Harleysville Ins. Group v. Omaha Gas Appliance Co.

H arleysville insurance G roup, appellee , v. omaHa Gas
appliance co., doinG business as rybin plumbinG and
H eatinG, appellee , and victoria m. beck , personal
representative of tHe estate of nancy sacHs and
special administrator of tHe estate of
ricHard sacHs , intervenor-appellant.
772 N.W.2d 88
Filed September 18, 2009. 	No. S-07-1235.
1. Insurance: Contracts: Appeal and Error. The interpretation of an insurance
policy is a question of law, in connection with which an appellate court has an
obligation to reach its own conclusions independently of the determination made
by the trial court.
2. Standing: Jurisdiction: Parties: Judgments: Appeal and Error. Standing is a
jurisdictional component of a party’s case because only a party who has stand-
ing may invoke the jurisdiction of a court; determination of a jurisdictional issue
which does not involve a factual dispute is a matter of law which requires an
appellate court to reach an independent conclusion.
3. Interventions. An intervenor against whom a judgment has been rendered must
be accorded the rights which, under like circumstances, belong to any other
unsuccessful suitor.
4. ____. It is fundamental that an intervenor takes the action as he finds it and can-
not secure relief that is foreign or extraneous to the action.
5. ____. An intervenor cannot widen the scope of the issues, broaden the scope or
function of the proceedings, or raise questions which might be the subject of
litigation but which are extraneous to the controlling question to be decided in
the case.
6. Declaratory Judgments: Justiciable Issues. The requirements for a justiciable
controversy and a direct and legal interest in the controversy by the parties are no
less exacting in a case brought under the declaratory judgment statute than in any
other type of suit.
7. Courts: Jurisdiction. A determination with regard to ripeness depends upon the
circumstances in a given case and is a question of degree.
8. Insurance: Contracts. In construing an insurance contract, a court must give
effect to the instrument as a whole and, if possible, to every part thereof.
9. ____: ____. In situations involving the interplay between primary and umbrella
coverages, courts should examine the overall pattern of insurance and construe
each policy as a whole.
Appeal from the District Court for Douglas County: JoHn d.
H artiGan, Jr ., Judge. Affirmed.
Matthew D. Hammes and Ralph A. Froehlich, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., for intervenor-
appellant.
HARLeySvILLe INS. gRouP v. oMAHA gAS APPLIANCe Co. 	547
Cite as 278 Neb. 547
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

Dan H. Ketcham and Meredith J. Kuehler, of engles,
Ketcham, 	olson 	& 	Keith, 	P.C., 	for 	appellee 	Harleysville
Insurance group.
H eavican, c.J., WriGHt, connolly, stepHan, mccormack,
and miller-lerman, JJ.
mccormack, J.
I. NATuRe oF CASe
Nancy Sachs and Richard Sachs were allegedly killed by
carbon monoxide poisoning after omaha gas Appliance Co.,
doing business as Rybin Plumbing and Heating (Rybin), failed
to properly repair and maintain a gas boiler in their home.
victoria M. Beck is the personal representative of the estate of
Nancy Sachs and special administrator of the estate of Richard
Sachs, and in those capacities, she brought a negligence action
against Rybin. Rybin’s insurer, Harleysville Insurance group
(Harleysville), brought this declaratory judgment action against
Rybin alleging that pollution exclusions preclude coverage
for the alleged occurrence. Beck intervened in the declara-
tory judgment action and now appeals the summary judgment
entered in favor of Harleysville.
Beck alleges that the district court erred in failing to appre-
ciate 	the 	differences 	in 	the 	Harleysville 	policies 	between
“liability” caused by a pollutant and “injury” caused by a
pollutant. In response, Harleysville argues that Beck has no
standing to appeal in the declaratory judgment action because
Rybin chose not to appeal. We hold that Beck had standing
to appeal, but affirm the order of summary judgment in favor
of Harleysville.
II. FACTS
Rybin is in the business of plumbing, heating, and air
conditioning. The Sachses’ home was heated by radiators
connected to a gas boiler system, and Rybin repaired the
system after a fire occurred in the Sachses’ home. Rybin con-
ducted subsequent service checks on the boiler and eventually
replaced it in 2001. Thereafter, the Sachses both died. Beck
alleged that the Sachses’ deaths were caused by the original
boiler’s leaking carbon monoxide into the home and that
548 	278 NeBRASKA RePoRTS

