                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                         TRAVELERS INDEM. CO. V. GONZALEZ CONSTR.


  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).


                        TRAVELERS INDEMNITY COMPANY, APPELLANT,
                                               V.

                          GONZALEZ CONSTRUCTION, INC., APPELLEE.


                           Filed September 3, 2019.   No. A-18-249.


       Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed.
       CeCelia C. Ibson, of Ibson Law Firm, for appellant.
      Robert J. Kirby and Steven G. Ranum, of Croker, Huck, Kasher, DeWitt, Anderson &
Gonderinger, L.L.C., for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
        Travelers Indemnity Company (Travelers) appeals from the order of the district court for
Sarpy County, granting partial summary judgment in favor of Gonzalez Construction, Inc.
(Gonzalez Construction), and denying Travelers’ motion for summary judgment. For the reasons
set forth herein, we affirm.
                                       BACKGROUND
       Travelers is an insurance company authorized to do business in Nebraska with its principal
place of business in Hartford, Connecticut. Pursuant to a contract with the State of Nebraska,
Travelers is the contract insurer for the Nebraska Workers’ Compensation Plan (the plan). The
plan, established under Neb. Rev. Stat. § 44-3,158 (Reissue 2010), gives the Director of the
Nebraska Department of Insurance authority to enter into an agreement with one or more workers’



                                              -1-
compensation insurers to provide workers’ compensation insurance to assigned risk employers.
“Assigned risk employer means a Nebraska employer that is in good faith entitled to, but is unable
to obtain, workers compensation insurance through ordinary methods.” § 44-3,158(1). Travelers’
relationship with the State as the contract insurer for the plan is memorialized in the plan
agreement.
         The plan agreement includes rules for eligibility, the application process, and resolution of
disputes as to premiums and other matters. According to the plan agreement, a producer (i.e.,
properly licensed insurance professional) is responsible for forwarding a completed application
form (ACORD application) to the contract insurer with an employer’s or producer’s check payable
to the contract insurer “for the estimated annual or deposit premium.” Coverage is bound only after
receipt of a complete signed application and the appropriate deposit or initial premium.
         Gonzalez Construction is a Nebraska corporation with its principal place of business in
Omaha, Nebraska. Julio C. Gonzalez (Julio) is the president and owner of Gonzalez Construction.
Julio applied for workers’ compensation insurance with Travelers through the plan, provided
certain information on the ACORD application, and paid $750 as a deposit premium. The
“APPLICANT NAME” shown on the application form is “JULIO C. GONZALEZ.” On the
portion of the form containing check boxes to mark whether the applicant is an “INDIVIDUAL,”
“PARTNERSHIP,” “CORPORATION,” “SUBCHAPTER ‘S’ CORP,” or “LLC,” an “X” is
marked next to the designation of “INDIVIDUAL.” On the application, Julio did not affirmatively
indicate that he had any employees or subcontractors and marked “NO” in response to various
questions about employees and subcontractors. There is a section of the application for
“INDIVIDUALS INCLUDED/EXCLUDED,” which provides spaces for the applicant to fill-in
information about “PARTNERS, OFFICERS, RELATIVES TO BE INCLUDED OR
EXCLUDED.” The only individual listed in this section is Julio who is identified as the owner of
100 percent of the operation with duties of “DRYWALL CONSTRUCTION” and remuneration
of “30,000.” Under the space in this section to identify whether the individuals listed are
“INC/EXC,” Julio is marked “E.”
         Travelers issued a policy of workers’ compensation insurance (the policy) to Julio for the
policy period of October 22, 2009 to October 22, 2010. The named insured was Julio, and the
policy indicates that “Insured is AN INDIVIDUAL.” Part five of the policy contains provisions
with respect to premium and in paragraph A states, “All premium for this policy will be determined
by our manuals of rules, rates, rating plans and classifications.” Part five, paragraph E, under the
title “Final Premium,” provides that “[t]he premium shown on the Information Page, schedules,
and endorsements is an estimate.” This provision further explains that “[t]he final premium will
be determined after this policy ends by using the actual, not the estimated, premium basis and the
proper classifications and rates that lawfully apply to the business and work covered by this
policy.” The policy also contains provisions giving Travelers the authority to perform audits to
determine the correct premium to be charged. Part five, paragraph G, under the title “Audit,” states
that “[y]ou [Julio] will let us examine and audit all your records that relate to this policy” and
“[w]e [Travelers] may conduct the audits during regular business hours during the policy period
and within three years after the policy period ends.” This paragraph further explains that the
“[i]nformation developed by audit will be used to determine final premium.”



