RSUI Indemnity Co. v. Bacon

RSUI I ndemnIty C ompany and LIbeRty mUtUaL
I nSURanCe GRoUp, aS SUbRoGeeS of KIewIt
C onStRUCtIon C ompany, appeLLeeS,
v. RonaLd “tIm ” baCon
et aL., appeLLantS.
810 N.W.2d 666
Filed September 30, 2011. 	No. S-10-1020.
1. Summary Judgment: Appeal and Error. 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 that party the benefit of all reasonable inferences
deducible from the evidence.
2. Prejudgment Interest: Appeal and Error. Whether prejudgment interest should
be awarded is reviewed de novo on appeal.
3. Contracts: Principal and Agent: Liability. An agent for a disclosed principal is
not liable on a contract in the absence of some other agreement to the contrary or
other circumstances showing that the agent has expressly or impliedly incurred or
intended to incur personal responsibility.
4. Contracts. When the terms of a contract are clear, a court may not resort to rules
of construction, and the terms are to be accorded their plain and ordinary mean-
ing as an ordinary or reasonable person would understand them.
5. Contracts: Parties. The implied covenant of good faith and fair dealing exists
in every contract and requires that none of the parties to the contract do anything
which will injure the right of another party to receive the benefit of the contract.
6. ____: ____. The nature and extent of an implied covenant of good faith and fair
dealing is measured in a particular contract by the justifiable expectations of the
parties. Where one party acts arbitrarily, capriciously, or unreasonably, that con-
duct exceeds the justifiable expectations of the second party.
7. ____: ____. A violation of the covenant of good faith and fair dealing occurs
only when a party violates, nullifies, or significantly impairs any benefit of
the contract.
8. ____: ____. The question of a party’s good faith in the performance of a contract
is a question of fact.
9. Prejudgment Interest. Prejudgment interest accrues on the unpaid balance of
a liquidated claim from the date the cause of action arose until the entry of
judgment.
10. ____. A claim is liquidated when there is no reasonable controversy as to the
plaintiff’s right to recover and the amount of such recovery; there must be no
dispute as to the amount due and to the plaintiff’s right to recover.
Appeal from the District Court for Douglas County: JameS t.
GLeaSon, Judge. Affirmed in part, and in part reversed.
James E. Harris and Britany S. Shotkoski, of Harris Kuhn
Law Firm, L.L.P., for appellants.
436 	282 NEBrASKA rEPorTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

Matthew D. Hammes and Michelle D. Epstein, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellees.
H eavICan, C.J., C onnoLLy, G eRRaRd, StepHan, mCC oRmaCK,
and mILLeR-L eRman, JJ.
StepHan, J.
This is an appeal from an order granting summary judgment
in a breach of contract action. The primary issue is whether
an attorney and/or a law firm is liable on a contract negotiated
on behalf of a client when the contract provides that both the
client and the attorney “agree to and will pay” a certain sum
of money and the attorney signs the contract under the legend
“Agreed to in Form & Substance.” We conclude that neither the
attorney nor the firm is liable but otherwise affirm the order
granting summary judgment.
I. FACTS
ronald “Tim” Bacon was injured on July 28, 2003, while
working at a construction site. Kiewit Construction Company
(Kiewit) was the general contractor on the site, and Bacon was
employed by subcontractor Davis Erection. ridgetop Holdings,
Inc. (ridgetop), is the parent company of Davis Erection.
Liberty Mutual Insurance Group (Liberty Mutual) insured
Kiewit under a commercial liability policy. Liberty Mutual
also insured Davis Erection under a workers’ compensation
policy. The two policies bore separate policy numbers and had
separate named insureds. rSUI Indemnity Company (rSUI)
insured Kiewit under a separate liability policy.
After his accident, Bacon filed a lawsuit in the district court
for Douglas County against Kiewit, Liberty Mutual, Davis
Erection, and ridgetop. Harris Kuhn Law Firm, LLP (Harris
Kuhn), and attorneys James E. Harris and Britany Shotkoski of
that firm represented Bacon in the lawsuit. Prior to trial, Kiewit
and Bacon entered into a settlement in which Kiewit agreed to
pay Bacon a specified sum in full and final settlement of his
claims in exchange for a release. The settlement agreement
provided in relevant part:
[I]n the event BACoN obtains a settlement with ridgetop
. . . or judgment against rIDGEToP, BACoN and his
rSUI INDEMNITy Co. v. BACoN 	437
Cite as 282 Neb. 436

