Loves v. World Ins. Co.

judgment in favor of Andreasen and New york Life, and we,
therefore, affirm.
affiRmed.
stephan, J., not participating.
doRothy m. loves , appellant, v. woRld insuRance
company, a nebRaska coRpoRation, appellee .
758 N.W.2d 640
Filed December 19, 2008. 	No. S-07-1067.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a 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.
3. ____: ____. When cross-motions for summary judgment have been ruled upon
by the district court, the appellate court may determine the controversy that is
the subject of those motions or may make an order specifying the facts that
appear without substantial controversy and direct such further proceedings as it
deems just.
4. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
5. Statutes. In the absence of a statutory indication to the contrary, words in a stat-
ute will be given their ordinary meaning.
6. Employer and Employee: Wages: Termination of Employment. the Nebraska
Wage payment and Collection Act does not prohibit an employer from provid-
ing a sick leave benefit which may be used only in the event of illness or injury
and which has no monetary value upon termination of employment if it is not
so used.
Appeal from the District Court for Douglas County: John d.
haRtiGan, JR., Judge. Affirmed.
Steven J. riekes and Howard N. Epstein, of marks, Clare &
richards, L.L.C., for appellant.
mary kay O’Connor and pamela Epp Olsen, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.p., for appellee.
936 	276 NEBrASkA rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

heavican, c.J., connolly, G eRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
stephan, J.
In 2003, Dorothy m. Loves retired after working for World
Insurance Company (World) for approximately 47 years. In
this action brought under the Nebraska Wage payment and
Collection Act (NWpCA),1 the issue is whether she is entitled
to be paid for unused sick leave which accrued during her
employment. the district court for Douglas County resolved
the issue in the negative, and we affirm.
BACkgrOUND
Loves was employed by World from November 12, 1956,
until her retirement on November 3, 2003. During her employ-
ment, World offered certain fringe benefits to its employees,
including a sick leave plan. prior to January 1, 1996, World’s
sick leave plan permitted employees to accumulate unused sick
leave and cash out accrued but unused sick leave at termination
or retirement.
On December 7, 1995, World sent a memorandum to all full-
time employees explaining that effective January 1, 1996, the
sick leave policy would change. Under the new policy, accumu-
lated but unused sick leave would no longer be cashed out upon
“termination” of employment. It could, however, be placed into
an emergency reserve account for extended employee illness or
disability. Any unused time would be forfeited. this new policy
was included in employee handbooks dated may 4, 1998, and
may 18, 2000, which specifically stated that “[u]nused per-
sonal and sick time can not be cashed in at time of termina-
tion.” Loves acknowledged receipt of the revised policy and
signed a notice to that effect on may 18, 1998.
Loves claimed that at the time of her November 2003 retire-
ment, she had accumulated at least 794.35 unused hours of sick
leave. Loves asked World to cash out her sick leave at the time
of her retirement, but it refused to do so. Loves then filed this
action, claiming at least $13,956.73 in compensation for the
unused sick leave. World answered, alleging that its policy at
1 Neb. rev. Stat. §§ 48-1228 to 48-1232 (reissue 2004).
LOVES v. WOrLD INS. CO. 	937
Cite as 276 Neb. 936

