Copple Constr. v. Columbia Nat. Ins. Co.

jury could reasonably conclude that France had planned to kill
Morrison and that the killing was not in self-defense.
The credibility and weight of witness testimony are for
the jury to determine, and witness credibility is not to be
reassessed on appellate review. State v. Banks, 278 Neb. 342,
771 N.W.2d 75 (2009). Any conflicts in the evidence or ques-
tions concerning the credibility of witnesses are for the finder
of fact to resolve. State v. Branch, 277 Neb. 738, 764 N.W.2d
867 (2009). Because it found France guilty, the jury apparently
disbelieved France’s assertion that he acted in self-defense.
Further, there was sufficient evidence to support a finding that
France did not act in self-defense, and we will not reassess the
jury’s finding on appeal. France’s assignments of error regard-
ing self-defense are without merit.
CONCLUSION
We conclude that the district court did not err in its self-
defense instruction and that given the evidence, there was
no error in the jury’s findings that France was not legally
insane and that he was not acting in self-defense when he
killed Morrison. We therefore affirm France’s convictions
and sentences.
A ffirmed.
C opple C onstruCtion, l.l.C., Appellee And Cross -Appellee ,
v. C olumbiA nAtionAl insurAnCe C ompAny, AppellAnt
And Cross -Appellee , And tyson fresh meAts , inC.,
Appellee And Cross -AppellAnt.
776 N.W.2d 503
Filed December 24, 2009. 	No. S-09-267.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
60 	279 NeBrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

3. Insurance: Contracts: Appeal and Error. The interpretation of an insurance
policy is a question of law.
4. Judgments: Appeal and Error. In reviewing questions of law, an appellate court
resolves the question independently of the lower court’s conclusion.
5. Property: Appurtenances: Words and Phrases. The term “fixture” refers to a
chattel which is capable of existing separately and apart from realty, but which,
by actual annexation and appropriation to the use or purpose of the realty with
the intention of making it a permanent accession thereto, becomes a part of
the realty.
6. Property: Appurtenances: Intent. To determine whether an item constitutes a
fixture requires an appellate court to look at three factors: (1) actual annexation
to the realty, or something appurtenant thereto; (2) appropriation to the use or
purpose of that part of the realty with which it is connected; and (3) the intention
of the party making the annexation to make the article a permanent accession to
the freehold.
Appeal from the District Court for Dakota County: WilliAm
binkArd, Judge. reversed and remanded with directions.
Jerald 	L. 	rauterkus 	and 	Sara A. 	Lamme, 	of 	erickson
Sederstrom, p.C., for appellant.
Daniel B. Shuck, of Shuck Law Firm, for appellee Tyson
Fresh Meats, Inc.
paul D. Lundberg, of Lundberg Law Firm, for appellee
Copple Construction, L.L.C.
Wright, C onnolly, gerrArd, stephAn, mCC ormACk, and
miller-lermAn, JJ.
mCC ormACk , J.
NATUre OF CASe
Copple Construction, L.L.C., brought a declaratory judg-
ment action against Columbia National Insurance Company
(Columbia) asserting a claim for coverage under a policy
of insurance issued by Columbia. Tyson Fresh Meats, Inc.
(Tyson), 	was 	subsequently 	added 	as 	a 	necessary 	party.
The district court granted summary judgment for Copple
Construction. It later granted Copple Construction’s motion
for attorney fees, but denied Tyson’s. Columbia appeals, and
Tyson cross-appeals.
COppLe CONSTr. v. COLUMBIA NAT. INS. CO. 	61
Cite as 279 Neb. 60

FACTS
Copple Construction is owned and operated by Jerry Copple.
Although Copple Construction does work for other clients, its
main client is Tyson. On April 26, 2006, a Tyson employee
contacted Copple Construction to have it repair two small
holes in a polyethylene tarp which acted as a lagoon cover at
a wastewater treatment plant in Dakota City, Nebraska, owned
by Tyson. The lagoons and corresponding covers are large;
Copple testified that they are about the size of a football field.
The cover itself is secured to the edges of the lagoon by pulling
the sides of the cover into an anchor trench in the ground and
filling that trench with concrete. Under these covers, methane
gas is created by the anaerobic breakdown of the materials
from the wastewater. That methane is collected, “scrubbed,”
and used as fuel for boilers at the plant.
Upon arriving at Tyson, Copple and his employee, William
Babb, were escorted to the areas in need of patching—holes
of approximately three-fourths of an inch to an inch at both
lagoons 9 and 11. The hole at lagoon 11 was patched without
incident. Copple and Babb then moved on to the hole in the
cover at lagoon 9. Copple began the preliminary steps neces-
sary to patch the hole, including cleaning the area and cutting
the patch. He also began heating a hot-air blower to fuse the
patch to the cover. The blower was making strange noises, so
Copple used his knife to scrape the tip of the blower. A fire
erupted from the blower. The fire destroyed about one-third of
the tarp covering lagoon 9. According to Tyson, costs related to
the replacement of the tarp are $340,147.83.
Copple Construction filed a claim for coverage under a
general liability policy issued by Columbia. Columbia denied
Copple Construction’s claim. Copple Construction then filed a
suit requesting a declaratory judgment that the loss was cov-
ered under the policy.
Copple Construction filed a motion for summary judgment,
which Tyson joined. Columbia filed a cross-motion for sum-
mary judgment. Initially, the district court denied both motions,
but later granted Copple Construction’s motion to reconsider,
concluding that no policy exclusion operated to deny coverage.
The district court later granted Copple Construction’s request
62 	279 NeBrASkA repOrTS