attorneys, . . . Harris and . . . Shotkowski [sic], agree
to and will pay to KIEWIT and/or its insurer(s) a sum
of money up to a total sum of Seven Hundred Fifty
Thousand 	and 	00/100 	($750,000.00) 	from 	any 	such
settlement with rIDGEToP or final judgment against
rIDGEToP, by paying to KIEWIT 50% (1/2) of the
first Five Hundred Thousand and 00/100 ($500,000.00)
obtained by BACoN in settlement with rIDGEToP or
final judgment against rIDGEToP and 25% (1/4) of any
monies obtained in excess of Five Hundred Thousand and
00/100 ($500,000.00) obtained by BACoN in settlement
with rIDGEToP or final judgment against rIDGEToP,
up to the total reimbursable amount of Seven Hundred
Fifty Thousand and 00/100 ($750,000.00). BACoN fur-
ther agrees that any payment owed by BACoN to KIEWIT
pursuant to the terms of this paragraph will be made by
BACoN in cash or its equivalent as soon as possible, and
not to exceed seven (7) days, after receipt of good funds
from rIDGEToP, unless such time is extended by agree-
ment of the parties.
In a section entitled “Worker’s Compensation,” the settlement
agreement stated that Liberty Mutual had advised the par-
ties that it “did not believe” it would be asserting an interest
in any settlement proceeds obtained by Bacon from either
Kiewit or ridgetop. Although the agreement contemplated
the receipt of written verification from Liberty Mutual to this
effect, it was executed prior to this occurring and it appears
from the record that no written verification ever occurred. The
settlement agreement further provided that “notwithstanding”
Liberty Mutual’s advisement and anticipated written verifi-
cation, Bacon agreed to defend and indemnify Kiewit “with
respect to any claim or suit which is or may be made by
Liberty Mutual . . . as the workers’ compensation insurer for
Davis Erection.”
The settlement agreement contained the notarized signatures
of Bacon and a Kiewit representative. Harris signed the agree-
ment under the legend “Agreed to in Form & Substance,” and
Kiewit’s attorney did likewise. The attorneys’ signatures were
not notarized.
438 	282 NEBrASKA rEPorTS

on August 23, 2007, rSUI issued a draft payable to Bacon
and his attorneys at Harris Kuhn. on August 29, Liberty
Mutual issued a draft which was also payable to Bacon and
Harris Kuhn. These payments were made by the insurers on
behalf of Kiewit pursuant to the settlement agreement. The
payments were deposited into Harris Kuhn’s trust account.
Bacon, represented by Harris and Harris Kuhn, then began
settlement 	negotiations 	with 	ridgetop. 	The 	negotiations
became complicated when Liberty Mutual claimed an inter-
est in any amount Bacon received from ridgetop. Liberty
Mutual eventually conceded that it had no subrogation right
to any amount obtained by Bacon from ridgetop, but insisted
that it was entitled to a statutory credit against its future
workers’ compensation benefit payments to Bacon based on
any amount Bacon obtained from ridgetop.1 Bacon ultimately
settled with ridgetop and received $1.25 million. At the time
Bacon obtained the money from ridgetop, the validity of
Liberty Mutual’s claim for a future statutory credit had not
been resolved.
rSUI and Liberty Mutual filed this breach of contract action
after Bacon received the proceeds of the ridgetop settlement
but refused to make payment to them under the terms of the
Kiewit settlement agreement. The district court granted sum-
mary judgment in favor of rSUI and Liberty Mutual and
found Bacon, Harris, and Harris Kuhn liable in the amount of
$437,500 plus prejudgment interest. Bacon, Harris, and Harris
Kuhn filed this timely appeal.
II. ASSIGNMENTS oF Error
Bacon, Harris, and Harris Kuhn assign, restated and con-
solidated, that the district court erred in (1) finding that Harris
and Harris Kuhn were personally liable on the settlement
agreement, (2) granting summary judgment in favor of rSUI
and Liberty Mutual, (3) requiring Bacon to indemnify Liberty
Mutual against its own intentional acts, (4) calculating the
amount owed under the settlement agreement, and (5) finding
1 See Neb. rev. Stat. § 48-118 (reissue 2010).
rSUI INDEMNITy Co. v. BACoN 	439
Cite as 282 Neb. 436

