City of Lincoln v. County of Lancaster, 297 Neb. 256

Background

A Lancaster County deputy intentionally made physical contact with a City of Lincoln police officer; the contact aggravated the officer’s recently operated-on shoulder, and the City paid about $63,418 in workers’ compensation expenses.
The County had a retained-limits liability policy: $250,000 retained limit (self-insured portion) and $4,750,000 limits of insurance; the policy indemnified damages and claim expenses only in excess of the retained limit.
The City sued the County seeking reimbursement, arguing the County waived sovereign immunity by purchasing liability insurance under Neb. Rev. Stat. § 13-916.
The County defended on sovereign-immunity grounds, asserting the claim arose from an intentional tort (battery) excluded by the Political Subdivisions Tort Claims Act (Neb. Rev. Stat. § 13-910) and that its policy did not provide coverage for the battery.
The district court granted summary judgment for the County, finding the claim was barred as an intentional tort and that the County’s insurance procurement did not waive immunity for this claim because the policy obligated the insurer to pay only amounts in excess of the retained limit.
On appeal the Nebraska Supreme Court affirmed, but on a different ground: the policy’s insuring agreement required an “occurrence” (an accidental happening), and an intentional battery is not an “occurrence,” so the policy did not provide coverage and thus the County did not waive immunity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City’s claim arises from a battery (intentional tort)	The contact was not a battery or at least factual disputes preclude summary judgment	The contact was intentional and therefore a battery exempting the claim from the Act’s waiver	Held: The contact was intentional and constituted a battery; the intentional tort exception applies
Whether procurement of liability insurance under § 13-916 waived the County’s immunity	Insurance purchase waives immunity for covered claims; City argued waiver applies here despite retained limit	Policy’s terms limit insurer obligation to amounts in excess of retained limit; County argued either no waiver or only above retained limit	Held: No waiver because policy did not cover the battery (see next issue); no coverage means no waiver
Whether the policy’s insuring agreement covers the battery (i.e., whether a battery is an “occurrence”)	City contended policy generally affords liability coverage so waiver should apply	County argued policy required an “occurrence” (an accidental happening) and intentional battery is not an occurrence	Held: Battery is intentional and not an “occurrence” under the policy; therefore policy provided no coverage for the claim
Whether court should decide waiver scope as to retained limits (policy excess vs. self-insured retention)	City urged resolution on retained-limit waiver issue for efficiency	County and court noted resolution depends on policy language; unnecessary because no coverage exists here	Held: Court declined to decide broadly; left retained-limit questions for cases where policy coverage exists

Key Cases Cited

Kimminau v. City of Hastings, 291 Neb. 133 (Neb. 2015) (interpreting scope of Political Subdivisions Tort Claims Act exceptions)
Drake-Williams Steel v. Continental Cas. Co., 294 Neb. 386 (Neb. 2016) (insurance-policy interpretation principles)
Britton v. City of Crawford, 282 Neb. 374 (Neb. 2011) (battery characterized as an intentional act; intentional acts are not accidents)
Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697 (Neb. 2001) (intentional acts cannot be accidents for insurance coverage)