for attorney fees, but denied Tyson’s. Columbia appeals, and
Tyson cross-appeals.
ASSIGMeNTS OF errOr
On appeal, Columbia assigns, restated and renumbered, that
the district court erred in (1) finding that exclusion I(A)(2)(j)(5)
did not apply; (2) finding that exclusion I(A)(2)(j)(6) did not
apply; (3) concluding that the policy’s total pollution exclusion,
I(A)(2)(f), did not apply; (4) granting Copple Construction’s
and Tyson’s motions for summary judgment while denying its
own; (5) relying upon the testimony of an agent employed by
the agency which sold Copple Construction the policy of insur-
ance; and (6) awarding Copple Construction attorney fees.
On cross-appeal, Tyson argues that the district court erred in
not awarding it attorney fees.
STANDArD OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine 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.1 In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence.2
[3,4] The interpretation of an insurance policy is a question of
law.3 In reviewing questions of law, an appellate court resolves
the question independently of the lower court’s conclusion.4
ANALYSIS
is C overAge exCluded by poliCy?
On appeal, Columbia assigns that the district court erred by
not finding that coverage under Copple Construction’s policy
1 Rickerl v. Farmers Ins. Exch., 277 Neb. 446, 763 N.W.2d 86 (2009).
2 Id.
3 Id.
4 Id.
COppLe CONSTr. v. COLUMBIA NAT. INS. CO. 	63
Cite as 279 Neb. 60

of insurance was excluded under three different policy exclu-
sions: the business risk exclusions of I(A)(2)(j)(5) and (6), and
the total pollution exclusion of I(A)(2)(f).
Since we conclude that business risk exclusion I(A)(2)(j)(5)
excludes insurance coverage for Copple, it is not necessary to
address Columbia’s assignments of error with regard to the
other exclusions of the policy. exclusion I(A)(2)(j)(5) provides
that “[t]his insurance does not apply to . . . [t]hat particular
part of real property on which you or any contractors or sub-
contractors working directly or indirectly on your behalf are
performing operations, if the ‘property damage’ arises out of
those operations.”
As an initial matter, there does not seem to be any dispute
that Copple and Babb were performing operations within the
meaning of the exclusion. A review of the record confirms
this: Copple and Babb had clearly begun their work at the
time of the fire, as the leak had been prepped and the hot-air
blower was being heated. Still at issue, however, is whether the
property damage at issue was to “[t]hat particular part of real
property” within the meaning of the exclusion.
[5] We turn first to the question of whether the tarp was
real property. To answer this, we must determine whether
the cover was a fixture. A fixture is defined by Black’s Law
Dictionary as
[p]ersonal property that is attached to land or a building
and that is regarded as an irremovable part of the real
property . . . . Historically, personal property becomes a
fixture when it is physically fastened to or connected with
the land or building and the fastening or connection was
done to enhance the utility of the land or building.5
And this court has further defined fixture as “a chattel which
is capable of existing separate and apart from realty . . . but
which, by actual annexation and appropriation to the use or
purpose of the realty with the intention of making it a perma-
nent accession thereto, becomes a part of the realty.”6
5 Black’s Law Dictionary 713 (9th ed. 2009).
6 Fuel Exploration, Inc. v. Novotny, 221 Neb. 17, 22, 374 N.W.2d 838, 842
(1985).
64 	279 NeBrASkA repOrTS

