Nerison v. National Fire Ins. Co. of Hartford

Gary G. N erisoN, appellaNt , v . NatioNal F ire iNsuraNce
compaNy oF H artFord , also kNowN as NFic oF
H artFord , also kNowN as cNa F iNaNcial
corporatioN, et al ., appellees .
757 N.W.2d 21
Filed October 28, 2008. 	No. A-08-118.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (1) the compensation court
acted without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is no sufficient competent evidence in the record to
warrant the making of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
2. ____: ____. Upon appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
4. Workers’ Compensation: Jurisdiction: Statutes. As a statutorily created court,
the Workers’ Compensation Court is a tribunal of limited and special jurisdiction
and has only such authority as has been conferred on it by statute.
5. Workers’ Compensation: Employer and Employee: Negligence. An employee
cannot normally maintain a negligence suit against his or her employer regarding
an injury arising out of and in the course of employment; his or her sole remedy
is a claim for workers’ compensation.
6. Workers’ Compensation. A basic principle underlying the Nebraska Workers’
Compensation Act is that only employees are entitled to workers’ compensa-
tion benefits.
7. Workers’ Compensation: Jurisdiction: Equity. The Workers’ Compensation
Court does not have general equitable jurisdiction.
8. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admission is a
formal act done in the course of judicial proceedings which is a substitute for
evidence, thereby waiving or dispensing with the production of evidence by
conceding for the purpose of litigation that the proposition of fact alleged by the
opponent is true.
9. Pleadings: Evidence. Formal acts that may operate as judicial admissions include
statements made in pleadings, and the rule of evidence is that matters contained
in pleadings are judicial admissions insofar as the adversary is concerned.
10. Workers’ Compensation: Appeal and Error. Neb. Rev. Stat. § 48-185 (Reissue
2004) precludes an appellate court’s substitution of its view of the facts for that of
the Workers’ Compensation Court if the record contains sufficient evidence to sub-
stantiate the factual conclusions reached by the Workers’ Compensation Court.
Appeal from the Workers’ Compensation Court. Affirmed.
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	161
Cite as 17 Neb. App. 161
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

John C. Fowles, of The Fowles law Office, P.C., l.l.O.,
for appellant.
Joseph F. Gross, Jr., of Timmermier, Gross & Prentiss, for
appellees.
iNbody, Chief Judge, and moore and cassel, Judges.
moore, Judge.
i. iNTROdUCTiON
Gary G. Nerison filed a petition with the Nebraska Workers’
Compensation Court against National Fire insurance Company
of hartford (National Fire), also known as NFiC of hartford,
also known as CNA Financial Corporation (collectively CNA);
Associated Contract Truckmen, inc. (ACT); and AMS Staff
leasing, inc.; AMS Staff leasing, N.A., inc.; AMS Staff
leasing, N.A., ltd.; AMS Construction Company, inc.; and
e.A.W., inc. (collectively AMS). Nerison, a self-employed
truckdriver, sought benefits in connection with his work-related
accident and injury. After the court dismissed Nerison’s peti-
tion, Nerison appealed to the three-judge review panel of the
compensation court, which entered an order of affirmance on
review. Nerison then appealed to this court. Because we find
no error, we affirm.
ii. BACKGROUNd
Because of the rather tangled web of contractual relation-
ships between the defendants in this case, we first provide
some general information about the nature of those relation-
ships before providing more detailed information concerning
Nerison’s relationship to the various defendants and the acci-
dent and injury which prompted this action.
1. relatioNsHip betweeN ams aNd cNa
AMS is a professional employer organization headquar-
tered in dallas, Texas. AMS enters into contracts with client
companies to provide services including preparation of pay-
roll, tax withholding, and workers’ compensation insurance
coverage. Under the staff leasing agreements entered into
between AMS and a client company, the employees of the
162 	17 NeBRASKA APPellATe RePORTS

