Bacon v. DBI/SALA

BACON v. DBI/SALA 	579
Cite as 284 Neb. 579
were called first offense or second offense. Because McCarthy’s
two prior convictions clearly satisfy this requirement and
because she makes no other challenge to the use of these con-
victions for purposes of enhancement, we affirm the judgment
of the district court.
A ffirmed.
ronAld “Tim ” BAcon, AppellAnT, v. dBi/SAlA, AlSo
known AS dB induSTrieS, inc., Appellee, And dAviS
erecTion co., inc., employer, And liBerTy
muTuAl G roup, iTS workerS’ compenSATion
cArrier, SuBroGeeS, AppelleeS.
822 N.W.2d 14
Filed November 2, 2012. 	No. S-11-194.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
2. Workers’ Compensation: Subrogation. The employer’s right to a future credit
does not depend upon who brought the action which led to the employee’s recov-
ery or who happens to “recover” first.
3. ____: ____. Neb. Rev. Stat. § 48-118 (Reissue 2010) was enacted for the benefit
of the employer.
4. Statutes: Intent. In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be remedied, and the
purpose to be served, and then must place on the statute a reasonable or liberal
construction that best achieves the statute’s purpose, rather than a construction
that defeats the statutory purpose.
5. Statutes: Appeal and Error. When possible, an appellate court will try to avoid
a statutory construction that would lead to an absurd result.
6. Statutes: Judicial Construction: Legislature: Presumptions. It is presumed
that when a statute has been construed by the Nebraska Supreme Court and the
same statute is substantially reenacted, the Legislature gave to the language the
significance previously accorded to it by the Supreme Court.
7. Workers’ Compensation: Subrogation: Words and Phrases. “Third person”
under the Nebraska Workers’ Compensation Act includes any person other than
the employer or those whom the act makes an employer.
8. Corporations: Stock. Two separate corporations are generally regarded as dis-
tinct legal entities even if the stock of one is owned wholly by the other.
9. Corporations: Presumptions. There is a strong presumption that a parent com-
pany is not the employer of its subsidiary’s employees.
10. Insurance: Subrogation. Under the antisubrogation rule, an insurer has no right
of subrogation against its own insured or coinsured for a claim arising from the
very risk for which the insured was covered.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

580 	284 NEBRASKA REPORTS
11. 	____: ____. The antisubrogation rule does not prohibit subrogation against any
third party who is neither a named nor an implied coinsured, but who has some
kind of duty relationship with the insured.
12. ____: ____. The prohibition of insurers’ subrogation against their own insureds
applies only to claims arising from the very risk for which the insured was cov-
ered by that insurer.
13. Workers’ Compensation: Subrogation. An employer may waive its subrogation
protections under applicable workers’ compensation laws.
14. Subrogation: Waiver. Waivers of subrogation are strictly construed.
15. Workers’ Compensation: Subrogation. A claimant is entitled to deduct the rea-
sonable expenses incurred in reaching settlement from the portion of the settle-
ment subject to subrogation claims.
16. Workers’ Compensation. The portion of a settlement which is not actually
recovered by the employee—because of a prior apportionment agreement—
should not be treated as advance payment by the employer on account of any
future installments of compensation.
17. Rules of the Supreme Court: Appeal and Error. A cross-appeal must be prop-
erly designated under Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2008) if affirmative
relief is to be obtained.
18. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
Appeal from the District Court for Douglas County: JAmeS
T. G leASon, Judge. Affirmed in part, and in part reversed and
remanded.
James E. Harris and Britany S. Shotkoski, of Harris Kuhn
Law Firm, L.L.P., and Robert G. Pahlke, of Robert Pahlke Law
Group, for appellant.
Julie A. Martin, of Nolan, Olson & Stryker, P.C., L.L.O., for
appellees Davis Erection Co., Inc., and Liberty Mutual Group.
H eAvicAn, c.J., wriGHT, connolly, STepHAn, and mccormAck,
JJ., and inBody, Chief Judge, and SieverS, Judge.
mccormAck, J.
NATURE OF CASE
Ronald “Tim” Bacon was severely injured while working
on a construction project as an employee of Davis Erection
Co., Inc. (Davis). Davis and its insurer, Liberty Mutual Group
(Liberty), began paying lifetime workers’ compensation ben-
efits. Bacon brought a separate negligence action against
Davis’ parent company, Ridgetop Holdings, Inc. (Ridgetop),

