
issue in Anderson v. Nashua Corp., 251 Neb. 833, 560 N.W.2d 446 (1997). The Supreme Court
observed that the contractual provision at issue in Anderson was significantly different from the
requirement in Federated that a subordinate party make a promisee an additional insured on its
insurance policy.
        The factual background of Anderson is similar to that in Federated, but in Anderson, the
contract required the contractor to carry specified coverages that would protect the contractor and
property owner “‘from all risks and from any claims that may arise out of or pertain to the
performance of such work or services . . . .’” Anderson, 251 Neb. at 835, 560 N.W.2d at 448
(emphasis omitted). The Supreme Court concluded that this clause did not contain express
language requiring the contractor to provide insurance to cover loss caused by the property owner’s
negligence. The court further concluded that the same clause did not contain clear and unequivocal
language that the parties intended the contractor to insure the owner against its own negligence.
Thus it implicitly concluded that that coverage for claims that arose out of the contractor’s work
did not clearly require the contractor to insure against the property owner’s own negligence. The



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court did not interpret the “arise out of” language to clearly include the property owner’s
negligence that would not have occurred but for the contractor’s work on the property.
        Just as in Federated where the Supreme Court distinguished Anderson based upon the
language of the contract, we, too, look to the language of the contract documents to determine the
extent of the insurance requirement. Under the Insurance Requirements, Hawkins was required to

       take out and maintain during the life of Contract such insurance in the forms and minimum
       amounts as specified in this Article and as will protect [Hawkins] and City from the
       following claims arising out of or resulting from or in connection with [Hawkins’]
       operations, undertakings or omissions directly or indirectly related to the Contract,
       whether by [Hawkins] or any Subcontractor or anyone directly or indirectly employed by
       any of them, or by anyone for whose acts any of them may be liable: . . .

(Emphasis supplied.)
         The requirement here is more similar to that in Anderson because although the Insurance
Requirements mandated that Hawkins name the City as an additional insured, it was limited to
claims arising out of Hawkins’ work under the executive order. When we look to Loy’s operative
complaint, the allegations against the City arise out of lighting, road markings, and signage, none
of which were part of Hawkins’ responsibilities. Therefore, although Hawkins was required to
insure the City for its own negligence for claims made against it arising out of Hawkins’ work,
Hawkins was not required to insure the City for its own negligence arising out of work in which
Hawkins was not involved. As in Anderson, the phrase “arising out of” applies only to the work
Hawkins agreed to perform, which consisted solely of paving Amaranth Lane. Consequently, the
district court did not err in finding that Hawkins was entitled to summary judgment.
         Finally, the City argues that the district court erred in concluding that no genuine issue of
material fact existed regarding whether the Loy Lawsuit fell outside the scope of insurance
required by the City’s Insurance Requirements because it did not arise out of Hawkins’ operations
in constructing Amaranth Lane. We find no merit to this argument.
         Summary judgment is proper only when the pleadings, depositions, admissions,
stipulations, and affidavits in the record disclose that there is no genuine issue as to any material
fact or as to the ultimate inferences that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Anderson v. Nashua Corp., 251 Neb. 833, 560 N.W.2d
446 (1997). The construction of a contract is a matter of law. Id.
         As discussed above, the Nebraska Supreme Court has held that, in general, when an
agreement requires that a subcontractor name a contractor as an additional insured, the
subcontractor is required to insure against the contractor’s own negligence. See Federated Service
Ins. Co. v. Alliance Constr. LLC, 282 Neb. 638, 805 N.W.2d 468 (2011). Under the terms of the
Insurance Requirements here, Hawkins was obligated to name the City as an additional insured,
but was only required to protect the City from claims “arising out of” Hawkins’ “operations,
undertakings, or omissions” relating to the executive order. The work that Hawkins performed was
paving Amaranth Lane, and the allegations contained in the Loy Lawsuit did not arise out of the
paving work. The Loy Lawsuit alleged that the City was negligent with respect to defective design
plans, signage, and insufficient illumination. Thus, the allegations contained in the Loy Lawsuit


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fell outside the scope of Hawkins’ work. Interpreting the phrase “arising out of” more broadly so
as to include claims not related to any work Hawkins performed would be inconsistent with
Nebraska law, which requires that contract language be read as a whole and given a reasonable
interpretation, not an interpretation that would produce absurd results. See State v. Peterson, 280
Neb. 641, 788 N.W.2d 560 (2010). We therefore find no error in the district court’s conclusion
that no genuine issue of material fact existed with respect to this issue, and that Hawkins was
entitled to judgment as a matter of law.
                                         CONCLUSION
      We find that the district court did not err in entering summary judgment in favor of Dial
and Hawkins. We therefore affirm.
                                                                                    AFFIRMED.




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