Rybin had failed to conduct reasonable inspections of and
repairs to the boiler.
At the time of the alleged negligent acts, Rybin had general
liability and umbrella policies with Harleysville. The liability
policy provided that Harleysville would indemnify Rybin for
sums Rybin became obligated to pay as damages because of
“‘bodily injury’” “to which this insurance applies.” The gen-
eral liability policy contained a pollution exclusion endorse-
ment with “Limited Coverage for Pollution From a Hostile
Fire.” The endorsement was in effect at all relevant time peri-
ods and stated: “This insurance does not apply to . . . ‘[b]odily
injury’ or ‘property damage’ which would not have occurred
in whole or part but for the actual, alleged or threatened
discharge, dispersal, seepage, migration, release or escape
of pollutants at any time.” “‘Pollutants’” were defined as
“any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapor, soot, fumes, acids, alkalis, chemicals
and waste.”
The umbrella policy stated that Harleysville would pay on
behalf of Rybin the “‘ultimate net loss’ in excess of the ‘appli-
cable underlying limit’ which the insured becomes legally
obligated to pay as damages because of . . . ‘[b]odily injury’
. . . covered by this policy.” A limited pollution exclusion in
the umbrella policy provided that “[t]his insurance does not
apply to . . . [a]ny liability caused by pollutants excluded by
‘underlying insurance.’” This provision stated further that the
listed exceptions to the pollution exclusion outlined in the
umbrella policy were overridden by any broader exclusion in
the underlying policy. “‘underlying insurance’” was defined
so as to include the liability policy, any replacement or renewal
policies, and any other insurance available to the insured.
Harleysville’s complaint for declaratory judgment alleged
that due to the pollution exclusion in the general liability
policy and the total pollution exclusion endorsement on that
policy, Harleysville had “no duty to defend or indemnify or
provide any coverage whatsoever to Rybin in connection with
any claim . . . arising out of the alleged carbon monoxide expo-
sure.” The complaint did not specifically refer to the umbrella
policy, but it was attached as an exhibit.
HARLeySvILLe INS. gRouP v. oMAHA gAS APPLIANCe Co. 	549
Cite as 278 Neb. 547

Beck filed a motion asking for permission to intervene in
the declaratory judgment action and to be named as a party
defendant. The court granted leave to intervene. Thereafter, the
court granted Harleysville’s motion for summary judgment,
concluding that Harleysville did not have a duty to defend or
indemnify Rybin in its pending litigation with Beck because
carbon monoxide was a “pollutant” excluded from coverage.
Because Beck had not been notified of the summary judg-
ment proceedings, however, the court later vacated that order.
Harleysville again moved for summary judgment, and Beck
filed a cross-motion for summary judgment. In support of her
motion for summary judgment, Beck argued that the pollution
exclusion in the umbrella policy was distinct from the general
liability policy and did not bar coverage for the Sachses’ inju-
ries. Beck also asserted that Harleysville was estopped from
asserting any exclusion under the umbrella policy because it
did not specifically address that policy in its complaint for
declaratory judgment.
The court denied Beck’s motion for summary judgment
and again granted summary judgment in favor of Harleysville.
The court explained that the language of the umbrella policy
excluding coverage for “liability caused by pollutants” did
not indicate that the pollutant must be the sole cause of the
insured’s liability or that the application of the exclusion
depended on the underlying negligence of the insured. The
court also found no authority for the assertion that an insurer
must plead specific policy exclusions in a declaratory judg-
ment action.
Beck moved to alter or amend the summary judgment
order. Harleysville resisted, arguing, among other things, that
because Rybin did not challenge the summary judgment order,
Beck, as merely an intervenor, was unable to make any chal-
lenge. The court rejected this argument and found that Beck,
as an intervenor, was to be accorded the rights which, under
like circumstances, belong to any other unsuccessful suitor.1
But the court found that the motion otherwise lacked merit.
Beck appeals.
1 See Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).
550 	278 NeBRASKA RePoRTS