BACON v. DBI/SALA 	581
Cite as 284 Neb. 579
and joined Davis and Liberty for workers’ compensation sub-
rogation purposes. Ridgetop’s safety director had worked on
the project under the supervision of Davis’ project manager,
and Bacon alleged Ridgetop was independently liable for
the safety director’s negligent acts which contributed to his
injury. Bacon reached a settlement agreement with Ridgetop,
after which the trial court granted Davis and Liberty’s motion,
pursuant to Neb. Rev. Stat. § 48-118 (Reissue 2010), for
a future credit in the amount of Bacon’s settlement with
Ridgetop against its continuing workers’ compensation obliga-
tions. Bacon appeals the order granting the future credit. At
issue is whether Ridgetop is a “third person” under § 48-118
and whether Liberty waived its right to a future credit through
a waiver clause in the policy or statements during settle-
ment negotiations.
BACKGROUND
Metropolitan 	Entertainment 	& 	Convention 	Authority
(MECA) contracted with Kiewit Construction Co. (Kiewit) to
build the Omaha Convention Center and Arena (the Arena).
Pursuant to their agreement, MECA was required to purchase,
maintain, and administer an “Owner Controlled Insurance
Program” (OCIP), which would provide comprehensive build-
er’s liability insurance, including workers’ compensation cov-
erage, for all the contractors working on the Arena. The agree-
ment stated that the OCIP was to fully insure the risk of Kiewit,
as construction manager, and those subcontractors and suppli-
ers performing “the Work.” Kiewit was specifically required to
name itself, its subcontractors, and its suppliers as “additional
insureds.” The agreement also specified that the insurance cov-
erage was to contain waivers of subrogation.
Kiewit contracted with Liberty to provide the OCIP. The
policies to the various subcontractors apparently bore separate
policy numbers.1 However, the senior technical claims special-
ist for Liberty described an OCIP as a single policy written for
a given construction contract, insuring all of the subcontractors
under that program. In this manner, Kiewit was insured by
1 See RSUI Indemnity Co. v. Bacon, 282 Neb. 436, 810 N.W.2d 666 (2011).

582 	284 NEBRASKA REPORTS
Liberty under a commercial liability and workers’ compensa-
tion policy for the duration of its work on the Arena. Kiewit
had additional liability coverage through a policy with RSUI
Indemnity Company (RSUI). The specific policy between
Kiewit and Liberty is not in the record.
conTrAcT And policy wiTH dAviS
Kiewit hired Davis as a subcontractor to perform work on
the Arena. The agreement is not in the record. Bacon instead
entered into evidence two pages of what appears to be a sub-
contract agreement between Kiewit and another subcontrac-
tor for the Arena project. Liberty does not contest that the
agreement is representative of Kiewit’s other subcontractor
agreements. The agreement contained the following waiver
of subrogation:
Subcontractor hereby waives all rights of recovery under
subrogation because of deductible clauses, inadequacy of
limits of any insurance policy, limitations or exclusions of
coverage, or any other reason against Owner, Contractor,
the OCIP Administrator, its or their officers, agents, or
employees, and any other contractor or sub-subcontractor
performing Work or rendering services on behalf of Owner
or Contractor in connection with the planning, develop-
ment and construction of the Project. Subcontractor shall
also require that all Subcontractor maintained insurance
coverage related to the Work include clauses providing
that each insurer shall waive all of its rights of recovery
by subrogation against Owner and Contractor together
with the same parties referenced immediately above in
this Section. Subcontractor shall require similar writ-
ten express waivers and insurance clauses from each
of its sub-subcontractors. A waiver of subrogation shall
be effective as to any individual or entity even if such
individual or entity (a) would otherwise have a duty of
indemnification, contractual or otherwise, (b) did not
pay the insurance premium directly or indirectly, and (c)
whether or not such individual or entity has an insurable
interest in the property damaged.
(Emphasis supplied.)

BACON v. DBI/SALA 	583
Cite as 284 Neb. 579
Davis was an enrollee in the OCIP, pursuant to which
Liberty issued a workers’ compensation and employers’ liabil-
ity policy. A four-page excerpt of the policy between Davis and
Liberty is in evidence. It contains a “Waiver of Our Right to
Recover From Others Endorsement,” which provides:
We have the right to recover our payments from any-
one liable for an injury covered by this policy. We will
not enforce our right against the person or organization
named in the Schedule. (This agreement applies only to
the extent that you perform work under a written contract
that requires you to obtain this agreement from us.)
This agreement shall not operate directly or indirectly
to benefit any one not named in the Schedule.
Under the title “Schedule,” on the same page of the waiver, the
policy states, “Where required by written contract.”
pArenT compAny ridGeTop
Davis is a wholly owned subsidiary of Ridgetop. Ridgetop
was not a named enrollee of the OCIP. It does not appear from
the record that there was any contract between Ridgetop and
MECA or between Ridgetop and Kiewit to perform work on
the Arena. Ridgetop has several wholly owned subsidiary com-
panies, including Davis Rebar, Inc.; Northwest Steel Erection;
Crane Sales & Service; and Crane Rental & Rigging Co.
Ridgetop’s employee David Sowl is a safety director. Sowl
is regularly loaned out to work as the safety director for each
of Ridgetop’s subsidiaries, under the supervision and control of
their division managers. In accordance with this custom, Sowl
provided certain safety services for the Arena project, and he
worked under the direction of Davis’ project manager.
workerS’ compenSATion And
BAcon’S lAwSuiT
Bacon was an employee of Davis and was injured in an
accident while working on the Arena. Liberty, on behalf of
Davis, promptly began paying lifetime workers’ compensation
benefits pursuant to the OCIP policy.
Bacon sued Ridgetop and Kiewit for negligence. He joined
Davis and Liberty for “workers’ compensation subrogation