client company would be considered coemployees of AMS and
the client company.
National Fire is part of a group of insurance companies with
a service mark of “CNA,” headquartered in Chicago, illinois,
and organized under the laws of the State of Connecticut.
Throughout this opinion, we have referred to National Fire and
CNA collectively as “CNA,” except where necessary to distin-
guish between the two names.
AMS negotiated with CNA for the issuance of a workers’
compensation insurance policy, and a policy was issued for
the period of September 1, 2000, through September 1, 2001.
A new policy providing workers’ compensation insurance cov-
erage was issued for the period September 1, 2001, through
September 1, 2002. The 2001-02 CNA policy listed National
Fire as the insurance company and AMS as the named insured.
From September 1, 2001, through at least the date of Nerison’s
accident in June 2002, coemployees of AMS were covered by
this workers’ compensation policy with CNA.
2. relatioNsHip betweeN ams aNd act
ACT is a corporation with its principal place of business in
Oklahoma City, Oklahoma. ACT obtained permission under
Missouri law to form a group of truckdrivers so that the group
of truckdrivers could obtain workers’ compensation insurance
coverage. The truckdrivers were primarily independent owner-
operators who leased their trucks to various trucking com-
panies. Some trucking companies require that workers’ com-
pensation insurance coverage be purchased by independent
owner-operators. The trucking company would deduct monthly
premiums from settlements with owner-operators and then for-
ward the premiums to ACT.
in November 2000, david Brandert, the president of ACT,
commenced negotiations with Chris Polk of AMS. ACT needed
to find insurance for independent truckdrivers. A proposed staff
leasing agreement was sent to ACT. On November 15, Brandert
wrote Polk:
Thank you for faxing the [proposed staff leasing agree-
ment]. After reading it, i feel i should document the fact
that ACT is a group of self employed individuals who
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	163
Cite as 17 Neb. App. 161

have combined to purchase insurance on a group basis,
and as such are eligible to elect workers compensa-
tion under the sole proprietor election rules of a state
with jurisdiction.
AMS and ACT entered into a staff leasing agreement begin-
ning december 1, 2000. Another staff leasing agreement was
signed, which is dated december 1, 2001. ACT was to send
a list of owner-operators each month together with a monthly
payment due under the staff leasing agreements. Under the
staff leasing agreements, the rates for a self-employed person
are based upon payroll but the amount of the payroll is fixed
by each state.
3. relatioNsHip betweeN act aNd tsa
Truckers Service Association (TSA) is a nonprofit associa-
tion formed to provide insurance brokerage services for inde-
pendent truckers. True North Companies, l.l.C. (True North),
a group of insurance agencies, provides products to members
of TSA including various kinds of insurance. in August 2000,
True North agreed to purchase workers’ compensation insur-
ance coverage through ACT for members of TSA. A member of
TSA would pay the workers’ compensation insurance premium
to TSA, and TSA would then send a list of owner-operator
members to ACT with the monthly premium. ACT would then
forward a list to AMS with the premium. AMS would then pay
a monthly premium to CNA.
4. N erisoN N eeds iNsuraNce
Nerison is a self-employed semi-tractor truck owner who
leases the tractor and his services as a truckdriver to vari-
ous trucking companies. Nerison has lived in Nebraska City,
Nebraska, since February or March 2001.
in February 2002, Nerison began leasing his tractor and ser-
vices to a company that required him to have his own “physical
damage, bobtail,” and workers’ compensation insurance cover-
age. “Bobtail” insurance provides accident coverage when an
owner-operator is driving a tractor but is not pulling a trailer.
Prior to leasing to that company, Nerison had obtained physical
damage or collision insurance and bobtail insurance, but not
workers’ compensation insurance, through TSA.
164 	17 NeBRASKA APPellATe RePORTS