that the amount owed under the settlement agreement was a
liquidated amount and awarding prejudgment interest.
III. STANDArD oF rEVIEW
[1] 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 that party the benefit of all
reasonable inferences deducible from the evidence.2
[2] Whether prejudgment interest should be awarded is
reviewed de novo on appeal.3
IV. ANALySIS
1. H aRRIS and H aRRIS KUHn H ave
no peRSonaL LIabILIty
The district court found that rSUI and Liberty Mutual were
entitled to summary judgment and that they could recover from
Bacon, Harris, or Harris Kuhn. Harris and Harris Kuhn argue
that even if the Kiewit settlement agreement was breached as a
matter of law, they cannot be personally liable for the amounts
due, because they acted solely as Bacon’s agent. They rely on
the general rule that an agent, acting for a disclosed principal,
is not liable for the principal’s contract.4
[3] While that is the general rule, an agent can become per-
sonally liable if “the agent purports to bind himself or herself,
or has otherwise bound himself or herself, to performance of
the contract.”5 Stated another way, an agent for a disclosed
principal is not liable on the contract “‘in the absence of some
other agreement to the contrary or other circumstances showing
that the agent has expressly or impliedly incurred or intended
2 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010); Bamford v.
Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).
3 Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d
433 (2010); Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701
(2008).
4 See, Broad v. Randy Bauer Ins. Agency, 275 Neb. 788, 749 N.W.2d 478
(2008); McGowan Grain v. Sanburg, 225 Neb. 129, 403 N.W.2d 340
(1987); Cargill Leasing Corp. v. Mueller, 214 Neb. 569, 335 N.W.2d 277
(1983).
5 Broad, supra note 4, 275 Neb. at 795, 749 N.W.2d at 483.
440 	282 NEBrASKA rEPorTS

to incur personal responsibility.’”6 The question before us is
whether the terms of the contract and/or the circumstances
of the deal showed that Harris and/or Harris Kuhn impliedly
incurred or intended to incur personal liability.
The Kiewit settlement agreement provides: “[I]n the event
BACoN obtains a settlement with ridgetop . . . BACoN
and his attorneys, . . . Harris and . . . Shotkowski [sic], agree
to and will pay to KIEWIT and/or its insurer(s) a sum of
money” according to the contractual formula. The agreement
also specifies that settlement drafts were to be payable to both
Bacon and “His Attorneys At Harris Kuhn.” rSUI and Liberty
Mutual argue that these contractual provisions, combined with
Harris’ signature on the settlement agreement, demonstrate
that Harris and the firm intended to incur personal liability on
the contract.
Although the contractual language refers to both Harris
and Shotkoski, rSUI and Liberty Mutual do not argue that
Shotkoski has any personal liability on the contract. We assume
this is because Shotkoski did not sign the agreement. The rule
in Nebraska is that signatures of the parties are not essential
to establish a binding contract if manifestation of mutual
assent is otherwise shown, unless there is a statute requiring a
signature or an agreement by the parties that a contract shall
not be binding until it is signed.7 Here, the settlement agree-
ment, at section 21, expressly states that it “shall not be effec-
tive . . . unless and until each party executes the original or
a counterpart.”
In light of this, Shotkoski cannot under any interpretation
of the contract be personally liable, and Harris and Harris
Kuhn cannot be personally liable unless Harris’ signature on
the “form and substance” block can be construed to bind him
and his firm personally. We conclude that under the circum-
stances of this case, particularly the nature of the signature
6 Cargill Leasing Corp., supra note 4, 214 Neb. at 572, 335 N.W.2d at 279,
quoting Koperski v. Husker Dodge, Inc., 208 Neb. 29, 302 N.W.2d 655
(1981).
7 In re Estate of Mathews, 134 Neb. 607, 279 N.W. 301 (1938); Coffey v.
Mann, 7 Neb. App. 805, 585 N.W.2d 518 (1998).
rSUI INDEMNITy Co. v. BACoN 	441
Cite as 282 Neb. 436