                                                -2-
        Travelers sent a “Supplementary Underwriting Information Request,” dated November 13,
2009, to Regency Insurance, the producer for the policy, asking certain information about the
insured, i.e., Julio. Specifically, Travelers asked for “a completed detailed description of the
insured[’]s operations” and verification of the correct “entity name and entity type” for the insured
(i.e. whether the insured entity was “Gonzalez, Julio C dba Gonzalez Construction,” a “Sole
Proprietor/Individual,” or whether the insured entity was “Gonzalez Construction Inc[.],” a
corporation. Travelers also requested the provision of tax returns and specifically asked what
relationship the insured had with “Gonzalez Construction Inc.”
        On December 1, 2009, Travelers received correspondence in response to the request for
supplementary information. This unsigned correspondence indicated that Julio had incorporated
his business in 2007 and that he was the sole shareholder and only employee of Gonzalez
Construction, an S corporation, which was in the business of drywall installation. Attached to the
communication was a corporate tax return for Gonzalez Construction, showing that the company
had $371,793 in subcontract labor during the 2008 tax year.
        After receipt of this information, Travelers unilaterally changed the name of the insured on
the policy. The copy of the policy in the record includes certain documents issued on December
11, 2009. There is a “CHANGE DOCUMENT” page, reflecting the insured’s name of
“GONZALEZ CONSTRUCTION, INC.” The change document page states, “This change is
issued by the Company or Companies that issued the policy and forms a part of the policy. It is
agreed that the policy is amended as follows.” The page states, “The absence of an entry in the
premium spaces below means that the premium adjustment, if any, will be made at time of audit.”
No dollar amounts are reflected on that portion of the page. The page also states, “THIS POLICY
CHANGE WAS PROCESSED PER A REQUEST RECEIVED FROM YOU OR YOUR
PRODUCER.” There are also two “POLICY INFORMATION PAGE ENDORSEMENT”
documents, one of which states that “[t]he Insured’s Name is changed to read: GONZALEZ
CONSTRUCTION, INC.” and another which states that “[t]he Insured’s Legal Status is changed
to read: A CORPORATION.”
        On April 22, 2010, Travelers wrote a letter to Gonzalez Construction, stating:
                Our records indicate that you operate a contracting business. To gain a better
        understanding of your business the enclosed questionnaire needs to be completed and
        returned to my attention.
                Please note that the payroll for uninsured subcontractors will be included in your
        premium basis unless you provide evidence that the subcontractor is not subject to state
        workers compensation statutes and that all appropriate forms have been completed and
        filed with the state and with our office.

A questionnaire included with the letter stated, “Please note that payroll for uninsured Sub
contractors will be included in your premium basis if you can not [sic] provide evidence of a valid
workers’ compensation insurance certificate.”
       On June 14, 2010, Travelers wrote to the producer for the policy, via fax, stating:
               Per our conversation today, we spoke about the $371,793 in subcontract labor listed
       on the insured’s 2008 1120 tax form. I informed you that if the insured’s contract labor



                                                -3-
       does not have their own workers compensation policies or are independent contractors, we
       should be picking up the payroll on his workers compensation policy.
               The insured will need to collect certificates of insurance from the contract labor
       that show they have their own workers compensation insurance coverage or be deemed
       independent.

        Gonzalez Construction’s accountant completed a “POLICYHOLDER AUDIT REPORT,”
which was returned to Travelers in November 2010. The report indicates that Gonzalez
Construction is in the business of drywall installation and has no employees other than Julio. In
the section of the report for “NON-EMPLOYEE LABOR,” there is a checkmark in the box next
to “Yes” in response to the inquiry, “Did you use anyone other than an employee to perform work,
or a portion of a job, on your behalf?” A subcontractor worksheet included in the report lists eight
individuals along with one business. Insurance policy information is given for each subcontractor
on the worksheet, but the coverages listed are identified as “General Liability” and not “Work
Comp.”
        On December 29, 2010, Travelers issued a premium adjustment notice to Gonzalez
Construction in the amount of $56,620. On January 3, 2011, Travelers issued a bill to Gonzalez
Construction for $55,870 (the amount of the adjusted premium less the $750 deposit).
        On January 25, 2011, the attorney for Gonzalez Construction responded:
                As you are aware the Policy has been terminated, Mr. Gonzalez has already paid
        the premium of $750.00 for the Policy, and no claims have been made on the Policy.
                Gonzalez Construction has no employees other than Julio Gonzalez, the sole
        shareholder of the company. As Gonzalez Construction indicated, the individuals whose
        names were provided to you are independent contractors. . . . The relationship of the parties
        [Gonzalez Construction and the subcontractors] is clearly established by the agreement
        between [them] and each subcontractor is responsible for his own liability and workman’s
        compensation insurance. Travelers’ attempt to classify these independent contractors as
        employees is unwarranted.
                Additionally, your agent represented that the premium of $750.00 covered the
        insurance needs of Gonzalez Construction. . . .

       On February 4, 2011, Travelers responded to the attorney’s communication, stating:
       Our analyst contacted the accountant [for Gonzalez Construction] (who provided the audit
       information) . . . to request additional information to prove the independence of the contract
       labor. We did not receive with the audit file any certificates of insurance, invoices, or any
       other documentation to help determine if the contract labor is truly independent of our
       insured. The labor done by the workers is exactly the same as our insured’s operations. If
       the contract laborers can provide certificates of insurance or other documentation to prove
       their independence, we will be able to review the audit through our dispute. Please forward
       additional information you may have. At this time, we are unable to put this into dispute
       because we don’t have any back up information.