When Nerison needed to obtain his own workers’ com-
pensation insurance coverage, he again contacted TSA and
requested workers’ compensation insurance. TSA sent vari-
ous forms to Nerison’s residence in Nebraska City, which
forms Nerison completed and sent back. One of the forms
allowed monthly withdrawals or charges against his credit
card for workers’ compensation insurance premiums, and
another contained a statement indicating that Nerison was a
“self employer” who elected to be covered by workers’ com-
pensation insurance, was a member of ACT, and appointed
Brandert as his agent to execute and deliver all instruments
necessary or required in order to obtain or cancel a program of
group workers’ compensation coverage. deposition testimony
from Brandert shows that although a copy of the election
form was maintained by ACT, it was not forwarded to AMS
or CNA.
Nerison received a document titled “CeRTiFiCATe OF
iNSURANCe” with an issue date of January 24, 2002. The
certificate named Nerison as the insured party and showed
workers’ compensation coverage effective November 1, 2001,
with the insurer “NFiC of hartford” under the same policy
number as that of the workers’ compensation policy issued to
AMS by CNA. Nerison testified that once TSA sent back a cer-
tificate showing that he had workers’ compensation insurance,
the company he was leasing to was satisfied and he assumed
that TSA had done everything necessary to provide him with
coverage. Nerison subsequently received an updated certificate
from TSA indicating a different workers’ compensation insurer
effective August 1, 2002.
Nerison did not read any of the documents he received from
TSA, simply completing them and returning them to TSA.
Nerison testified that TSA did not explain to him the means by
which it would provide him with workers’ compensation insur-
ance. Nerison was not told that he was a member of ACT, and
nothing was mentioned about his being a coemployee under a
staff leasing agreement. From Nerison’s point of view, he was
just buying insurance from TSA to cover himself.
Nerison paid workers’ compensation premiums to TSA
through January 2003, when he began leasing to a trucking
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	165
Cite as 17 Neb. App. 161

company that provided its own workers’ compensation insur-
ance coverage to its drivers.
5. tHiNGs Fall apart
in February 2002, CNA decided to get out of the business of
insuring professional employer organizations and advised AMS
that the CNA policy would not be renewed on September 1.
AMS did not notify any of its clients, including ACT, that the
CNA policy would expire. Problems arose between CNA and
AMS, including the fact that AMS did not send CNA a com-
plete list of all its clients. For example, although AMS reported
ACT as a client company for the period of September 1, 2000,
to September 1, 2001, AMS did not list ACT as a client on
the monthly reports sent to CNA beginning September 2001.
Apparently, AMS stopped providing lists of its clients to CNA
altogether in February 2002.
On March 1, 2002, CNA wrote to AMS canceling the CNA
policy effective May 10. Although AMS received the March 1
letter, it did not give notice of the cancellation to its clients.
litigation ensued between AMS and CNA. A settlement agree-
ment was reached under which CNA was to withdraw its can-
cellation of the CNA policy and AMS was to formally cancel
all policies with CNA as of June 20. The required cancellation
letter was written by AMS to CNA on May 1.
Again, AMS did not notify its client companies that work-
ers’ compensation insurance coverage under the CNA policy
would end as of June 20, 2002. AMS sought other insurance
coverage, but on June 20, AMS had no workers’ compensa-
tion insurance. The owner of AMS later purchased a Texas
insurance company, which issued a policy providing workers’
compensation insurance coverage to AMS. The policy from
this company was issued in August 2002 but was backdated so
as to provide coverage beginning June 20.
On June 27, 2002, AMS wrote a letter informing ACT of
CNA’s decision to cancel the workers’ compensation program.
The letter stated, in relevant part:
Your workers’ compensation insurance program was
issued through CNA. CNA decided to cancel your work-
ers[’] compensation program. The cancellation notice will
166 	17 NeBRASKA APPellATe RePORTS