III. ASSIgNMeNTS oF eRRoR
Beck assigns that (1) the district court erred in determining
as a matter of law that the umbrella policy does not provide
coverage for Rybin’s negligent acts or omissions resulting in
the Sachses’ deaths and (2) Harleysville has waived its right
to assert an exclusion under the umbrella policy by failing to
plead any exclusion under the umbrella policy.
Iv. STANDARD oF RevIeW
[1] The interpretation of an insurance policy is a question of
law, in connection with which an appellate court has an obliga-
tion to reach its own conclusions independently of the determi-
nation made by the trial court.2
[2] Standing is a jurisdictional component of a party’s
case because only a party who has standing may invoke
the jurisdiction of a court; determination of a jurisdictional
issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach an indepen-
dent conclusion.3
v. ANALySIS
1. standinG
[3] We first address Harleysville’s jurisdictional arguments
relating to Beck’s standing before our court. Harleysville
asserts that Beck does not have standing to appeal because the
nonintervening party, Rybin, chose not to appeal. Alternatively,
Harleysville asserts that Beck cannot present any arguments
about the interpretation of the policies that were not also made
by Rybin. Harleysville apparently hopes to bind Beck by res
judicata to a judgment limiting her future ability to recover
against Harleysville and, at the same time, preclude her access
to the appellate courts to challenge that judgment. This we will
not do. As the trial court noted, an intervenor against whom
a judgment has been rendered must be accorded the rights
2 Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186, 738 N.W.2d 840 (2007).
3 County of Sarpy v. City of Gretna, 267 Neb. 943, 678 N.W.2d 740
(2004).
HARLeySvILLe INS. gRouP v. oMAHA gAS APPLIANCe Co. 	551
Cite as 278 Neb. 547

which, under like circumstances, belong to any other unsuc-
cessful suitor.4
[4] Harleysville’s reliance on State ex rel. Nelson v. Butler5
is misplaced. In Butler, we said: “An interven[o]r who is not
an indispensable party cannot change the position of the origi-
nal parties, or change the nature and form of the action or the
issues presented therein.”6 This proposition, however, does not
touch on the right to appeal an unfavorable judgment. The
proposition refers to the scope of the action before the trial
court and the fact that “it is fundamental that an intervenor
takes the action as he finds it and cannot secure relief that is
foreign or extraneous to the action.”7
[5] In other words, “[a]n interven[o]r cannot widen the
scope of the issues . . . [,] broaden the scope or function of
[the] proceedings . . . [,] or raise questions which might be
the subject of litigation but which are extraneous to the con-
trolling question to be decided in the case.”8 Thus, in Butler,
we held that the intervenors’ challenge to the constitutionality
of a legislative resolution improperly broadened the scope of
a mandamus action in which the original parties relied upon
the resolution’s validity.9 And in Arnold v. Arnold,10 we held
that the district court was correct in refusing to consider, in a
dissolution action, a series of law actions between the interven-
ing parents of the husband and the divorcing spouses based
on various promissory notes and debts alleged to be due to
the parents.
In this case, Beck did not seek to expand the scope of the
original declaratory judgment action. Beck did not seek, for
example, to litigate the underlying issues of negligence that
4 Kirchner v. Gast, supra note 1.
5 State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945).
6 Id. at 650, 17 N.W.2d at 691.
7 Arnold v. Arnold, 214 Neb. 39, 41, 332 N.W.2d 672, 674 (1983).
8 State ex rel. Nelson v. Butler, supra note 5, 145 Neb. at 650, 17 N.W.2d at
691 (citations omitted).
9 Id.
10 Arnold v. Arnold, supra note 7.
552 	278 NeBRASKA RePoRTS

were pending in another action. She merely presented alter-
native arguments for the resolution of the central question of
the declaratory judgment action—whether Harleysville’s policy
with Rybin excluded coverage in relation to Beck’s claims.
[6] We are aware that because the underlying negligence
action was not yet resolved at the time of declaratory judg-
ment, Beck’s subrogation interest, much like Harleysville’s
interest in resolving the issue of indemnification, depends
upon the ultimate success of that action. And the requirements
for a justiciable controversy and a direct and legal interest in
the controversy by the parties are no less exacting in a case
brought under the declaratory judgment statute than in any
other type of suit.11 An action for declaratory judgment cannot
be used to decide the legal effect of a state of facts which are
future, contingent, or uncertain.12
[7] But a determination with regard to ripeness depends
upon the circumstances in a given case and is a question of
degree.13 With regard to the jurisdictional aspect of ripeness,
we employ a two-part test in which we consider (1) the fitness
of the issues for judicial decision and (2) the hardship of the
parties of withholding court consideration.14 We have already
held, in Cincinnati Ins. Co. v. Becker Warehouse, Inc.,15 that the
meaning of a pollution exclusion in an insurance policy is ripe
for review even before the underlying claim between the victim
and the insured has been resolved. We held this to be true as
to both the insurer’s duty to defend in the pending suit and its
duty to indemnify the insured in the event judgment is rendered
11 See, City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137
(2008); Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007); Douglas
Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664, 694 N.W.2d 668 (2005);
Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001); Dobson v.
Ocean Accident & Guarantee Corporation, 124 Neb. 652, 247 N.W. 789
(1933); 26 C.J.S. Declaratory Judgments § 25 (2001).
12 City of Omaha v. City of Elkhorn, supra note 11.
13 See id.
14 Id.
15 Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746, 635 N.W.2d
112 (2001).
HARLeySvILLe INS. gRouP v. oMAHA gAS APPLIANCe Co. 	553
Cite as 278 Neb. 547

