City of Lincoln v. County of Lancaster
297 Neb. 256
| Neb. | 2017Background
- A Lancaster County deputy intentionally made physical contact with a City of Lincoln police officer, aggravating a recent shoulder surgery; the City paid ~$63,418 in workers’ compensation for the injury.
- The County had a liability policy with a $250,000 retained limit (self-insured retention) and $4,750,000 limits; the policy indemnified the insured for damages and claim expenses only in excess of the retained limit and required an "occurrence."
- The City sued the County for reimbursement, arguing the County waived sovereign immunity by purchasing liability insurance under Neb. Rev. Stat. § 13-916.
- The County asserted immunity under the Political Subdivisions Tort Claims Act (the Act), arguing the claim arose from an intentional tort (battery), which § 13-910 excludes from the Act’s waiver, and that the policy did not cover the claim.
- The district court granted summary judgment for the County, finding (1) the claim arose from a battery and fell within the Act’s intentional torts exception, and (2) the County’s insurance did not waive immunity for the $63k claim because coverage applied only above the $250k retained limit.
- The Nebraska Supreme Court affirmed on different grounds: because the policy required an "occurrence" (an accidental happening) and intentional battery is not an "occurrence," the policy provided no coverage for the battery, so § 13-916’s insurance-based waiver never attached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the officer’s injury arises from a battery (intentional tort) | City: contact not properly characterized as battery (implicitly argued in supplemental brief) | County: contact was intentional—therefore battery—excluded by §13‑910 | Court: evidence showed intentional contact; claim arose from battery; City’s initial brief failed to preserve challenge; no plain error by trial court |
| Whether purchase of liability insurance waives sovereign immunity under §13‑916 for this claim | City: County waived immunity by buying liability insurance, so City may recover its $63k | County: policy covers only amounts in excess of $250k retained limit; no waiver for amounts within retained limit; and policy requires an "occurrence" | Court: policy covers only "occurrences" (accidents); an intentional battery is not an "occurrence," so policy provided no coverage and §13‑916 waiver did not apply |
| Whether the retained limit/self‑insured retention determines waiver for small claims | City: even if retained limit exists, procurement of policy waives immunity to extent stated in policy | County: retained limit is uninsured amount borne by County; policy only indemnifies excess, so no waiver for amounts under retention | Court: unnecessary to decide generally; here waiver did not attach because there was no coverage at all (battery not an "occurrence") |
| Appropriateness of summary judgment | City: factual disputes exist about the nature/force of contact | County: undisputed that contact was intentional and policy language unambiguous | Court: summary judgment affirmed as a matter of law—no coverage as a matter of law and no waiver of immunity |
Key Cases Cited
- Kimminau v. City of Hastings, 291 Neb. 133 (characterization of torts under the Act)
- Drake-Williams Steel v. Continental Cas. Co., 294 Neb. 386 (construction of insurance policy language)
- Britton v. City of Crawford, 282 Neb. 374 (battery as an intentional tort and not an accident)
- Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697 (intentional acts are not "accidents" for coverage purposes)