be effective July 1, 2002. The cancellation of the program
will be effective July 31, 2002. Based on CNA’s unfor-
tunate action, we must cancel our [staff leasing] contract
with you. This letter shall serve as our 60-day notice of
cancellation.
The letter also noted that AMS was attempting to finalize an
alternative to the CNA program. ACT did not receive the letter
until July 19 because the letter was sent to an old address. in
the meantime, on June 19, ACT sent AMS a check in payment
of the May amount due under the december 2001 staff leas-
ing agreement, and ACT submitted a list of owner-operators
with the check. On July 19, 2002, Brandert at ACT was in the
process of writing a similar check for June. Upon receiving the
June 27 letter, Brandert destroyed the June check and did not
send AMS a list of employees. ACT attempted to contact AMS
after receiving the letter but was unable to speak with anyone
at AMS.
Although TSA or True North sent the premium for the
month of June 2002 to ACT, ACT did not send the June pay-
ment, due on July 20, to AMS. ACT notified True North and
TSA that there was no insurance coverage, and True North was
able to obtain alternate insurance coverage for TSA members
beginning August 1.
AMS sent ACT a letter dated August 9, 2002, indicating that
if ACT wished to have AMS coverage for June and July, AMS
had to receive payment within 48 hours from the date of the
letter, and stating that coverage in all cases concluded on July
31. ACT did not remit payments due under the december 2001
staff leasing agreement for June and July 2002.
6. N erisoN’ s accideNt
On June 14, 2002, Nerison was driving his truck from
Chicago to houston, Texas, when he had mechanical prob-
lems. Nerison contacted a towing company to bring him and
his truck to a repair facility in Morgan, illinois. en route to
Morgan, the tow truck was in an accident with another truck,
and Nerison suffered injuries for which he claims workers’
compensation benefits.
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	167
Cite as 17 Neb. App. 161

Nerison reported his injury to ACT. ACT authorized medi-
cal treatment and paid indemnity benefits. in approximately
January 2004, ACT stopped paying benefits to Nerison and
refused to pay further benefits, including outstanding medi-
cal expenses.
7. N erisoN F iles suit
Nerison filed a petition for benefits in the compensation
court in May 2004 and an amended petition on September
7, 2005. in the amended petition, Nerison set forth general
allegations about the relationships between the parties and the
details of his accident and injury before outlining four theories
of liability.
Under the first theory of liability, Nerison alleged that
through at least June 19, 2002, he was a coemployee of ACT
and consequently of AMS, which had a workers’ compensa-
tion insurance policy with CNA. Nerison alleged that he was
therefore entitled to workers’ compensation benefits from ACT,
AMS, and CNA by virtue of this employment relationship.
Nerison next alleged, as his second theory of liability, that
he was a self-employed individual who was essentially paying
his own workers’ compensation insurance premiums. Nerison
stated that he received a certificate evidencing insurance cov-
erage with CNA. Nerison alleged that CNA, AMS, and ACT
knew, or should have known, Nerison would rely on the insur-
ance certificate and payment of his premiums and believe he
had workers’ compensation coverage through CNA and that he
was thus entitled to benefits from ACT, AMS, and CNA.
Under his third theory of liability, Nerison alleged that he
was a beneficiary to the agreement between ACT and AMS
which made independent owner-operators employees of ACT
and coemployees of AMS for purposes of workers’ compensa-
tion coverage. Nerison alleged that AMS breached that agree-
ment in various specified ways and that he was entitled to all
contractual remedies that ACT would have had against AMS,
including continuation of the coemployment relationship and
the right to workers’ compensation insurance and benefits from
AMS and its insurer, CNA.
Finally, Nerison alleged under his fourth theory of liabil-
ity that he entrusted and paid premiums to ACT to maintain
168 	17 NeBRASKA APPellATe RePORTS