584 	284 NEBRASKA REPORTS
purposes only.” Bacon asserted that under the doctrine of
respondeat superior, Ridgetop was liable for the negligence of
Sowl. Bacon asserted that Kiewit’s negligent planning, super-
vising, and sequencing of the construction project also con-
tributed to his injury. Bacon joined DBI/SALA, also known
as DB Industries, Inc. (DBI), as a codefendant under various
theories of liability. DBI is the manufacturer of the “Self-
Retracting Lifeline” Bacon was wearing at the time of the
work-related accident. DBI is the subject of the companion
appeal, case No. S-11-541, and is not a party to the pres-
ent appeal.
SeTTlemenT wiTH kiewiT
And ridGeTop
Prior to trial, Bacon entered into settlement negotiations
with Kiewit and Ridgetop. In correspondence with Bacon’s
counsel, Liberty agreed that it had no “‘recovery’ rights as to
any settlement monies from Kiewit or Ridgetop.” But Liberty
explained that it “would still have a claim to Statutory Credit/
offset against any net to . . . Bacon from those entities.”
Bacon settled with Kiewit for $2.25 million, and Liberty
paid $2 million of the settlement pursuant to its general liabil-
ity coverage of Kiewit under the OCIP. RSUI paid the remain-
der. Under the terms of the settlement, Bacon agreed that if
he later settled with Ridgetop, he would pay Kiewit and/or its
insurer a percentage of the Ridgetop settlement.2 Thereafter,
Bacon settled with Ridgetop for $1.25 million, from which
Bacon paid $437,500 to Liberty and RSUI pursuant to the
agreement with Kiewit. In a prior appeal brought by Bacon, we
affirmed his obligation to pay Liberty and RSUI $437,500 from
the Ridgetop settlement.3
Liberty consented to the settlement with Ridgetop, stipu-
lating that it made no claim against the settlement proceeds
and “forever and completely releases, discharges, and waives
any and all claims it may have for subrogation or otherwise
against Ridgetop . . . and its insurors and subsidiaries.” Liberty
2 See id.
3 Id.

BACON v. DBI/SALA 	585
Cite as 284 Neb. 579
also stated in the stipulation that it “specifically and expressly
preserves and reserves any claim it may have to a statutory
credit for the funds netted by [Bacon] through the settle-
ment agreement.”
dAviS/liBerTy moTion for
fuTure crediT
Davis and Liberty moved for a credit against the proceeds of
the settlements with Kiewit and Ridgetop pursuant to § 48-118.
The trial court granted the motion as to the Ridgetop settlement
proceeds, but denied it as to the Kiewit settlement proceeds.
The trial court stated that the future credit issue depended on
whether Kiewit and Ridgetop were “employers” or “third per-
sons.” Section 48-118 allows a future credit for any recovery
by the employer against a “third person.” The court found
that Kiewit, as a contractor, had failed to sustain its burden to
demonstrate it was not a statutory employer by virtue of Neb.
Rev. Stat. § 48-116 (Reissue 2010). The court found, however,
that Ridgetop was a “third person,” because Bacon failed to
overcome the presumption that a parent company is not the
employer of its subsidiary’s employees. The court ordered that
the entirety of the $1.25 million settlement with Ridgetop be
credited toward Davis’ and Liberty’s future obligations to make
workers’ compensation payments.
Bacon’s claims against DBI went to trial and ultimately
resulted in a jury verdict of $21,131,633, minus the $3.5 mil-
lion representing the settlements with Kiewit and Ridgetop
and $8,718.89 in attorney fees and costs in obtaining the
verdict. That verdict is the subject of the appeal in case
No. S-11-541.
ASSIGNMENTS OF ERROR
Bacon asserts, summarized and restated, that the trial court
erred in (1) granting the motion for credit against the settle-
ment proceeds Bacon received from Ridgetop; (2) failing to
deduct from the credit Bacon’s attorney fees and costs in
obtaining the settlement; and (3) failing to deduct from the
credit the $437,500 previously granted Liberty, as subrogee to
Kiewit, against the settlement with Ridgetop.

586 	284 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.4
ANALYSIS
Bacon asserts that the trial court erred in allowing the settle-
ment proceeds from Ridgetop to be treated as a future credit for
purposes of Davis’ ongoing workers’ compensation obligations.
He argues that under a plain reading of § 48-118, future credit
rights exist only when the underlying action is brought by the
employer. He also argues that the term “third person” should be
interpreted in light of common-law antisubrogation principles
and that such principles prevent Ridgetop from being a “third
person” with respect to Davis. Alternatively, Bacon argues that
Liberty expressly waived any rights to a future credit through
the waiver provisions of the OCIP policies, through com-
munications during the settlement negotiations, and through
Liberty’s stipulation to the Ridgetop settlement. Finally, Bacon
argues that if the credit must stand, the trial court erred in
including in the credit the attorney fees and costs associated
with obtaining the settlement and the $437,500 paid to Liberty
and RSUI out of the settlement. For the following reasons, we
affirm the judgment that Ridgetop is a “third person” and that
Liberty did not waive its right to a future credit as to Ridgetop.
But we remand the matter for further proceedings to determine
attorney fees and costs associated with obtaining the Ridgetop
settlement and for a deduction of $437,500 from the future
credit amount.
wHo muST BrinG AcTion
We first address whether the future credit pursuant to
§ 48-118 is limited to recovery in actions instituted by employ-
ers, as opposed to actions instituted by employees. Section
48-118 states in full:
When a third person is liable to the employee or to the
dependents for the injury or death of the employee, the
employer shall be subrogated to the right of the employee
4 In re Application of City of Minden, 282 Neb. 926, 811 N.W.2d 659
(2011).