                                                -4-
         The attorney for Gonzalez Construction sent three more letters disputing the debt dated
March 3 and 11 and April 13, 2011.
         In August 2014, Travelers filed a complaint against Gonzalez Construction for breach of
contract, seeking damages in the amount of $56,620 plus costs. Gonzalez Construction answered,
generally denying the material allegations of Travelers’ complaint, including Travelers’ assertion
that there was a contract between the parties, and setting forth various affirmative defenses.
Gonzalez Construction also set forth counterclaims, alleging breach of implied duty of good faith
and fair dealing, fraudulent misrepresentation, violation of the Nebraska Consumer Protection Act,
and bad faith.
         In February 2017, Gonzalez Construction filed a motion for partial summary judgment
with respect to Travelers’ complaint. Subsequently, Travelers filed a motion for summary
judgment with respect to both its complaint and Gonzalez Construction’s counterclaims.
         On March 6, 2017, the district court heard the parties’ motions for summary judgment. The
court heard argument and received exhibits, including copies of the insurance application and
policy at issue, correspondence between the parties, the deposition of Myran Collier, an employee
of Travelers, and an affidavit from Julio. We have set forth relevant details of the insurance
application and policy and the parties’ correspondence above. Additional information found in the
deposition and affidavit are detailed below.
         Collier, an account manager underwriter for Travelers, testified by deposition. Collier
reviewed Julio’s workers’ compensation insurance application for the underwriting of the policy
at issue. According to Collier, $750 was the minimum premium charge for a policy in Nebraska at
the time, and the producer who submitted the application would have put the minimum premium
on the application because it was sent “with zero payroll.” When Collier received the application,
she performed internet searches to verify the information on it. After performing these searches,
Collier found that “the application was submitted with the incorrect legal status and incorrect
applicant name.” This prompted Collier to send a request to the producer to verify the correct entity
type. Collier testified that “the application was submitted stating the insured was a sole
proprietorship,” but the information she received from the producer indicated that the insured is
actually “a corporation under the name of Gonzalez Construction, Inc.” Collier indicated that this
was the response that prompted a change of the insured to Gonzalez Construction. Collier made
the endorsement to the policy to correct the name. No signature is required for the endorsement.
         Collier admitted there was no consent received from Julio to change the name of the insured
from Julio to Gonzalez Construction, but she testified that the direction from the producer to
change the name of the insured was sufficient under Travelers’ policies.
         Collier reviewed a copy of the policy during her deposition and testified that “Julio
Gonzalez” was “the insured under the policy.” Collier was asked why the policy does not “include
a signature for the insured.” She testified that “the signature for the insured is on the application,”
and she confirmed upon further questioning that the insured never actually signs the policy. When
asked how the insured knows “what they’re agreeing to,” Collier replied, “That’s a conversation
that they should have with their producer.” She also confirmed that the insured agrees to the policy
by filling out a workers’ compensation application, and she agreed that the application in this case
“would have been the consent of the insured to the policy.”



                                                 -5-
        Collier testified about the various communications outlined above and about her efforts to
determine whether Gonzalez Construction’s subcontract labor (which had been shown in the 2008
tax forms) should be insured as employees under the policy. According to Collier, the subcontract
laborers would not be deemed employees if they had their own workers’ compensation insurance
or they were deemed independent contractors. Collier testified that Travelers’ position is that
subcontractors are employees until proven otherwise. Travelers was not provided any workers’
compensation policies for the subcontractors of Gonzalez Construction and they were therefore
considered employees under the policy and the premium was increased. Collier agreed that if the
subcontractors were independent contractors there would be no reason for the premium increase.
        In his affidavit, Julio confirmed that Gonzalez Construction has no employees, that he is
the sole officer of the company, and that he is the only one who can bind the company to any
contract. Julio stated that he “personally” purchased workers’ compensation insurance from
Travelers for the period of October 22, 2009 to October 22, 2010, that Gonzalez Construction was
not a party to any contract with Travelers, and that he never consented on behalf of the company
to be a party to the workers’ compensation policy at issue. He stated further that the policy he
purchased was meant to cover “only [him] personally upon the advice of the agent who sold [him]
the policy” and was purchased solely because it was needed for one general contractor that he was
trying to work with. He indicated that neither he nor the company had ever needed workers’
compensation insurance before or since applying for the policy. He confirmed that no claims had
ever been filed under the policy.
        According to Julio, the change in the name of the insured under the policy was done
unilaterally by Travelers without his knowledge or consent and without the company’s agreement
to be bound under the policy. Julio stated that Travelers misclassified Gonzalez Construction’s
independent contractors as employees, and he set forth information about the subcontractors and
their relationship with Gonzalez Construction. Specifically, he stated that the subcontractors are,
in fact, independent contractors, who sign independent contractor agreements with Gonzalez
Construction, are not required to work exclusively for the company, and are responsible for
maintaining their own workers’ compensation insurance.
        On April 11, 2017, the district court entered an order, granting Gonzalez Construction’s
motion for partial summary judgment and dismissing Travelers’ complaint. Specifically, the court
found “Julio C. Gonzalez, in his personal capacity,” applied for and obtained insurance from
Travelers and that Gonzalez Construction was “neither the entity that completed an application for
insurance, nor signed any document agreeing to be bound by the terms of the policy.” The court
also found that Travelers “unilaterally decided to amend the policy to change the name of the
insured” and that Travelers acknowledged that no consent had been obtained from Julio to make a
change to the name of the insured. The court concluded that Travelers could not establish that a
contract had ever existed between the parties that would give rise to the cause of action asserted in
the complaint. Finding no genuine issues of material fact with regard to this issue, the court granted
Gonzalez Construction’s motion for partial summary judgment. Because the court had already
found that Travelers’ complaint must be dismissed and because it found that genuine issues of fact
remained as to Gonzalez Construction’s counterclaims, it denied Travelers’ motion for summary
judgment in its entirety.