workers’ compensation coverage on his behalf for the time
period in which he was paying premiums. Nerison asserted that
in the event the court found that CNA and AMS were not obli-
gated to provide workers’ compensation benefits to him, ACT
was obligated to provide such benefits because of its fiduciary
responsibility to Nerison.
Nerison sought a determination of the rights and liabilities
of the parties and of his loss of earning capacity; an award
of such benefits as he may be entitled to under the Nebraska
workers’ compensation law, including payment of past and
future medical expenses and temporary total and permanent
partial disability benefits; and an award of attorney fees.
8. trial court proceediNGs aNd ruliNG
Trial was held before a single judge of the compensation
court on February 7, 2006, with additional evidence being
received on May 30. The trial judge received exhibits which
included medical records relating to Nerison’s accident and
injury, depositions of representatives of the parties, and docu-
mentary evidence concerning the relationships between the
parties. The judge also heard testimony from Nerison.
The trial judge entered an order of dismissal on January 30,
2007. After outlining the detailed factual background of this
case, the judge addressed the question of what jurisdiction,
if any, the compensation court had over the various claims
set forth in Nerison’s amended petition. The judge outlined
certain case law and legislative history and concluded that the
compensation court in general has jurisdiction to determine the
existence of workers’ compensation coverage and that accord-
ingly, the court had jurisdiction in this case to decide the claim
against CNA.
in considering the merits of Nerison’s claim against CNA,
the trial judge first reviewed Neb. Rev. Stat. § 48-115(10)
(Cum. Supp. 2000). The judge stated:
The provision [in § 48-115(10)] for a self-employed
person to be eligible for workers’ compensation bene-
fits or coverage was added to the Nebraska Workers’
Compensation 	Act, 	§ 	48-115[,] 	in 	1984 	when 	the
[l]egislature adopted lB776. There is little legislative
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	169
Cite as 17 Neb. App. 161

history but the introducer’s statement shows that the indi-
vidual would have to be engaged in business on a substan-
tially full-time basis and file a written notice of election
with the insurer.
in this case, CNA issued a policy of insurance to AMS.
ACT was a client of AMS, although the only purpose
of being a client was to obtain workers’ compensation
coverage through AMS, and then through CNA. AMS
did not do any payroll for . . . Nerison or any other truck
owner/operator. One wonders how CNA could determine
the premiums due when premiums were based upon pay-
roll and the payroll wasn’t done by AMS. The statu[t]e is
specific and the statement of the introducer of the legis-
lation is specific in that the insurer must have a written
notice of election. in this case, CNA had no notice that
. . . Nerison was a self-employed truck owner/operator.
The appointment of . . . Brandert as an attorney or agent
to prepare and file any necessary papers is insufficient,
especially when . . . Brandert failed to supply AMS and/or
CNA (National Fire insurance Company of hartford) with
the necessary notice of election. Finally, and more impor-
tantly, the premiums for the month of June 2002 . . . were
not paid to AMS and/or CNA.
This is an unfortunate case where an individual owner
of a business, in this case a truck owner/operator, pur-
chases workers’ compensation insurance but due to the
failure of so many intermediaries to properly perform
their duties[, Nerison] was not covered by CNA for his
injuries suffered on June 14, 2002.
The 	trial 	judge 	also 	addressed 	whether 	the 	court 	had
jurisdiction to decide the claim against AMS or ACT. The
judge stated:
The claims against AMS and/or ACT are the equivalent
of . . . claims against an insurance agent for failure to
procure insurance. These claims are not within the juris-
diction of the Nebraska Workers’ Compensation Court.
The claims have nothing to do with insurance coverages
but rather are in the nature of a breach of contracts case
and/or negligen[ce]. Cases involving a breach of contract
170 	17 NeBRASKA APPellATe RePORTS