BACON v. DBI/SALA 	587
Cite as 284 Neb. 579
or to the dependents against such third person. The recov-
ery by such employer shall not be limited to the amount
payable as compensation to such employee or dependents,
but such employer may recover any amount which such
employee or his or her dependents should have been
entitled to recover.
Any recovery by the employer against such third per-
son, in excess of the compensation paid by the employer
after deducting the expenses of making such recov-
ery, shall be paid forthwith to the employee or to the
dependents and shall be treated as an advance payment
by the employer on account of any future installments
of compensation.
Nothing 	in 	the 	Nebraska 	Workers’ 	Compensation
Act shall be construed to deny the right of an injured
employee or of his or her personal representative to bring
suit against such third person in his or her own name or
in the name of the personal representative based upon
such liability, but in such event an employer having paid
or paying compensation to such employee or his or her
dependents shall be made a party to the suit for the pur-
pose of reimbursement, under the right of subrogation, of
any compensation paid.
Bacon relies on the fact that the sentence which refers to the
future credit mentions only “[a]ny recovery by the employer.”
(Emphasis supplied.)
In Turner v. Metro Area Transit,5 a dissenting justice argued
that § 48-118 distinguishes between recovery by the employer
and recovery by the employee. The majority opinion implic-
itly rejected that viewpoint. The action had been brought by
the injured employee against a negligent third party. And we
affirmed the judgment allowing the employer a future credit
in the amount of the worker’s settlement with the third-party
tort-feasor.
In Nekuda v. Waspi Trucking, Inc.,6 we again affirmed a
judgment of future credit representing the amount obtained
5 Turner v. Metro Area Transit, 220 Neb. 189, 368 N.W.2d 809 (1985).
6 Nekuda v. Waspi Trucking, Inc., 222 Neb. 806, 388 N.W.2d 438 (1986).

588 	284 NEBRASKA REPORTS
in settlement in an action brought by the employee’s widow
against a third-party tort-feasor. No case has denied the right
to a future credit based on the identity of the originator of the
underlying suit.
[2] We decline to revisit the Turner decision, which has
stood as good law for more than two decades. The employer’s
right to a future credit does not depend upon who brought the
action which led to the employee’s recovery or who happens to
“recover” first. This is not a race to the courthouse.
Bacon argues we are to construe the Nebraska Workers’
Compensation Act (the Act) in light of its beneficent pur-
poses. But those beneficent purposes are to provide an injured
worker with prompt relief from the adverse economic effects
caused by a work-related injury or occupational disease.7 In
other words, the beneficent purposes of the Act concern the
employee’s ability to promptly obtain workers’ compensa-
tion benefits—not the employee’s ability to additionally retain
recovery against negligent third parties in tort actions. We find
no reason to conclude that the beneficent purposes of the Act
require us to narrowly interpret the employer’s statutory sub-
rogation rights.
To the contrary, the policies behind the Act favor a liberal
construction in favor of the employer’s statutory right to subro-
gate against culpable third parties. Workers’ compensation acts
generally seek to balance the rights of injured workers against
the costs to the businesses that provide employment.8 To reach
this balance, most acts liberally allow employers to shift liabil-
ity onto third parties whenever possible.9
[3] We have specifically said that § 48-118 was enacted “for
the benefit of the employer.”10 We have explained that “[i]nno-
cent employers who are required to compensate employees for
injuries are intentionally granted a measure of relief equivalent
to the compensation paid and the expenses incurred, where a
7 See Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).
8 See 28 Causes of Action 2d 523 § 2 (2005).
9 Id.
10 Oliver v. Nelson, 128 Neb. 160, 162, 258 N.W. 69, 70 (1934).