and the ambiguous contractual language, it cannot. Harris’
signature under the legend “Agreed to in Form & Substance”
demonstrates only that he was Bacon’s attorney and that “the
document [was] in the proper form and embodie[d] the deal
that was made between the parties.”8 Nothing about the sig-
nature indicates or implies an intent to incur personal liability
on the contract. Indeed, Kiewit’s attorney signed an identical
signature block even though no contractual language could be
construed to impose a personal obligation on Kiewit’s attorney.
In addition, the contractual language relied upon by rSUI and
Liberty Mutual is ambiguous, but at most governs the manner
by which payment under the contract was to be made, not the
parties which were to be liable for such payment.
rSUI and Liberty Mutual rely on Kalberg v. Gilpin Company.9
In that case, buyers executed a written offer to purchase a home
for the total price of $18,000. The contract required the buyers
to pay $1,500 in earnest money and provided that the remaining
$16,500 would be financed by first and second deeds of trust
through the real estate agency. The contract further provided
that if the financing could not be obtained, the earnest money
would be returned. The contract was signed by the buyers, the
seller, and an agent of the real estate company. Prior to closing,
the buyers were informed by the agency that there was a fee
for obtaining the deeds of trust and that the final amount due
was $18,800. The buyers refused to pay the additional $800
because it was not agreed to in the purchase contract. When the
seller and the agency refused to return the earnest money, the
buyers sued them both.
In resolving the dispute in favor of the buyers, the court noted
that the buyers had “proceeded properly in joining as defend-
ants both the seller-principal and his agent.”10 It reasoned:
Although it is generally true that an agent who discloses
the name of his principal to the persons with whom he is
dealing incurs no personal responsibility to such persons
8 Freedman v. Brutzkus, 182 Cal. App. 4th 1065, 1070, 106 Cal. rptr. 3d
371, 374 (2010).
9 Kalberg v. Gilpin Company, 279 S.W.2d 177 (Mo. App. 1955).
10 Id. at 181.
442 	282 NEBrASKA rEPorTS

on account of the transaction, there is an exception where
the contract or circumstances of the transaction discloses
a mutual intention to impose a personal responsibility on
the agent. Such intention appears in the written contract
here involved wherein the agent acknowledged receipt of
the $1,500 earnest money subject to a stipulation con-
tained on the reverse side of the contract that it would be
retained by the agent subject to certain conditions or until
the sale was consummated. Thus the agent was to hold
this payment as a stakeholder subject to being account-
able to both the seller and the buyers.11
We find Kalberg distinguishable from the instant case,
because in Kalberg, the real estate agent signed the contract
as a party and the contract contained express terms about the
agent’s duty to hold the money in escrow for the parties. Here,
both the contractual language and the import of Harris’ signa-
ture are much less clear, and we decline to find that general
agency principles can be displaced in such a situation. The
district court erred in finding that Harris and Harris Kuhn were
personally liable on the contract.
2. C ontRaCt bReaCHed aS matteR of L aw
(a) Plain Language of Contract
Bacon contends the district court also erred in finding the
settlement agreement was breached as a matter of law. He
argues that because Liberty Mutual continues to assert it is
entitled to a statutory credit against future workers’ compensa-
tion payments based on the amount of the ridgetop settlement,
the amount he will actually receive from ridgetop is unknown,
and that thus, the amount owed to Kiewit under the settlement
agreement is also unknown. In essence, Bacon interprets the
Kiewit agreement to apply to only the “‘net’” of any amounts
he receives from a settlement with ridgetop.
[4] The plain language of the settlement agreement refutes
Bacon’s argument. The agreement provides that if Bacon
“obtain[ed]” a settlement or judgment against ridgetop, a
sum of money calculated pursuant to the contractual formula
11 Id.
rSUI INDEMNITy Co. v. BACoN 	443
Cite as 282 Neb. 436