the time of Loves’ retirement disallowed the accumulation and
cashing out of sick leave and that such a policy did not violate
the NWpCA. World also alleged that Loves’ claim was barred
by the applicable statute of limitations.
Both parties moved for summary judgment with supporting
evidence. the district court granted World’s motion and denied
Loves’ cross-motion. It determined that Loves did not meet the
conditions stipulated by the World sick leave policy in effect
at the time of retirement, because she did not have an illness
preventing her from working. Distinguishing our decision in
Roseland v. Strategic Staff Mgmt.,2 which held that earned but
unused vacation time constituted wages within the meaning of
the NWpCA, the court stated that “World’s sick leave policy is
not vacation time masquerading under another name, but a pro-
vision put in place by an employer for the benefit of employees
unable to work due to illness.” In further holding that Loves
had no vested right to payment of sick leave accumulated prior
to the 1996 change in World’s policy, the district court con-
cluded: “Even ignoring the fact that World reserved the right
to amend or terminate any of its policies, the undisputed facts
show that the statute of limitations has long since run on this
particular claim.”
Loves timely appealed from the district court’s decision, and
we moved the appeal to our docket pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state.3
ASSIgNmENtS OF ErrOr
Loves assigns that the district court erred in (1) granting
World’s motion for summary judgment and overruling her
cross-motion and (2) holding that the statute of limitations
barred her claim.
StANDArD OF rEVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
2 Roseland v. Strategic Staff Mgmt., 272 Neb. 434, 722 N.W.2d 499 (2006).
3 See Neb. rev. Stat. § 24-1106(3) (reissue 1995).
938 	276 NEBrASkA rEpOrtS

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.4
[2] In reviewing a summary judgment, an appellate court
views the evidence in a 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.5
[3] When cross-motions for summary judgment have been
ruled upon by the district court, the appellate court may deter-
mine the controversy that is the subject of those motions or
may make an order specifying the facts that appear without
substantial controversy and direct such further proceedings as
it deems just.6
[4] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.7
ANALySIS
the NWpCA requires an employer to pay “unpaid wages”
to an employee who separates from the payroll “on the next
regular payday or within two weeks of the date of termina-
tion, whichever is sooner.”8 A sick leave plan is considered
a fringe benefit under the NWpCA.9 the NWpCA defines
“wages” as
compensation 	for 	labor 	or 	services 	rendered 	by 	an
employee, 	including 	fringe 	benefits, 	when 	previously
agreed to and conditions stipulated have been met by the
employee, whether the amount is determined on a time,
4 Ehlers v. State, ante p. 605, 756 N.W.2d 152 (2008); Gavin v. Rogers Tech.
Servs., ante p. 437, 755 N.W.2d 47 (2008).
5 Ehlers v. State, supra note 4.
6 Builders Supply Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645
(2008).
7 Borrenpohl v. DaBeers Properties, ante p. 426, 755 N.W.2d 39 (2008);
Scofield v. State, ante p. 215, 753 N.W.2d 345 (2008); Niemoller v. City of
Papillion, ante p. 40, 752 N.W.2d 132 (2008).
8 § 48-1230(2)(a).
9 § 48-1229(3).
LOVES v. WOrLD INS. CO. 	939
Cite as 276 Neb. 936

task, fee, commission, or other basis. Paid leave, other
than earned but unused vacation leave, provided as a
fringe benefit by the employer shall not be included in the
wages due and payable at the time of separation, unless
the employer and the employee or the employer and
the collective-bargaining representative have specifically
agreed otherwise.10
Applying these statutory provisions, we have held that a pay-
ment will be considered a wage subject to the NWpCA if
(1) it is compensation for labor or services, (2) it was previ-
ously agreed to, and (3) all the conditions stipulated have
been met.11
[5] In the absence of a statutory indication to the contrary,
words in a statute will be given their ordinary meaning.12
Under the plain language of § 48-1229(4) quoted above,
unused sick leave is not a part of wages payable to a separating
employee unless there is a specific agreement otherwise. Such
an agreement existed in Professional Bus. Servs. v. Rosno,13
where the employee handbook provided, “‘Any sick leave not
used will be paid to the employee at the time of termination.’”
But in this case, it is undisputed that at the time of Loves’
retirement, the employee handbook provided that sick leave
could be used “for employee illness or that of a dependent
child” and that “[u]nused sick time cannot be carried over but
will be placed in an emergency reserve account to be used for
extended periods of illnesses, greater than 3 days, or disabil-
ity.” It also provided that “[u]nused personal and sick time can
not be cashed in at time of termination. Any unused balance
will be forfeited.”
[6] Clearly, under § 48-1229(4), accrued but unused sick
leave is treated differently than accrued but unused vaca-
tion leave for purposes of determining unpaid wages when
10 § 48-1229(4) (emphasis supplied).
11 Pick v. Norfolk Anesthesia, ante p. 511, 755 N.W.2d 382 (2008).
12 McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 748 N.W.2d
66 (2008).
13 Professional Bus. Servs. v. Rosno, 268 Neb. 99, 115, 680 N.W.2d 176, 188
(2004).
940 	276 NEBrASkA rEpOrtS