BACON v. DBI/SALA 	589
Cite as 284 Neb. 579
third person negligently causes the loss and responds in dam-
ages to that extent.”11 It would not be “wise public policy”
to bar an employer from asserting its subrogation interest
under the Act.12 This, we have explained, might discourage the
prompt payment of benefits to the employee, which, again, is
the underlying beneficent purpose of the Act.13
Section 48-118, which retains much of the original language
from its original enactment in 1913, is admittedly not the most
carefully crafted provision of the Act. The first paragraph of
§ 48-118 refers generally to the fact that the employer “shall”
be “subrogated to the right of the employee . . . against [a]
third person.” But the second paragraph specifies only that
recovery “by the employer against such third person, in excess
of the compensation paid by the employer . . . , shall be paid
. . . to the employee . . . and shall be treated as an advance
payment by the employer on account of any future install-
ments of compensation.” Then the last paragraph mandates
that “[n]othing in the . . . Act shall be construed to deny the
right of an injured employee . . . to bring suit,” provided the
employer “be made a party to the suit for the purpose of reim-
bursement, under the right of subrogation, of any compensa-
tion paid.”
It has been said that a right of subrogation includes recovery
for both past and future benefits for which the insurer is liable.14
“Future benefits are a part of the carrier’s subrogation interest
because they act as an advance against future payments.”15
Thus, the focus on the “recovery by the employer” in the
sentence at issue seems inconsistent with the statute’s more
general mandate that the employer “shall” be subrogated to the
rights of the employee against third parties.
11 Bronder v. Otis Elevator Co., 121 Neb. 581, 586, 237 N.W. 671, 673
(1931).
12 Burns v. Nielsen, 273 Neb. 724, 733, 732 N.W.2d 640, 649 (2007).
13 Id.
14 See 16 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d
§ 225:203 (2005).
15 Hartford Acc. & Indem. Co. v. Buckland, 882 S.W.2d 440, 445 (Tex. App.
1994).

590 	284 NEBRASKA REPORTS
[4,5] In construing a statute, a court must look to the statu-
tory objective to be accomplished, the evils and mischiefs
sought to be remedied, and the purpose to be served, and then
must place on the statute a reasonable or liberal construction
that best achieves the statute’s purpose, rather than a construc-
tion that defeats the statutory purpose.16 And when possible, an
appellate court will try to avoid a statutory construction that
would lead to an absurd result.17
Reading § 48-118 as a whole, we affirm that it was not
intended to draw a distinction which would grant the right to a
future credit in recovery from actions brought by the employer,
but deny that right in actions brought by the employee. Such
a distinction would be arbitrary insofar as it would depend on
who first brought suit. It would also be arbitrary insofar as the
timing of the suit would change the amount of recovery. Even
under Bacon’s reading of the statute, an employer in an action
brought by the employee would retain the right to be reim-
bursed for payments made up to the time of the employee’s
recovery in the employee’s action.
There is, in fact, a simple explanation for the focus on
“recovery by the employer.” When this language was origi-
nally enacted, the right to an action against the third party
rested almost exclusively with the employer, until such time
as the employee could allege and prove that his employer
had neglected or refused to institute the action.18 It was only
later that the last paragraph was added, which was intended to
expand the rights of the employee to bring an action against
third parties.19 That amendment was careful not to diminish
the employer’s subrogation rights, however, and thus stated
that the employee bringing his or her own action must join
the employer as a party to the suit “for the purpose of reim-
bursement, under the right of subrogation, of any compensa-
tion paid.”
16 Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
17 City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011).
18 See Oliver v. Nelson, supra note 10.
19 Id.

BACON v. DBI/SALA 	591
Cite as 284 Neb. 579
[6] In many cases before and since Turner,20 we have held
that § 48-118 was enacted for the benefit of the employer
and that there are policy reasons favoring broad subroga-
tion rights for a statutorily liable employer against negligent
third parties. And while § 48-118 has been amended several
times since Turner, the relevant language pertaining to the
right to a future credit has remained substantially the same.
It is presumed that when a statute has been construed by the
Nebraska Supreme Court and the same statute is substantially
reenacted, the Legislature gave to the language the significance
previously accorded to it by the Supreme Court.21 We find no
merit to Bacon’s argument that Liberty cannot pursue future
credit against Ridgetop, because it was Bacon who brought the
underlying action and who obtained recovery from Ridgetop.
wHo iS THird perSon
[7] Bacon next argues that Davis/Liberty cannot have a
future credit for the amount of the Ridgetop settlement, because
Ridgetop is not a “third person” under § 48-118. “Third per-
son” is not defined by the Act. However, we have said that
“third person” includes “any person other than the employer
or those whom the Workmen’s Compensation Act makes an
employer.”22 It is an entity with which there is no employer-
employee relationship.23 A third person is “‘“any person other
than the master, or those whom the act makes master, and the
employee who is seeking compensation under their [workers’
compensation] agreement.”’”24
We have noted that “‘“[t]he act is careful to preserve the sta-
tus of a third person by not defining the term; so the presump-
tion must be that the law as to third persons in every respect
stands as it was before the act.”’”25 As to any entity the Act
20 Turner v. Metro Area Transit, supra note 5.
21 Brown v. Kindred, 259 Neb. 95, 608 N.W.2d 577 (2000).
22 Rehn v. Bingaman, 151 Neb. 196, 197, 36 N.W.2d 856, 857 (1949)
(syllabus of court).
23 See id.
24 Id. at 202, 36 N.W.2d at 860.
25 Id.