                                                -6-
        On February 27, 2018, the district court granted Gonzalez Construction’s motion to dismiss
its counterclaims without prejudice. Travelers then perfected its appeal to this court.
                                     ASSIGNMENTS OF ERROR
       Travelers asserts, consolidated and restated, that the district court erred in (1) finding that
no contract existed between the parties and (2) failing to grant Travelers’ motion for summary
judgment.
                                      STANDARD OF REVIEW
        An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any material facts or as to the
ultimate inferences that may be drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Meyer Natural Foods v. Greater Omaha Packing Co., 302 Neb. 509,
925 N.W.2d 39 (2019). In reviewing a summary judgment, the court views the evidence in the
light most favorable to the party against whom the judgment was granted and gives such party the
benefit of all reasonable inferences deducible from the evidence. Id.
        The meaning of a contract is a question of law, in connection with which an appellate court
has an obligation to reach its conclusions independently of the determinations made by the court
below. Id.
                                              ANALYSIS
Finding of No Contract.
           Travelers asserts the district court erred in finding that no contract existed between the
parties.
        An insurance policy is a contract between the insurance company and the insured, and an
appellate court construes it like any other contract, according to the meaning of the terms that the
parties have used. See Van Kleek v. Farmers Ins. Exch., 289 Neb. 730, 857 N.W.2d 297 (2014);
Mortgage Express v. Tudor Ins. Co., 278 Neb. 449, 771 N.W.2d 137 (2009). To create a contract,
there must be both an offer and an acceptance; there must also be a meeting of the minds or a
binding mutual understanding between the parties to the contract. Gibbons Ranches v. Bailey, 289
Neb. 949, 857 N.W.2d 808 (2015).
        A policy of insurance cannot be altered or modified without consent of the insured. Ruby
Coop. Co. v. Farmers Elevator Mut. Ins. Co., 197 Neb. 605, 250 N.W.2d 239 (1977). One party
to a contract may not substitute a third person in his stead without the consent of the other
contracting party. Carey v. Becker, 112 Neb. 115, 198 N.W. 877 (1924). Mutual assent by the
parties is required to modify a contract that substantially changes the liabilities of the parties. Solar
Motors v. First Nat. Bank of Chadron, 249 Neb. 758, 545 N.W.2d 714 (1996).
        Mutual assent to a contract is determined by the objective manifestations of intent by the
parties, not by their subjective statements of intent. Tilt-Up Concrete v. Star City/Federal, 255
Neb. 138, 582 N.W.2d 604 (1998). Acceptance of an offer may be illustrated by words, conduct,
or acquiescence indicating agreement and may be indicated by the silence and inaction of an




                                                  -7-
offeree. Id. However, silence, absent a duty to speak, does not form contracts. See Solar Motors,
supra (silence of contracting party to proposed modification leaves contract unmodified).
        The undisputed evidence in this case shows that Julio applied for and obtained a workers’
compensation insurance policy from Travelers, and he was listed as the insured on the policy.
Travelers later unilaterally changed the insured to Gonzalez Construction without the consent of
Julio to be eliminated as the insured under the policy or the consent of Gonzalez Construction to
be bound under the policy.
        Travelers argues that Gonzalez Construction acquiesced to the change making it the named
insured under the policy. Specifically, Travelers argues that between January 2011, when Travelers
billed Gonzalez Construction for the amount of the adjusted premium, and February 2017, when
Gonzalez Construction filed its motion for partial summary judgment, the only issue presented by
Gonzalez Construction as being disputed was Travelers’ inclusion of payroll associated with
workers Gonzalez Construction deemed independent contractors that Travelers used to calculate
premium. Travelers argues, “At no time, up until it filed its Motion for Summary Judgment, did
Gonzalez [Construction] so much as comment on, let alone object to, Travelers having (properly)
changed the named insured on the subject policy from Julio Gonzalez, sole proprietor, to Gonzalez
Construction, Inc., corporation.” Brief for appellant at 27. Elsewhere in its brief, Travelers argues
that “the very first time” Gonzalez Construction claimed it was not the insured under the policy
was in March 2017 when it served its brief in support of its motion for partial summary judgment.
Brief for appellant at 21. We disagree that this is evidence of mutual assent by either Julio or
Gonzalez Construction to the unilateral change of the insured name by Travelers. And, while the
record on appeal does not include a copy of the summary judgment brief referenced by Travelers,
Gonzalez Construction clearly denied in its answer that it entered into a contract with Travelers,
and Travelers has failed to prove otherwise.
        The dissent relies upon “Gonzalez Construction’s admission in its answer that it applied
for the workers’ compensation insurance at issue and paid the premium” to conclude that such
“judicial admission” “is conclusive as to the fact that Gonzalez Construction is the appropriate
entity who contracted with Travelers, and no evidence may be shown to contradict it.” While we
agree that judicial admissions may bind a party to the facts admitted, that rule of law is applicable
when the opposing party invokes the rule.
        “‘“A party may at any time invoke the language of the pleading of his adversary on which
        the case is tried on a particular issue as rendering certain facts indisputable; and in so doing
        he is neither required nor permitted to offer the pleading in evidence. . . . An admission
        made in a pleading on which the trial is had is more than an ordinary admission. It is a
        judicial admission and constitutes a waiver of all controversy so far as the adverse party
        desires to take advantage of it, and is therefore a limitation of the issues.”’”