and/or negligence require a jury trial. The Nebraska
Workers’ Compensation Act does not provide for jury
trials. This Court does not have jurisdiction of any claims
against ACT or AMS.
9. review paNel proceediNGs aNd ruliNG
Nerison filed an application for review on February 7, 2007.
The review panel entered an order of affirmance on review
on January 8, 2008. The review panel reviewed the trial judge’s
findings with respect to § 48-115(10) and agreed that the evi-
dence did not support a conclusion that Nerison or any person
or entity on his behalf filed an election for coverage on his
behalf with any insurance company. The review panel con-
cluded accordingly that Nerison did not comply with a manda-
tory requirement to elect to bring himself within the provisions
of the Nebraska Workers’ Compensation Act.
The review panel then reviewed the trial judge’s findings
with respect to Nerison’s claims against AMS and ACT. The
review panel agreed with the trial judge that Neb. Rev. Stat.
§ 48-161 (Reissue 2004) does not confer jurisdiction on the
compensation court to determine claims in equity or causes of
action based in negligence. The review panel stated:
The language of § 48-161 regarding “jurisdiction to decide
any issue ancillary to the resolution of an employee’s
right to workers’ compensation benefits” has been limited
to determination of employment status as between two
employers or disputes between two insurance companies
regarding 	“aggravation” 	versus 	“recurrence” 	claims.
even within [Schweitzer v. American Nat. Red Cross,
256 Neb. 350, 591 N.W.2d 524 (1999)], the Supreme
Court restated[,] “A statutorily created court, such as the
Workers’ Compensation Court, has only such authority
as has been conferred by statute, and its power cannot
extend beyond that expressed in the statute.”
The review panel found that the judgment was based on find-
ings of fact which were not clearly wrong and that no error of
law appeared. The review panel affirmed the order of dismissal
entered by the trial judge. Nerison subsequently perfected his
appeal to this court.
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	171
Cite as 17 Neb. App. 161

iii. ASSiGNMeNTS OF eRROR
Nerison asserts, consolidated and restated, that the trial
judge erred in (1) failing to find him an employee of AMS or
ACT and (2) applying § 48-115(10).
iV. STANdARd OF ReVieW
[1-3] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2004),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation
court acted without or in excess of its powers; (2) the judg-
ment, order, or award was procured by fraud; (3) there is no
sufficient competent evidence in the record to warrant the mak-
ing of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598
(2007). Upon appellate review, the findings of fact made by the
trial judge of the compensation court have the effect of a jury
verdict and will not be disturbed unless clearly wrong. Id. An
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law. Id.
V. ANAlYSiS
1. N erisoN’ s secoNd , tHird , aNd F ourtH
tHeories oF liability
The trial judge concluded that the compensation court did
not have jurisdiction over Nerison’s claims against AMS and
ACT. We agree with this conclusion with respect to the sec-
ond, third, and fourth theories of liability set forth in Nerison’s
amended petition.
[4] Although, as a statutorily created court, the Workers’
Compensation Court is a tribunal of limited and special juris-
diction and has only such authority as has been conferred on
it by statute, Zach v. Nebraska State Patrol, 273 Neb. 1, 727
N.W.2d 206 (2007), under § 48-161, the compensation court
has “jurisdiction to decide any issue ancillary to the resolution
of an employee’s right to workers’ compensation benefits.”
(a) Second Theory of liability
Nerison’s second theory of liability essentially sets forth a
negligence claim. in addressing the claim set forth in Nerison’s
172 	17 NeBRASKA APPellATe RePORTS

second theory of liability, it will be helpful to review the
Nebraska Supreme Court’s decision in Schweitzer v. American
Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999). Rhonda
Schweitzer was an emergency health services worker who
brought an action in the district court against the American
National Red Cross (Red Cross) and the sponsor of a circus.
Schweitzer alleged that she was injured while working as a
direct employee of the Red Cross when she slipped on stairs
while assisting a circus patron. Schweitzer also alleged that she
was a statutory employee of the circus sponsor. in her petition,
Schweitzer set forth various allegations of negligence, includ-
ing that the Red Cross and the circus sponsor failed to pro-
vide her with workers’ compensation insurance coverage. The
district court granted summary judgment motions filed by the
defendants, finding that Schweitzer’s remedies were limited to
those available under the Workers’ Compensation Act.
On appeal, the Nebraska Supreme Court observed that the
act is an employee’s exclusive remedy against an employer for
an injury arising out of and in the course of employment and
stated that “[a]bsent any other allegations, a determination of
employee status under the Act is ordinarily sufficient for the
district court to end its analysis and dismiss a purported negli-
gence suit.” Schweitzer v. American Nat. Red Cross, 256 Neb.
at 356, 591 N.W.2d at 529. The Schweitzer court noted Neb.
Rev. Stat. § 48-145(3) (Reissue 1993), which provided (as does
its current version) that employers who failed to comply with
conditions regarding the maintenance of workers’ compensa-
tion coverage were “‘required to respond in damages to an
employee for personal injuries.’” 256 Neb. at 357, 591 N.W.2d
at 529. The court stated that such damages could be sought
in district court. The court stated that assuming Schweitzer
had employee status, the resolution of the question of whether
the defendants maintained proper insurance was determina-
tive of whether Schweitzer could continue to pursue her neg-
ligence action in the district court. Id. The court determined
that although the existence of insurance could be decided in
the compensation court, such jurisdiction was not exclusive,
and that on the facts of Schweitzer’s case, the issue should be
determined in the district court where the action was filed. Id.
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	173
Cite as 17 Neb. App. 161