592 	284 NEBRASKA REPORTS
does not confer a contractual relation upon, the common-law
rights of action are preserved.26
[8,9] Bacon does not assert that the Act conferred a contrac-
tual relation upon Ridgetop as a statutory “employer.” To the
contrary, two separate corporations are generally regarded as
distinct legal entities even if the stock of one is owned wholly
by the other.27 Accordingly, as the trial court noted, there is a
strong presumption that a parent company is not the employer
of its subsidiary’s employees.28
Bacon does not appeal to concepts of alter ego or piercing
the corporate veil which might overcome this presumption.
Indeed, to pierce the corporate veil between a parent and a
subsidiary, a plaintiff must show more than the mere sharing
of services between two corporations.29 Moreover, the types
of equity rationales for piercing the corporate veil or treating
one corporation as the alter ego of another generally do not
arise in the workers’ compensation context.30 And, if Ridgetop
and Davis were to be treated as the same entity, then Ridgetop
would have been entitled to protection under the exclusivity
provisions of the Act and Bacon would not have been able
to obtain the settlement from which Liberty now seeks its
future credit.31 Bacon instead sued Ridgetop under the theory
that Ridgetop was an independent entity not governed by the
26 See id.
27 See Roos v. KFS BD, Inc., 280 Neb. 930, 799 N.W.2d 43 (2010).
28 See, e.g., Lusk v. Foxmeyer Health Corp., 129 F.3d 773 (5th Cir. 1997);
Laird v. Capital Cities/ABC, Inc., 68 Cal. App. 4th 727, 80 Cal. Rptr. 2d
454 (1998); Croxton v. Crowley Maritime Corp., 817 P.2d 460 (Alaska
1991).
29 Global Credit Servs. v. AMISUB, 244 Neb. 681, 508 N.W.2d 836 (1993).
30 See Kranich v. TCAC, LLC, No. CV065000476S, 2009 WL 941973 (Conn.
Super. Mar. 16, 2009) (unpublished opinion). See, also, e.g., 1 William
Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 43.80
(perm. ed., rev. vol. 2006).
31 See, Neb. Rev. Stat. §§ 48-111 and 48-112 (Reissue 2010); Hofferber
v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008); 1 John P.
Ludington et al., Modern Workers Compensation § 103:14 (Matthew J.
Canavan & Donna T. Rogers eds., 1993).

BACON v. DBI/SALA 	593
Cite as 284 Neb. 579
workers’ compensation statutes, independently liable for its
direct participation in the wrong complained of.32
[10] Bacon’s theory is that the common-law antisubrogation
rule precludes Ridgetop from being a “third person” under the
Act. Under the antisubrogation rule, an insurer has no right of
subrogation against its own insured or coinsured for a claim
arising from the very risk for which the insured was covered.33
Bacon claims that the question of whether an entity is a “third
person” versus an “employer” for purposes of § 48-118 must
be strictly construed in light of this rule.
We find several flaws in Bacon’s argument. First, it is
undisputed that Ridgetop is neither an insured nor coinsured
under the closely related policies issued by Liberty pursu-
ant to the OCIP. While “implied coinsureds”34 are sometimes
found with regard to integrally related policies35 or intended
beneficiaries,36 Liberty has no policy with Ridgetop, closely
related or otherwise.
Nevertheless, Bacon attempts to piece together several gen-
eral concepts of insurance law to make Ridgetop a “coinsured”
under the antisubrogation rule. Bacon asserts “Ridgetop is
not a ‘third person’ to whom no duty is owed . . . .”37 It has
often been explained that subrogation exists only with respect
to rights of the insurer against “‘third persons to whom the
insurer owes no duty.’”38
32 See, e.g., Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 864 N.E.2d 227,
309 Ill. Dec. 361 (2007).
33 See 46A C.J.S. Insurance § 1997 (2007). See, also, Hans v. Lucas, 270
Neb. 421, 703 N.W.2d 880 (2005); Tri-Par Investments v. Sousa, 268 Neb.
119, 680 N.W.2d 190 (2004).
34 Tri-Par Investments v. Sousa, supra note 33, 268 Neb. at 130, 680 N.W.2d
at 199.
35 See, e.g., North Star Reinsurance v. Continental Ins., 82 N.Y.2d 281, 624
N.E.2d 647, 604 N.Y.S.2d 510 (1993).
36 See Hans v. Lucas, supra note 33.
37 Brief for appellant at 22.
38 Stetina v. State Farm Mut. Auto. Ins. Co., 196 Neb. 441, 451, 243 N.W.2d
341, 346 (1976). See, also, e.g., 16 Russ & Segalla, supra note 14,
§ 224:1.