in favor of the plaintiff. We explained that the meaning of the
language of an insurance policy was a question of law that did
not turn on any facts yet to be determined in the separate suit
and that the duty to defend was “bound up” in whether the pol-
icy covered indemnification for the potential damages.16 Thus,
there was a present, substantial controversy between parties
having adverse legal interests susceptible to immediate resolu-
tion and capable of present judicial enforcement.17
It is generally held that injured persons, although they lack
privity of contract with the insurer, are interested and proper
parties to a declaratory judgment action brought by the insurer
against the insured to determine coverage as it pertains to a
pending lawsuit.18 In American Fam. Mut. Ins. Co. v. Hadley,19
our consideration of an injured party’s appeal from a declara-
tory judgment action brought by the tort-feasor’s insurer is
an implicit recognition of this rule and presents procedural
facts very similar to the case at bar. In Hadley, the insurer
had brought a declaratory judgment action against the insured,
alleging that it had no duty to defend a pending lawsuit by
the parents of the alleged victim of civil assault and battery.
The insurer also alleged that it had no duty to indemnify the
insured for any claim arising from that lawsuit. The parents
of the injured child were allowed to intervene despite the
insurer’s protestations that the parents were not necessary par-
ties and should be dismissed. Summary judgment was even-
tually entered in favor of the insurer, and the insured chose
not to appeal. In an appeal brought by the parents from the
declaratory judgment action, we addressed the meaning of the
16 Id. at 753, 635 N.W.2d at 118. See, also, Farm Bureau Ins. Co. v. Witte,
256 Neb. 919, 594 N.W.2d 574 (1999). Compare, Medical Protective Co.
v. Schrein, 255 Neb. 24, 582 N.W.2d 286 (1998); Ryder Truck Rental v.
Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994); Allstate Ins. Co. v. Novak,
210 Neb. 184, 313 N.W.2d 636 (1981).
17 See Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
18 See, generally, Annot., 142 A.L.R. 8 et seq. (1943).
19 American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769
(2002).
554 	278 NeBRASKA RePoRTS

merits of the parents’ arguments as to the meaning of the insur-
ance policy.20
We conclude that Beck has standing to bring this appeal and
to present the arguments that she makes. Beck was a proper
party defendant to Harleysville’s declaratory judgment action
alleging that it had no duty in relation to the alleged incident
that killed the Sachses. While Beck presented somewhat differ-
ent assertions as to why the policy should cover the incident,
those did not interject any factual or legal questions extraneous
to the action. The central question remained whether, as a mat-
ter of law, the pollution exclusions barred coverage. We turn
now to whether the district court was correct in its interpreta-
tion of the exclusions.
2. pollution exclusion in umbrella policy
We note that Beck takes no issue with the district court’s
determination that a pollution exclusion precluded coverage
under Harleysville’s general liability policy with Rybin. Neither
does Beck dispute that the carbon monoxide gases were “pol-
lutants” as defined by the policies. Beck argues instead that
the umbrella policy extended coverage to pollution occurrences
excluded by the general liability policy. According to Beck,
the umbrella policy excluded only coverage stemming from
strict liability pollution claims, but it extended coverage for
pollution-related injuries caused by negligence.
(a) Failure to Plead
Beck’s first argument, however, is that Harleysville is
procedurally barred from raising any exclusion under the
umbrella policy. According to Beck, Harleysville “had raised
the issue of no coverage under [the] umbrella [policy], but [it]
didn’t identify any exclusions in the umbrella [policy].” Beck
points out that, generally, exclusions in insurance policies are
treated as affirmative defenses and therefore must be specifi-
cally pled.21
20 See id.
21 See, e.g., Spulak v. Tower Ins. Co., 257 Neb. 928, 601 N.W.2d 720
(1999).
HARLeySvILLe INS. gRouP v. oMAHA gAS APPLIANCe Co. 	555
Cite as 278 Neb. 547