Accordingly, the court reversed the district court’s determina-
tion that it lacked subject matter jurisdiction with respect to the
issue of the existence of insurance. Id.
[5,6] The ruling in Schweitzer illustrates that if an individual
is considered an employee of a particular company and if
that company has maintained workers’ compensation insur-
ance as required under the act, then any “negligence” claims
an employee might have for a work-related accident and injury
must be brought in the Workers’ Compensation Court. An
employee cannot normally maintain a negligence suit against
his or her employer regarding an injury arising out of and in
the course of employment; his or her sole remedy is a claim
for workers’ compensation. Skinner v. Ogallala Pub. Sch. Dist.
No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001). The difficulty
in the present case with Nerison’s bringing any “negligence”
claims in the Workers’ Compensation Court is the compensa-
tion court’s finding that Nerison was a self-employed indi-
vidual. A basic principle underlying the Nebraska Workers’
Compensation Act is that only employees are entitled to work-
ers’ compensation benefits. Gebhard v. Dixie Carbonic, 261
Neb. 715, 625 N.W.2d 207 (2001). in this case, rather than
finding that Nerison’s “negligence” claims were those of an
employee against an employer for failure to maintain work-
ers’ compensation insurance, the compensation court deter-
mined that Nerison’s claims against AMS and ACT were the
equivalent of claims against an insurance agent for failure to
procure insurance.
(b) Third Theory of liability
in his third theory of liability, Nerison alleged various
breaches by AMS of the contract between AMS and ACT
and alleged that he was entitled to all contractual remedies
of ACT against AMS. See Dawes v. Wittrock Sandblasting &
Painting, 266 Neb. 526, 667 N.W.2d 167 (2003) (Nebraska
Workers’ Compensation Act does not afford compensation
court jurisdiction to resolve contractual disputes between
employees and third-party insurers), disapproved on other
grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707
N.W.2d 229 (2005).
174 	17 NeBRASKA APPellATe RePORTS