594 	284 NEBRASKA REPORTS
Bacon asserts, without citation to pertinent case law, that
Davis, as a wholly owned subsidiary, owed “a duty” to its
parent company, Ridgetop. And since Liberty, as the insurer
of Davis, “steps into the shoes”39 of its insured for subroga-
tion purposes,40 Bacon surmises that Liberty owed a duty to
Ridgetop. Therefore, according to Bacon, Liberty cannot sub-
rogate against Bacon’s recovery from Ridgetop.
[11] Directors of a wholly owned subsidiary may be obli-
gated to manage the affairs of the subsidiary in the best inter-
ests of the parent and its shareholders.41 But we can find no
support for the idea that it thus follows that the subsidiary’s
insurer can never subrogate against the parent’s insurer. In
fact, we find little support for Bacon’s overarching prem-
ise concerning the interplay between the antisubrogation rule
and the concept of insurers “stepping into the shoes” of their
insureds for purposes of subrogation. An insurer “steps into
the shoes” of its insured insofar as the insurer’s subrogation
rights can be no greater than the rights of an insured against
a third party.42 The antisubrogation rule states that an insurer
may not “step into the shoes” of its insured to sue a third-party
tort-feasor who also qualifies as an insured under the same
policy for damages arising from the same risk covered by the
policy.43 But we can find no support for the conclusion that the
insurer “steps into the shoes” of its insured for purposes of the
antisubrogation rule. In other words, we have found no law
which states that the antisubrogation rule prohibits subroga-
tion against third parties who are neither named nor implied
coinsureds, but who have some kind of duty relationship with
the insured.
39 Brief for appellant at 10.
40 See, e.g., First American Title Ins. v. Western Sur., 283 Va. 389, 722
S.E.2d 637 (2012); Jones v. Nationwide Property and Cas. Ins., 32 A.3d
1261 (Pa. 2011).
41 See Anadarko Petro. v. Panhandle Eastern, 545 A.2d 1171 (Del. 1988).
42 See Thrower v. Anson, 276 Neb. 102, 752 N.W.2d 555 (2008).
43 ELRAC, Inc. v. Ward, 96 N.Y.2d 58, 748 N.E.2d 1, 724 N.Y.S.2d 692
(2001).

BACON v. DBI/SALA 	595
Cite as 284 Neb. 579
[12] We have, in fact, repeatedly rejected attempts by liti-
gants to expand the traditional scope of the antisubrogation
rule through broad “duty” arguments. In Allstate Ins. Co. v.
LaRandeau,44 we rejected the insured arsonist’s argument that
his insurer could not subrogate against him, because he was a
person to whom the insurer owed a duty. Despite the fact that
the arsonist was a named insured, we explained: “The problem
with this argument is that [his] intentional act of arson was not
covered under the homeowner’s insurance policy. Therefore,
[the insurer] owed him no duty under the policy.”45 And in
Control Specialists v. State Farm Mut. Auto. Ins. Co.,46 we
held that the antisubrogation rule did not preclude an insurance
company from subrogating its payment on behalf of one of its
named insureds against another named insured under a differ-
ent policy. Despite the fact that the insured, whom the insurer
sought to subrogate against, was one to whom the insurer owed
a duty, it was a duty under a different contract from the one
under which it asserted its subrogation rights.47 As noted by
Couch on Insurance 3d, broad statements of the antisubroga-
tion rule “tend to leave out a crucial boundary of the rule: the
prohibition of insurers’ subrogation against their own insureds
applies to claims arising from the very risk for which the
insured was covered by that insurer.”48
Bacon also discusses the fact that Ridgetop’s employee,
Sowl, is regularly loaned out to work on jobsites for Ridgetop’s
subsidiary companies. His argument on this point is unclear.
Bacon emphasizes that Sowl regularly acts under the direction
of the subsidiary companies’ division managers when he is on
loan to them and that Sowl, accordingly, acted as the safety
director for the Arena, under the direction of Davis’ division
manager. Bacon asserts that Sowl’s negligence is really Davis’
44 Allstate Ins. Co. v. LaRandeau, 261 Neb. 242, 622 N.W.2d 646 (2001).
45 Id. at 246, 622 N.W.2d at 650 (emphasis supplied).
46 Control Specialists v. State Farm Mut. Auto. Ins. Co., 228 Neb. 642, 423
N.W.2d 775 (1988).
47 See id.
48 16 Russ & Segalla, supra note 14, § 224:1 at 224-15.

596 	284 NEBRASKA REPORTS
negligence and that, therefore, Ridgetop’s negligence is really
Davis’ negligence. Bacon then concludes, again without cita-
tion to pertinent case law, that “[s]ubrogation does not lie
against an agent of an employer performing work under the
employer’s direction and control.”49 Bacon overlooks that the
settlement in question was not with the “agent,” Sowl, but
with Ridgetop. But regardless, we find that Sowl’s involve-
ment in the work makes no difference to Davis/Liberty’s right
to subrogation.
As much as Bacon tries to make the antisubrogation rule fit,
the reasons for the rule fundamentally do not apply to Davis/
Liberty’s relationship with Ridgetop. There are two public
policy considerations behind the antisubrogation rule.50 First,
the insurer should not be able to pass the incidence of the loss,
either partially or totally, from itself to its own insured and thus
avoid the coverage which its insured purchased.51 Second, the
insurer should not be placed in a situation where there exists
a potential conflict of interest, thereby possibly affecting the
insurer’s incentive to provide a vigorous defense for one of
its insureds.52
Liberty would not be avoiding coverage which its insureds
purchased, and it would not be placed in a conflict of inter-
est. Whatever duty there may be between Ridgetop and Davis,
Liberty does not have that same duty to Ridgetop, making it a
“coinsured”—let alone a “coinsured” under the same policy for
the same covered risk. There is no policy of insurance between
Ridgetop and Liberty, and Ridgetop did not contribute to the
premiums for the workers’ compensation insurance coverage
which Liberty paid on Davis’ behalf. The Ridgetop settlement
with Bacon was paid under general liability coverage through
another insurer.
Finally, while it is not necessary to decide the question
here, we note that it is questionable whether the common-law
49 Brief for appellant at 22.
50 Allstate Ins. Co. v. LaRandeau, supra note 44.
51 Id.
52 Id.