was to be paid to Kiewit “and/or its insurer(s).” The agree-
ment on its face does not require payment to Kiewit from the
“net” received by Bacon from ridgetop; it requires payment
from any settlement or judgment “obtain[ed]” from ridgetop.
When the terms of a contract are clear, a court may not resort
to rules of construction, and the terms are to be accorded their
plain and ordinary meaning as an ordinary or reasonable person
would understand them.12
According to the clear, plain, and ordinary meaning of the
contractual language, once Bacon settled with ridgetop and
obtained money from that settlement, the contractual formula
was triggered. The record shows that Bacon received $1.25
million from ridgetop, and application of the contractual for-
mula establishes as a matter of law that Bacon owes Kiewit
and/or its insurers $437,500.
(b) Implied Covenant of Good Faith
and Fair Dealing
Bacon also argues that summary judgment is improper
because genuine issues of material fact exist as to whether
Liberty Mutual violated the implied covenant of good faith and
fair dealing in the Kiewit settlement agreement. We note that
Bacon does not assert that rSUI violated this covenant.
[5-8] The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties to
the contract do anything which will injure the right of another
party to receive the benefit of the contract.13 The nature and
extent of an implied covenant of good faith and fair dealing is
measured in a particular contract by the justifiable expectations
of the parties.14 Where one party acts arbitrarily, capriciously,
or unreasonably, that conduct exceeds the justifiable expec-
tations of the second party.15 A violation of the covenant of
12 Thrower v. Anson, 276 Neb. 102, 752 N.W.2d 555 (2008); Peterson v. Ohio
Casualty Group, 272 Neb. 700, 724 N.W.2d 765 (2006).
13 Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003); Reichert
v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519 (2002).
14 Spanish Oaks, supra note 13.
15 Id.
444 	282 NEBrASKA rEPorTS

good faith and fair dealing occurs only when a party violates,
nullifies, or significantly impairs any benefit of the contract.16
The question of a party’s good faith in the performance of a
contract is a question of fact.17
Bacon asserts Liberty Mutual violated the implied cov-
enant of good faith and fair dealing when it asserted its right
to a statutory credit against the settlement that he reached
with ridgetop. For this argument to have merit, we would
have to impute Liberty Mutual’s action in its capacity as
Davis Erection’s workers’ compensation carrier to Liberty
Mutual’s action in its capacity as the insurer for Kiewit. Even
assuming that this would be proper, the express terms of the
settlement agreement negate Bacon’s argument. The settle-
ment agreement states that at the time the parties entered into
the agreement, they were aware of the possibility that Liberty
Mutual could assert an interest, based on its prior workers’
compensation payments, in any proceeds Bacon obtained from
ridgetop. According to the settlement agreement, although
Liberty Mutual had indicated it would not seek to enforce such
an interest, the parties understood that Liberty Mutual had not
expressly stated that it would not do so. And Bacon expressly
assumed the risk of Liberty Mutual asserting its interest.
Liberty Mutual could not, as a matter of law, have violated a
covenant of good faith and fair dealing in later asserting an
interest in the ridgetop settlement when all parties knew at the
time the settlement agreement was entered into that there was
a possibility that Liberty Mutual would act as it did, and the
settlement agreement clearly placed that risk on Bacon. The
district court did not err in finding no reasonable fact finder
could conclude that Liberty Mutual’s actions with respect to
its workers’ compensation setoff credit violated an implied
covenant of good faith and fair dealing in the Kiewit settle-
ment agreement.
We note that after this appeal was submitted, both parties
filed motions requesting that this court take judicial notice of
16 Id.
17 Id.; Strategic Staff Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d 230
(2000).
rSUI INDEMNITy Co. v. BACoN 	445
Cite as 282 Neb. 436

activity in related proceedings. A February 3, 2011, order of
the district court for Douglas County granted Liberty Mutual
summary judgment on its claim that it was entitled to a statu-
tory credit against future workers’ compensation claims for
the amounts Bacon obtained in the ridgetop settlement. Even
though this issue has now been resolved, it still does not affect
the total amount Bacon obtained as a result of the ridgetop
settlement. Instead, Liberty Mutual has a credit against future
workers’ compensation payments based on the amount of the
ridgetop settlement. Bacon is thus affected only to the extent
that this credit affects the amount of the weekly workers’ com-
pensation he receives from Liberty Mutual in its capacity as the
workers’ compensation carrier for Davis Erection.
(c) Subrogation Against own Insured
Bacon also makes a complicated argument based on the prem-
ise that an insurer cannot subrogate against its own insured.18
Generally, he contends that the liability policy that Liberty
Mutual issued to Kiewit was part of an “owner-controlled”
insurance policy and included both Davis Erection and Bacon,
as an employee of Davis Erection, as additional insureds. He
contends that because Liberty Mutual owed Bacon as an addi-
tional insured under the same policy the same duty it owed
Kiewit, Liberty Mutual cannot recover against Bacon on the
settlement agreement because it has no right of subrogation
against its own insured.
But the fact that Davis Erection and Bacon were additional
insureds under Liberty Mutual’s liability policy means only
that if one or both of them had engaged in negligent acts and
been found liable to another, those acts would have been cov-
ered by the liability policy. It does not mean, and cannot mean,
that because Bacon was injured by the negligent acts of another
entity which was also covered by the liability policy, Liberty
Mutual owed no duty to him to pay for that negligence.
Even if this premise were sound, it would have no applica-
tion in this case. Here, Liberty Mutual seeks only to enforce
18 See Control Specialists v. State Farm Mut. Auto. Ins. Co., 228 Neb. 642,
423 N.W.2d 775 (1988).
446 	282 NEBrASKA rEPorTS