Lange Building & Farm Supply, Inc. v. Open Circle “R”, Inc., 210 Neb. 201, 205, 313 N.W.2d
645, 648 (1981).
        We find no indication in the record that Travelers invoked this rule of law in the district
court. No objection was made to Julio’s affidavit raising the issue that Gonzalez Construction was
not a party to the contract when it was offered at the summary judgment hearing. Nor does



                                                 -8-
Travelers rely upon a “judicial admission” in its brief on appeal. The district court decided the
matter based upon the arguments and evidence presented at the summary judgment hearing. And
on appeal, an appellate court disposes of cases on the theory upon which it was tried. Palmtag v.
Gartner Constr. Co., 245 Neb. 405, 513 N.W.2d 495 (1994) (declining to analyze whether jury
should have been allowed to determine issue that was not raised by parties). Because Travelers did
not rely upon a “judicial admission” as a basis for denying Gonzalez Construction’s motion for
partial summary judgment, we reject the dissent’s argument that we should do so now.
         Travelers also argues that Gonzalez Construction and its subcontractors received the
benefit of the policy during the year that it was in effect and therefore cannot question the validity
of the policy. It cites Frasier v. Trans-Western Land Corp., 210 Neb. 681, 316 N.W.2d 612 (1982),
for the propositions that a party who has had the benefit of an agreement cannot be permitted in
an action founded upon it to question its validity and that it would be in the highest degree
inequitable and unjust to permit a defendant to repudiate a contract the benefit of which he retains.
Frasier was a case involving a dispute between stock holders as to whether stock issued without
consideration was void. Travelers does not explain exactly what benefits, other than the mere
existence of the policy, were retained by Gonzalez Construction in this case, given that no claims
were ever filed by either Julio or the company against the policy, which has now expired.
         Viewing the evidence in the light most favorable to Travelers, the evidence does not
support a conclusion that there was a contract between Gonzalez Construction and Travelers. Julio
was the original contracting party and named insured under the contract. The district court did not
err in granting Gonzalez Construction’s motion for partial summary judgment or in denying
Travelers’ motion for summary judgment on the issue of whether there was a contract between the
parties.
Denial of Travelers’ Motion for Summary Judgment.
        Travelers asserts that the district court erred in failing to grant its motion for summary
judgment. Although the denial of a motion for summary judgment, standing alone, is not a final,
appealable order, when adverse parties have each moved for summary judgment and the trial court
has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and
may determine the controversy which is the subject of those motions or make an order specifying
the facts which appear without substantial controversy and direct such further proceedings as it
deems just. SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
        Here, in granting Gonzalez Construction’s motion for partial summary judgment and
denying Travelers’ motion with respect to Travelers’ complaint, the court ruled only on the issue
of whether there was a contract between the parties. We have addressed the court’s grant of
Gonzalez Construction’s motion and the denial of Travelers’ motion as it related to the existence
of a contract between the parties above. However, because the court determined that there was no
contract between the parties, any other issues presented by Travelers’ motion for summary
judgment, i.e., issues with respect to Gonzalez Construction’s obligations under any contract (such
as an obligation to exhaust administrative remedies before seeking relief in court) and its liability
based on the classification of its subcontractors as employees, have not been passed upon by the
lower court. An appellate court will not consider an issue on appeal that was not presented to or



                                                -9-
passed upon by the trial court. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018). We
also note that, to the extent Travelers’ motion for summary judgment was also addressed to the
issues raised by Gonzalez Construction’s counterclaims, the court granted the company’s motion
to dismiss the counterclaims without prejudice. Where a case is voluntarily dismissed, there is no
final order on the law or facts of the case, nor has there been a decision on the merits; accordingly,
no appeal will lie. Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726
(2004). We decline to address Travelers’ arguments with respect to the denial of its motion for
summary judgment further, including its argument that the court should have granted its motion
for summary judgment due to Gonzalez Construction’s failure to exhaust its administrative
remedies under the contract before pursuing any defenses and/or counterclaims to Travelers’
lawsuit.
         During oral argument, Travelers made reference to Neb. Rev. Stat. § 48-115(9) and (10)
(Reissue 2010). This section defines the terms “employee” and “worker” under the Nebraska
Workers’ Compensation Act. Subsections (9) and (10) address requirements concerning those who
own more than 25 percent of a corporation and sole proprietors, respectively, providing that such
individuals are not construed as employees under the Nebraska Workers’ Compensation Act unless
they file an election of coverage with the workers’ compensation insurer as provided in those
subsections. Travelers did not cite to § 48-115(9) or (10) in its pleadings or in its briefs on appeal,
but it did refer to these requirements obliquely at several points in its initial brief by noting the fact
that Julio is marked on the ACORD application as being excluded from the policy. Travelers
appears to be arguing that when the application is reviewed in light of §48-115, it means that
Travelers could not have formed a contract with Julio. It is not clear from our record whether this
statutory argument was presented to the district court, and the district court did not discuss it in its
order. Regardless, we conclude that this argument is without merit.
         Travelers’ argument, as well as the dissent’s analysis of this issue, ignores the fact that a
policy was issued naming Julio as the insured and stating that the “Insured is AN INDIVIDUAL.”
The question of whether Travelers could have formed a contract with Julio is not the issue in this
appeal. The question is whether Travelers could unilaterally change the name of the insured to
Gonzalez Construction, thereby creating a contract between itself and Gonzalez Construction and
allowing it to then sue Gonzalez Construction for breach of that contract. The district court
concluded that it could not, and we have affirmed that finding above.
                                            CONCLUSION
       The district court did not err in granting Gonzalez Construction’s motion for partial
summary judgment or in denying Travelers’ motion for summary judgment with respect to the
issue of whether there was a contract between the parties. All other issues raised by Travelers’
motion for summary judgment are not properly before this court on appeal.
                                                                                     AFFIRMED.