(c) Fourth Theory of liability
[7] Finally, in his fourth theory of liability, Nerison raised
an equitable theory. The Workers’ Compensation Court does
not have general equitable jurisdiction. Dawes v. Wittrock
Sandblasting & Painting, supra.
(d) Conclusion
We find that the trial judge did not err in his conclusions
with respect to Nerison’s second, third, and fourth theories of
liability and that the review panel did not err in affirming this
portion of the order of dismissal.
2. N erisoN’ s F irst tHeory oF liability
Nerison asserts that the trial judge erred in failing to find
him an employee of AMS or ACT and applying § 48-115(10)
(concerning self-employed individuals) to bar his claims against
CNA. Nerison argues that pursuant to the december 2001 staff
leasing agreement, he was considered a coemployee of AMS
and ACT for workers’ compensation purposes, and, accord-
ingly, that it was error to apply § 48-115(10) to preclude his
recovery of benefits.
[8,9] Nerison’s petition contains a judicial admission that
he was a self-employed truckdriver. A judicial admission is a
formal act done in the course of judicial proceedings which is
a substitute for evidence, thereby waiving or dispensing with
the production of evidence by conceding for the purpose of
litigation that the proposition of fact alleged by the opponent
is true. Reicheneker v. Reicheneker, 264 Neb. 682, 651 N.W.2d
224 (2002). Formal acts that may operate as judicial admis-
sions include statements made in pleadings, and the rule of
evidence is that matters contained in pleadings are judicial
admissions insofar as the adversary is concerned. Ashland-
Greenwood Public Schools v. Thorell, 15 Neb. App. 114, 723
N.W.2d 506 (2006). Although Nerison also pled that he was a
coemployee of AMS for purposes of workers’ compensation
coverage, this allegation relates to the causes of action which
the compensation court correctly determined it had no jurisdic-
tion to decide.
Section 48-115, among other things, defines the terms
“employee” and “worker” for purposes of the Nebraska Workers’
NeRiSON v. NATiONAl FiRe iNS. CO. OF hARTFORd 	175
Cite as 17 Neb. App. 161

Compensation Act. Section 48-115(10) defines those terms to
include self-employed people who elect to bring themselves
within the provisions of the act and sets forth the requirements
for election of coverage under the act by such persons. The
version of § 48-115 in effect at the time of Nerison’s accident
and injury provided as follows:
For purposes of the act, employee or worker shall be con-
strued to mean:
. . . .
(10) each individual employer . . . or self-employed
person who is actually engaged in the individual employ-
er’s . . . or self-employed person’s business on a sub-
stantially full-time basis who elects to bring himself or
herself within the provisions of the Nebraska Workers’
Compensation Act. Such election is made if he or she
(a) files with his or her current workers’ compensa-
tion insurer written notice of election to have the same
rights as an employee only for purposes of workers’ com-
pensation insurance coverage acquired by and for such
individual employer . . . or self-employed person or (b)
gives notice of such election and such insurer collects
a premium for such coverage acquired by and for such
individual employer . . . or self-employed person. This
election shall be effective from the date of receipt by the
insurer for the current policy and subsequent policies
issued by such insurer until such time as such employer
. . . or self-employed person files a written statement
withdrawing such election with the current workers’ com-
pensation insurer or until such coverage by such insurer is
terminated, whichever occurs first.
(emphasis supplied.)
There are two additional significant facts supporting the
trial judge’s determination with respect to Nerison’s first
theory of liability. First, we note the fact that ACT did not
make the required payments to AMS under the december 2001
staff leasing agreement for June and July 2002. Accordingly,
Nerison’s status as a coemployee of AMS and ACT was in
question on the date of his accident. We make no determina-
tion as to what effect the coemployee provision in the staff
176 	17 NeBRASKA APPellATe RePORTS

leasing agreement would have had, if any, on the outcome in
this case in the event ACT had made the required payments.
Second, and perhaps more important, we note that the record
shows that the election document signed by Nerison was never
forwarded to AMS, let alone CNA, and that by the time of
Nerison’s accident, AMS was no longer remitting lists of its
client companies to CNA. Clearly, from CNA’s point of view,
there had been no election or other document showing that
Nerison was covered as a self-employed individual or as a
coemployee of AMS.
[10] The record in this case contains sufficient evidence
to support the trial judge’s conclusion that Nerison was self-
employed and that Nerison did not comply with § 48-115(10).
Section 48-185 precludes an appellate court’s substitution of
its view of the facts for that of the Workers’ Compensation
Court if the record contains sufficient evidence to substantiate
the factual conclusions reached by the Workers’ Compensation
Court. Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683,
696 N.W.2d 142 (2005). Accordingly, we find no error with
respect to the trial judge’s rulings as to Nerison’s first theory
of liability or with respect to the review panel’s affirmance of
that portion of the order of dismissal.
Vi. CONClUSiON
The review panel did not err in affirming the order of
dismissal.
aFFirmed .
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Cite as 17 Neb. App. 161