employment ends. Other courts have recognized an employ-
er’s right to treat sick leave as a “contingent benefit due only
in the event an employee misses work due to illness.”14 We
conclude that the NWpCA does not prohibit an employer
from providing a sick leave benefit which may be used only
in the event of illness or injury and which has no monetary
value upon termination of employment if it is not so used. In
this case, the agreement of the parties at the time of Loves’
retirement, as reflected in the employee handbook, contem-
plated a benefit of this nature. Loves did not contend that she
was entitled to the value of sick leave based on a qualifying
illness or injury, and she did not present any medical evidence
to that effect.
the remaining question is whether Loves was entitled to a
“vested” sick leave benefit based upon World’s pre-1996 pol-
icy. On this point, the record is quite sparse. the pre-1996 sick
leave policy itself is not in the record. We have before us only
two brief references to the policy: one in Loves’ affidavit and
the second in a copy of a December 7, 1995, memorandum that
World issued to all full-time employees. this memorandum
stated that effective January 1, 1996, there would no longer be
a “cash out of benefits at termination, as i[s] the case under our
current policy.” the subsequent copies of the employee hand-
books in the record, dated may 4, 1998, and may 18, 2000,
reflect this policy change.
the 1998 and 2000 handbooks state that employment was
at will, and there is no evidence that Loves ever had any other
employment status with World. the handbooks also specifi-
cally reserve World’s right to change its policies, and there is
nothing in the record either restricting World’s right to change
its pre-1996 sick leave policy or supporting a claim that it cre-
ated any vested contractual rights when it did so. the record
reflects that Loves was informed of the 1996 change in the
sick leave policy, but there is no indication that she protested
or claimed any vested rights at the time. Courts have held that
14 Teamsters, Local 117 v. NW Beverages, 95 Wash. App. 767, 768, 976 p.2d
1262, 1263 (1999). See, also, Simpson v. City of Blanchard, 797 p.2d 346
(Okla. App. 1990).
LOVES v. WOrLD INS. CO. 	941
Cite as 276 Neb. 936

when an at-will employee continues working with knowledge
of changed sick leave policies, the employee gives up any
rights under a superseded policy.15
We conclude that the record before us does not provide a
basis for determining that World’s pre-1996 sick leave policy
created any vested contractual right entitling Loves to payment
of unused sick leave at the time of her retirement in 2003.
Accordingly, we need not address the statute of limitations
issue presented in this appeal.
CONCLUSION
For the reasons discussed, we conclude that the district court
did not err in granting World’s motion for summary judgment
and denying Loves’ cross-motion. We therefore affirm the judg-
ment of the district court in favor of World.
affiRmed.
wRiGht, J., not participating.
15 National Rifle Ass’n v. Ailes, 428 A.2d 816 (D.C. 1981); Werden v. Nueces
County Hosp. Dist., 28 S.W.3d 649 (tex. App. 2000); Gamble v. Gregg
County, 932 S.W.2d 253 (tex. App. 1996); Willets v. City of Creston, 433
N.W.2d 58 (Iowa App. 1988).
state of nebRaska , appellee , v.
Joshua l. albeRs , appellant.
758 N.W.2d 411
Filed December 19, 2008. 	No. S-07-1322.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
3. Prosecuting Attorneys: Presentence Reports. Under the first sentence of Neb.
rev. Stat. § 29-2261(6) (Cum. Supp. 2006), a prosecutor is included in the cat-
egory of “others entitled by law to receive” the information in the presentence
report and therefore the sentencing court is not required to make a determination
942 	276 NEBrASkA rEpOrtS