We find no merit to Beck’s assertion that Harleysville is
barred, by a failure to plead, from raising the pollution exclu-
sion in the umbrella policy. Harleysville attached both policies
to its complaint, and the complaint sufficiently put Rybin and
Beck on notice that Harleysville was claiming it was not liable
for the Sachses’ deaths under either policy.22 It is apparent that
Harleysville specifically pled only the general liability policy
because it believed the umbrella policy was merely a monetary
supplement to the general policy that incorporated the underly-
ing policy’s pollution exclusion. As will be discussed below,
we find that view to be correct.
(b) Merits
[8,9] In construing an insurance contract, a court must give
effect to the instrument as a whole and, if possible, to every
part thereof.23 In situations involving the interplay between
primary and umbrella coverages, courts should examine the
overall pattern of insurance and construe each policy as a
whole.24 Reading the phrase, “[a]ny liability caused by pol-
lutants excluded by ‘underlying insurance,’” we find no basis
for Beck’s conclusion that this could reasonably be construed
as providing coverage, admittedly excluded by the underlying
insurance, for negligence-based pollution occurrences. Beck
would distinguish this phrase from “‘bodily injury caused by
pollutants’”25 or, for example, from “liability caused by negli-
gence and involving pollutants” and would interpret it as syn-
onymous with “bodily injury stemming from a strict liability
claim.” But we need not engage in Beck’s extensive semantic
discussion of whether the isolated phrase referring to “liabil-
ity caused by pollutants” refers solely to legal obligations
22 See Gies v. City of Gering, 13 Neb. App. 424, 695 N.W.2d 180 (2005).
23 Travelers Indemnity Co. v. International Nutrition, 273 Neb. 943, 734
N.W.2d 719 (2007); Callahan v. Washington Nat. Ins. Co., 259 Neb. 145,
608 N.W.2d 592 (2000).
24 Treder ex rel. Weigel v. LST, Ltd. Partnership, 271 Wis. 2d 771, 679
N.W.2d 555 (Wis. App. 2004). See, also, Ill. Emcasco Ins. Co. v. Cont.
Cas. Co., 139 Ill. App. 3d 130, 487 N.e.2d 110, 93 Ill. Dec. 666 (1985).
25 Brief for appellant at 13.
556 	278 NeBRASKA RePoRTS

stemming from the pollutants themselves without any human
causal element. viewing the phrase in context, it clearly con-
veys that the umbrella policy was not meant to provide cover-
age for any additional pollution occurrences excluded under the
general liability policy. The umbrella policy, like the general
liability policy, excluded coverage for liability occasioned by
the release of pollutants—regardless of what level of human
culpability was involved.
vI. CoNCLuSIoN
We affirm the judgment of the district court in favor
of Harleysville.
affirmed.
G errard, J., participating on briefs.
STATe v. CLARK 	557
Cite as 278 Neb. 557
state of nebraska , appellee , v.
kennetH W. clark , appellant.
772 N.W.2d 559
Filed September 18, 2009. 	No. S-08-735.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
2. Sentences: Time. A sentence validly imposed takes effect from the time it
is pronounced.
3. Sentences. When a valid sentence has been put into execution, the trial court
cannot modify, amend, or revise it in any way, either during or after the term or
session of court at which the sentence was imposed.
4. Sentences: Judges: Records. The circumstances under which a judge may cor-
rect an inadvertent mispronouncement of a sentence are limited to those instances
in which it is clear that the defendant has not yet left the courtroom; it is obvious
that the judge, in correcting his or her language, did not change in any manner
the sentence originally intended; and no written notation of the inadvertently
mispronounced sentence was made in the records of the court.
5. Sentences. Pursuant to Neb. Rev. Stat. § 47-503 (Reissue 2004), a sentencing
court is required to separately determine, state, and grant credit for time served.
6. ____. Credit for time served is not incorporated into a sentence such that the
amount of credit given cannot be modified, amended, or revised after the sentence
is put into execution.
7. Sentences: Records. The credit for time served to which a defendant is entitled
is an absolute and objective number that is established by the record.