the contractual rights it obtained through the settlement agree-
ment. It is not subrogating against Bacon, in that it is not
claiming that Bacon owes money to it because it paid an
obligation on his behalf. The mere fact that Bacon is the other
party to the contractual agreement does not make this a subro-
gation action.
(d) No Hindrance or Delay
Bacon also argues that Liberty Mutual’s actions hindered or
delayed his ability to enter into a settlement with ridgetop, and
he implies that this then released him from the obligation under
the Kiewit settlement agreement. But even if Liberty Mutual’s
decision to seek an interest in the ridgetop settlement delayed
Bacon’s receipt of that settlement money, it is undisputed that
he ultimately received it. In this action, rSUI and Liberty
Mutual are not arguing that they are entitled to any damages
due to any delay in the finalization of the settlement between
Bacon and ridgetop. Instead, their sole contention is that once
Bacon “obtain[ed]” money from ridgetop due to settlement,
the formula of the settlement agreement was triggered and he
owed Kiewit, and/or rSUI and Liberty Mutual, the stipulated
contractual amount. There are therefore no relevant issues of
fact about any delay in obtaining the ridgetop settlement. The
settlement agreement between Kiewit and Bacon was enforce-
able as a matter of law, and the district court did not err in
finding it to be so.
3. pReJUdGment I nteReSt pRopeR
[9,10] Bacon argues the district court erred in awarding pre-
judgment interest. Prejudgment interest accrues on the unpaid
balance of a liquidated claim from the date the cause of action
arose until the entry of judgment.19 A claim is liquidated when
there is no reasonable controversy as to the plaintiff’s right
to recover and the amount of such recovery; there must be
no dispute as to the amount due and to the plaintiff’s right
to recover.20
19 Neb. rev. Stat. § 45-103.02(2) (reissue 2008).
20 See, Dutton-Lainson Co., supra note 3; Archbold, supra note 3.
rSUI INDEMNITy Co. v. BACoN 	447
Cite as 282 Neb. 436

Here, the amount due to rSUI and Liberty Mutual is clear;
based on the formula of the settlement agreement, when Bacon
obtained the $1.25 million settlement from ridgetop, he was
obligated to pay Kiewit and/or its insurers $437,500. The evi-
dence thus furnishes a basis for computing an exact amount
determinable without opinion or discretion.21 None of Bacon’s
excuses or justifications for not paying the amount when it
came due are either legally persuasive or meritorious. once
Bacon obtained the funds from the ridgetop settlement, there
was no reasonable controversy as to rSUI and Liberty Mutual’s
right to recover the amount owed on the Kiewit settlement. We
conclude on de novo review that the district court did not err in
awarding prejudgment interest.
V. CoNCLUSIoN
The settlement agreement is clear and unambiguous and
required payment to Kiewit based on the contractual formula
once proceeds were obtained by Bacon from ridgetop. The
record is clear that $1.25 million was obtained from ridgetop,
and application of the contractual formula shows that $437,500
is due on the contract. This is not a subrogation action, and
nothing about Liberty Mutual’s subsequent assertion of an
interest in the proceeds of the ridgetop settlement affects the
terms of the Kiewit settlement.
The amount due on the settlement agreement is liquidated
because it can be readily determined, and there is no reason-
able controversy as to rSUI and Liberty Mutual’s right to
enforce the contract. However, the district court erred in find-
ing Harris and Harris Kuhn personally liable on the contract.
We reverse that portion of the judgment but affirm in all
other respects.
affIRmed In paRt, and In paRt ReveRSed.
wRIGHt, J., not participating.
21 See Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465
(1993).
448 	282 NEBrASKA rEPorTS