       BISHOP, Judge, dissenting.
       Since Gonzalez Construction admitted in its answer to Travelers’ complaint that it “applied
for workers compensation insurance with Travelers and that it paid $750 for said insurance,” I



                                                  - 10 -
respectfully disagree with the majority’s conclusion that there was no contract between the parties,
and I would reverse and remand for further proceedings. Further, as a separate basis for reversal,
I agree with Travelers that the insurance policy sought by Julio was not available to him as an
“individual” in a personal context; rather, the insurance was only available to an “individual” as a
sole proprietor of a business, which Julio inaccurately represented on his ACORD application. The
application and the insurance policy establish that the insurance coverage is for an “assigned risk”
business entity to cover its employees, and is not for “individual” coverage outside that context.
        Regarding Gonzalez Construction’s admission, Traveler’s alleged in its complaint at
paragraph 5, that Gonzalez Construction, who it thereafter refers to as “Gonzalez,” “applied for
workers compensation insurance with Travelers through the Plan and provided certain information
on the ACORD application and paid $750.00 as initial, or deposit, premium.” In its answer,
Gonzalez Construction “admits only so much of Paragraph 5 of the Complaint alleging that
Defendant [Gonzalez Construction] applied for workers compensation insurance with Travelers
and that it paid $750.00 for said insurance; Defendant denies all remaining allegations in Paragraph
5 of said Complaint.” Despite that admission, Gonzalez Construction later, at paragraph 32,
generally denied paragraph 32 of Travelers’ complaint which alleged that “Travelers and Gonzalez
were parties to a contract of insurance, Policy No. [***L147], for the period 10/22/09 to 10/22/10.”
Gonzalez Construction further set forth affirmative defenses which indicated that “[Gonzalez
Construction] has already paid the $750.00 premium that [Travelers] charged for the policy,” and
“[Travelers] has fraudulently or negligently misrepresented the terms of the alleged contract
between the parties.” Gonzalez Construction further alleged counterclaims against Travelers based
upon actions related to the contract for which Gonzalez Construction requested attorney fees and
damages. There is nothing in the record to indicate Gonzalez Construction ever sought dismissal
of the action on the basis that it was not a party to the contract. This contention does not arise until
the submission of Julio’s affidavit at the time of the summary judgment motions. In my opinion,
since Gonzalez Construction admitted in its answer (and affirmatively pled) that it had applied for
workers’ compensation with Traveler’s and paid the $750 premium, such an admission is binding
on Gonzalez Construction, at least for purposes of defeating a motion for summary judgment upon
which the district court decided that Gonzalez Construction was not a party to the insurance
contract. Gonzalez Construction’s later general denial to paragraph 32 does not impact its specific
admission regarding being the party to apply and pay for the insurance policy, as discussed next.
        Generally, an admission made in a pleading on which the trial is had is more than an
ordinary admission; it is a judicial admission. Wisner v. Vandelay Investments, 300 Neb. 825, 916
N.W.2d 698 (2018). It is an elementary rule of pleading that matters admitted by the pleadings
need not be proved. Id. 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. Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018) (defendant’s answer
admitted negligence in operating vehicle and admitted negligence was proximate cause of
collision; trial court correctly found same as matter of law based upon defendant’s unconditional
admissions).