[6] This court has held that to determine whether an item
constitutes a fixture requires this court to look at three factors:
(1) actual annexation to the realty, or something appurtenant
thereto; (2) appropriation to the use or purpose of that part
of the realty with which it is connected; and (3) the intention
of the party making the annexation to make the article a per-
manent accession to the freehold.7 This third factor is gener-
ally regarded as the most important factor when determining
whether an item is a fixture.8
The polyethylene tarp in question was stretched across an
individual lagoon. The lagoon itself is about the size of a foot-
ball field and edged with an anchor trench about 4 feet deep by
2 feet wide. The edge of the tarp was placed into the anchor
trench, and concrete was poured over it to hold it in place.
According to a Tyson employee who works at the wastewater
plant, the tarps, which act as lagoon covers, are never removed
and there is no process for doing so.
Considering the first factor as set forth above, given that the
tarp is placed into a trench and weighed down with concrete,
we conclude that the tarp was annexed to the real property. As
to the second factor, the part of the realty to which the tarp was
connected is a wastewater lagoon, and the tarp was acting as a
cover for that lagoon. Finally, it seems clear that it was Tyson’s
intent that the tarp become a permanent part of the property,
given that the covers are never removed and there is no pro-
cedure for doing so. We conclude that the tarp was a fixture
and, therefore, real property.
The second question facing this court is whether the prop-
erty damage in question, in this case the fire, was to “[t]hat
particular part” on which Copple was “performing opera-
tions.” On appeal, Columbia argues that the cover is what was
destroyed by the fire, thus the property damage in question
was to “[t]hat particular part.” Copple Construction, however,
argues that it was hired to repair a small hole in a much larger
tarp, that Copple and Babb were directed to an area about 4
7 Northern Natural Gas Co. v. State Bd. of Equal., 232 Neb. 806, 443
N.W.2d 249 (1989).
8 Id.
COppLe CONSTr. v. COLUMBIA NAT. INS. CO. 	65
Cite as 279 Neb. 60

feet by 4 feet, and that this smaller area was “[t]hat particular
part” at issue.
In Vinsant Elec. Contr. v. Aetna Cas. & Sur.,9 the insured
was hired to install two circuit breakers in a switchboard.
During the installation, the switchboard caught fire and was
destroyed. The court determined that even though the switch-
board was clearly made of different parts, it was nevertheless
“‘clearly a unit of property within itself, self-contained and a
single item.’”10 As such, the damage was excluded under an
exclusion similar to the one at issue in this case.
And in Jet Line Services, Inc. v. American Employers
Insurance Co.,11 the insured was hired to clean out a fuel tank.
While cleaning the bottom of the tank, there was an explosion.
The insured argued that the occurrence was covered, but the
court disagreed:
[T]he words “that particular part of any property . . .
on which operations are being performed” refers to the
entire tank and not just to the bottom of the tank that
[the insured’s] personnel were cleaning at the moment
of the explosion. [The insured] was retained to clean the
entire tank, and it was the entire tank on which opera-
tions were being performed within the meaning of the
policy language.12
Like the courts in Vinsant Elec. Contr. and Jet Line Services,
Inc., we conclude that it is not possible to segregate the tarp
at issue into smaller sections for the purposes of determin-
ing on what part of the tarp Copple was “performing opera-
tions.” As a practical matter, such an approach is unworkable.
We therefore conclude that it was the entire tarp upon which
operations were being conducted within the meaning of the
policy exclusion.
We 	conclude 	that 	the 	policy 	exclusion 	set 	forth 	in
I(A)(2)(j)(5) is applicable and precludes coverage for the
9 Vinsant Elec. Contr. v. Aetna Cas. & Sur., 530 S.W.2d 76 (Tenn. 1975).
10 Id. at 77.
11 Jet Line Services, Inc. v. American Employers Insurance Co., 404 Mass.
706, 537 N.e.2d 107 (1989).
12 Id. at 711, 537 N.e.2d at 111.
66 	279 NeBrASkA repOrTS

occurrence at issue in this case. The district court erred in
finding otherwise.
remAining A ssignments of error
And C ross -A ppeAl
In addition to its argument regarding I(A)(2)(j)(5), Columbia
also argues the applicability of two other policy exclusions.
But because we have found that coverage is excluded under
I(A)(2)(j)(5), we need not reach Columbia’s arguments with
respect to these other exclusions.
Columbia also argues that the district court erred in admit-
ting the testimony of the agent employed by the agency which
sold Copple Construction the policy of insurance. Given our
resolution of this appeal, we also decline to reach this assign-
ment of error.
Finally, Columbia assigns that the district court erred in
awarding Copple Construction attorney fees. Given that we
conclude that there was no coverage under the policy issued by
Columbia, we agree that it was error to do so.
On cross-appeal, Tyson contends that the district court erred
in not awarding it attorney fees. Again, given our conclusion
that there was no coverage, we find Tyson’s argument with-
out merit.
CONCLUSION
We conclude that the district court erred in finding coverage
under the policy of insurance issued to Copple Construction
by Columbia and in granting Copple Construction’s motion for
summary judgment. Accordingly, we reverse the judgment and
remand the cause to the district court with directions to enter
judgment in favor of Columbia.
reversed And remAnded With direCtions.
heAviCAn, C.J., not participating.
COppLe CONSTr. v. COLUMBIA NAT. INS. CO. 	67
Cite as 279 Neb. 60