                                                 - 11 -
        An admission in a plea or answer is binding on the party making it; such an admission is a
conclusive or judicial admission, and is not merely evidence. Lange Building & Farm Supply, Inc.
v. Open Circle “R”, Inc., 210 Neb. 201, 313 N.W.2d 645 (1981). The admission is conclusive as
to the admitted fact, and no evidence may be shown to contradict it. Id. In Lange Bldg. & Farm
Supply, Inc., supra, the plaintiff sued the defendant corporation for breach of contract related to
the repair of a grain bin. The defendant moved for a directed verdict at the close of plaintiff’s
evidence on the basis that there was no evidence to establish a contractual relationship between
the plaintiff and the defendant corporation; defendant claimed if there was any contract at all, it
was between the plaintiff and the president of the corporation in his individual capacity. See id.
The trial court sustained the motion, but the Nebraska Supreme Court reversed, noting that the
defendant corporation filed an “amended answer and cross-petition” in which it generally denied
plaintiff’s allegations, but then specifically pleaded that “‘the Plaintiff and Defendant entered into
an agreement for the repair” of defendant’s grain storage bin, and the defendant also incorporated
and attached the same contract as was incorporated and attached to the plaintiff’s pleading. Id. at
203, 313 N.W.2d at 647. The Supreme Court stated that “[t]his recitation becomes important
because there is no other evidence in the record bearing upon the involvement of the defendant
corporation in this transaction,” except for a brief series of questions and answers in the record. Id.
“All other testimony concerning the identity of the contracting party who hired the work done
specified . . . the president of the defendant corporation, in his individual capacity only.” Id. at
204, 313 N.W.2d at 647. The Supreme Court concluded that evidence introduced in the plaintiff’s
case and as set forth in the pleadings raised a legitimate fact question as to the liability of the
defendant corporation which should have been submitted to the jury for resolution. In addition to
testimony that the work was done for the defendant corporation, the Supreme Court pointed out
that the defendant judicially admitted in its amended answer that the same contract sued upon by
the plaintiff existed between the plaintiff and the defendant corporation. The court then set forth
the proposition noted above that an admission in an answer is binding on the party making it, and
is conclusive as to the admitted fact. See Lange Bldg. & Farm Supply, Inc., supra.
        Accordingly, Gonzalez Construction’s admission in its answer that it applied for the
workers’ compensation insurance at issue and paid the premium is conclusive as to the fact that
Gonzalez Construction is the appropriate entity who contracted with Travelers, and no evidence
may be shown to contradict it. See Lange Building & Farm Supply, Inc., supra. I appreciate the
majority’s concern that the admission does not appear to have been specifically invoked by
Travelers, however, as mentioned, the claim that Gonzalez Construction was not a party to the
contract was not raised until the submission of the summary judgment materials. As noted in
Travelers’ appellate brief, “between January 2011 and February 2017, the only issue presented by
Gonzalez as ‘disputed’ was Travelers inclusion of payroll associated with workers . . . . At no time,
up until it filed its Motion for Summary Judgment, did Gonzalez so much as comment on, let alone
object to, Travelers having (properly) changed the named insured on the subject policy from Julio
Gonzalez, sole proprietor, to Gonzalez Construction, Inc., corporation.” Brief for appellant at
26-27. And while the majority correctly notes that Travelers, in its brief on appeal, does not make
a specific argument based on Gonzalez Construction’s judicial admission, this court may
nonetheless note plain error. Plain error may be found on appeal when an error unasserted or



                                                - 12 -
uncomplained of at trial is plainly evident from the record, affects a litigant’s substantial right,
and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial
process. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019). See, also, Upper Republican NRD
v. Dundy Cty. Bd. of Equal., 300 Neb. 256, 912 N.W.2d 796 (2018) (appellate court ordinarily
considers only those errors assigned and discussed in briefs, but may notice plain error). Since
summary judgment can only be entered when “the pleadings and the evidence admitted at the
hearing show that there is no genuine dispute as to any material fact and that the moving party is
entitled to a judgment as a matter of law,” Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2018), I conclude
it was plain error to enter summary judgment in favor of Gonzalez Construction when the
pleadings of the case presented a genuine dispute as to whether Gonzalez Construction was in fact
the proper party to the insurance contract.
        Significantly, even if the judicial admission was not properly invoked as the majority
contends, and setting aside our ability to note plain error, there is other evidence, namely, the
application and policy, which also point to Gonzalez Construction being the proper party in the
underlying action. As noted by the majority, Travelers’ workers’ compensation insurance plan is
available through § 44-3,158, which gives the Director of the Nebraska Department of Insurance
the authority to enter into an agreement with one or more workers’ compensation insurers to
provide workers’ compensation insurance to assigned risk employers. An assigned risk employer
means a Nebraska employer who is in good faith entitled to, but is unable to obtain, workers’
compensation insurance through ordinary methods. The plan is not designed to offer insurance to
individual employees or private individuals; rather, it is made available to employers only.
        Therefore, in this case, the “applicant name” showing “Julio C. Gonzalez,” and the box
next to “Individual” being marked when given the other options of “partnership,” “corporation,”
“Subchapter ‘S’ Corp,” or “LLC,” can only be read to mean an “individual” business owner or
sole proprietor since the insurance is only available for employers to request, not individual
employees or private individuals. Additionally, a “Federal Employer ID Number” is requested, not
a personal social security number (although it appears Julio incorrectly inserted his personal social
security number; this was also later corrected). The application indicates Julio is a 100-percent
“owner,” again representing his position as an employer. Since the record shows that Julio
incorporated his business as of July 1, 2007, then by the time he completed the ACORD application
in October 2009, he obviously erred in classifying his business entity as “Individual” since he was
no longer a sole proprietor who could check that option. Julio also misstated in his application that
he did not use subcontractors in his business, when clearly he had subcontract labor in the
preceding year, as well as $327,048 in subcontract labor during the policy period. The fact that
Julio misstated the classification of his business entity does not change the fact that he applied for
the insurance as an employer, and the only business entity of which he could be considered an
employer at that time was Gonzalez Construction. In fact, where Julio signed the ACORD
application, it indicates, “SIGNATURE (MUST BE AN OWNER OR AN OFFICER).” When
signing that application, Julio had to be signing as an owner or officer of a business entity, not
personally as an individual. Therefore, by signing the application, Julio was binding the only
“employer” in existence at that time of which he was an owner or an officer, namely, Gonzalez
Construction.



                                                - 13 -
        In addition to the judicial admission and the purpose and content of the ACORD
application, the issued policy states at the outset that the policy “is a contract of insurance between
you (the employer named in Item 1 of the Information Page) and us (the insurer named on the
Information Page). . . . The terms of this policy may not be changed or waived except by
endorsement issued by us to be part of this policy.” It also states, “You are insured if you are an
employer named in Item 1 of the Information Page.” The Information Page identifies the insured
as Julio C. Gonzalez and notes the “Total Estimated Premium” of $750. The listing of
endorsements made part of the policy includes a “Notification of Change in Ownership
Endorsement.” That endorsement states that the “experience rating modification factor . . . may
change if there is a change in your ownership. . . . Change in ownership includes sales, purchases,
other transfers, mergers, consolidations, dissolutions, formations of a new entity and other changes
provided for in the applicable experience rating plan manual.” Notably, the endorsement states,
“You must report any change in ownership to us in writing within 90 days of such change. Failure
to report such changes within this period may result in revision of the experience rating
modification factor used to determine your premium.”
        As testified to by Myran Collier, who was the underwriter on the policy at issue,
applications do not always come in with “updated, correct information,” and it was her job to
verify that the information was correct. On November 13, 2009, a “Supplementary Underwriting
Information Request” was made requesting verification of the “correct entity name and entity type”
for the insured. It listed two choices: (1) “Entity Type: Sole Proprietor/Individual[,] Entity Name:
Gonzalez, Julio C dba Gonzalez Construction” or (2) “Entity Type: Corporation[,] Entity Name:
Gonzalez Construction Inc.” It also inquired as to what relationship or affiliation “the insured” had
with Gonzalez Construction, Inc. A response was requested by December 3. A typed document
that appears to have been sent by facsimile dated December 1 to Travelers (“Thomas CPA” is
noted in the facsimile information heading) indicates it is regarding “Supplemental Underwriting
Information Request For Julio Gonzalez Policy #***L14709.” It then states:
                1. Company is in the construction industry, drywall installation.
                2. (A) Julio Gonzalez as a sole proprietor dba Gonzalez Construction does not exist
        as of 7/1/2007.
                As of that date, Mr. Gonzalez incorporated his business
                (B) Entity Type: S Corporation /Entity Name: Gonzalez Construction Inc
                3. A Schedule C was not prepared for 2008/See attached 2008 1120S for
        Corporation
                4. Mr. Julio Gonzalez is the sole shareholder in the S Corporation Gonzalez
        Construction Inc. He is also the only employee of the corporation
                Please direct any questions to my accountant -- Carol Thomas EA [contact
        information provided]

Although the document is not signed, the direction to refer questions “to my accountant” would
suggest the document was generated by Julio but faxed through Thomas’ office (given the heading
at the top of the page).




                                                - 14 -
        As the majority points out, after receipt of this information, Travelers changed the name of
the insured on the policy. On December 11, 2009, a “Change Document” was issued and reflects
the “Insured’s Name” as Gonzalez Construction, Inc., and indicates that the policy change “was
processed per a request received from you or your producer.” A policy information endorsement
was also generated, indicating the insured’s name was changed to Gonzalez Construction, and the
insured’s legal status was changed to a corporation. The majority concludes this change was done
unilaterally by Travelers, and that such a change required Julio’s consent “to be eliminated as the
insured under the policy or the consent of Gonzalez Construction to be bound under the policy.”
However, I do not see this as a unilateral change, nor a change that required anything more than
verifying and correcting the classification of the business entity to be insured from a sole
proprietorship to a corporation. When an initial review was undertaken regarding the issued policy,
a question arose as to whether the insured employer was properly classified. Notably, in the policy
under “Part Five -- Premium,” it states under part “B. Classifications”:
                Item 4 of the Information Page shows the rate and premium basis for certain
        business or work classifications. These classifications were assigned based on an estimate
        of the exposures you would have during the policy period. If your actual exposures are not
        properly described by those classifications, we will assign proper classifications, rates, and
        premium based by endorsement to this policy.

The policy provides that Travelers could provide proper classifications for the business by
endorsements, which it did. And as noted earlier, a “Notification of Change in Ownership
Endorsement” issued with the policy provided that if there was a change in ownership (formation
of a new entity or other changes), the insured was required to report such changes in ownership to
Travelers in writing within 90 days of such change. The document faxed on December 1, 2009,
did not report a new change in ownership, but it did report the correction to the classification of
Julio’s business entity. And the reference at the bottom of the page to direct questions “to my
accountant -- Carol Thomas,” certainly suggests the document was generated by Julio. Notably, a
“Policyholder Audit Report” was signed November 2, 2010, by Thomas as an “Authorized
Representative.” This time, where it asks about “Your Company Structure,” and gives as options,
“Individual,” “Partnership,” “Corporation,” and “Limited Liability Co.,” the option “Corporation”
is circled. The directions specify to list “Sole Proprietor, Partner(s), or Corporate Officer(s) along
with their duties,” and directs to “[i]nclude all principals even if they receive no pay or have
elected, by filing an exclusion form, not to be covered.” Julio Gonzalez is listed as “President.”
         Julio had an obligation to correct the classification of his business entity which had been
incorrectly identified in his ACORD application. The faxed document dated December 1, 2009, in
response to an inquiry from Travelers about the proper classification of his business, correctly
identifies his business entity as a corporation. Julio was unable to apply for the assigned risk
employers’ workers’ compensation insurance for himself as an individual person; rather, the
insurance was only available to him as an employer. And at the time of Julio’s application, the
only business employer in existence for which he had authority to bind was Gonzalez Construction.
Accordingly, I would reverse the summary judgment order and remand for further proceedings.




                                                - 15 -