BACON v. DBI/SALA 	597
Cite as 284 Neb. 579
remedy of antisubrogation can ever be pertinent to subrogation
rights granted employers through § 48-118. It has been sug-
gested that common-law subrogation principles, including the
antisubrogation rule, are inapplicable to claims made under the
workers’ compensation scheme.53 And in Jackson v. Branick
Indus.,54 we pointed out that “we have never employed a hybrid
of statutory and equitable subrogation without direction from
the Legislature to do so.” More specifically, we explained that
the employer’s statutory right to subrogation has never been
modified or diminished by equitable subrogation.55 We have
repeatedly rejected attempts by litigants to interject equitable
doctrines to prevent insurers from exercising their statutory
rights to subrogation under the Act.56 In doing so, we have rea-
soned that subrogation in workers’ compensation is based on
statute, not equity.57 The antisubrogation rule is fundamentally
an equitable concept.58
For all the preceding reasons, we find no merit to Bacon’s
assertion that Ridgetop is not a “third person” within the mean-
ing of § 48-118.
wAiver of SuBroGATion riGHTS
[13] However, most jurisdictions permit an employer to
waive its subrogation protections under applicable workers’
compensation laws.59 Bacon argues that even if Liberty is a
“third person” under § 48-118, Liberty explicitly waived its
rights under that section.
53 See 16 Russ & Segalla, supra note 14, § 225:230. See, also, Threshermens
Mut. Ins. Co. v. Page, 217 Wis. 2d 451, 577 N.W.2d 335 (1998); Dahlbeck
v. New London Concrete, 400 N.W.2d 736 (Minn. 1987).
54 Jackson v. Branick Indus., 254 Neb. 950, 960, 581 N.W.2d 53, 59 (1998).
55 Id.
56 See, Burns v. Nielsen, supra note 12; Turco v. Schuning, 271 Neb. 770,
716 N.W.2d 415 (2006).
57 See Burns v. Nielsen, supra note 12.
58 Petta v. ABC Ins. Co., 278 Wis. 2d 251, 692 N.W.2d 639 (2005). See, also,
e.g., Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689
(2004).
59 3 Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner and O’Connor on
Construction Law § 10:55 (2002).

598 	284 NEBRASKA REPORTS
Bacon first argues that Liberty waived the right to future
credit through communications with Bacon’s counsel during
the settlement negotiations and through Liberty’s stipulation
to the settlement with Ridgetop. The carrier’s right to have
the excess of a third-party recovery credited against future
compensation liability is a right that can be waived as part of
a settlement.60
In correspondence with Bacon’s counsel, Liberty agreed
that it had no “‘recovery’ rights as to any settlement monies
from Kiewit or Ridgetop.” And Liberty stated in its stipu-
lation to the Ridgetop settlement that it “hereby forever
and completely releases, discharges, and waives any and
all claims it may have for subrogation or otherwise against
Ridgetop.” Standing alone, those statements provide support
for Bacon’s argument.
But Liberty points out that in both instances, and within
the same documents, it also expressly reserved its right to a
future credit from any waiver of subrogation. Liberty stated
in its correspondence pertaining to the imminent settlement
with Ridgetop, that it “would still have a claim to Statutory
Credit/offset against any net to . . . Bacon from those enti-
ties.” Liberty stated in the stipulation that it “specifically and
expressly preserves and reserves any claim it may have to a
statutory credit for the funds netted by [Bacon] through the
settlement agreement.”
Bacon believes these reservations of rights to a future
credit were ineffective because they were “incongruous” with
Liberty’s waiver of its claims for subrogation.61 Bacon argues
that without a “subrogation interest,” there can be no basis for
a future credit.62 He claims that the reservations of the right to
future credit were attempts to make a “back door claim” when
Liberty waived subrogation through the “front door.”63
60 See Turner v. Metro Area Transit, supra note 5. See, also, 6 Arthur Larson
& Lex K. Larson, Larson’s Workers’ Compensation Law § 117.01[7]
(2011).
61 Brief for appellant at 17.
62 Id.
63 Id.

BACON v. DBI/SALA 	599
Cite as 284 Neb. 579
Whether or not it is theoretically congruous to retain a right
to a future credit when “subrogation” has been waived is of
no consequence. The “back door” and the “front door” were
always clearly visible to the parties. There was no ambiguity
in Liberty’s repeated expression that it reserved its rights to
a future credit under § 48-118. We will not engage in seman-
tics to conclude otherwise. Liberty “specifically and expressly
preserve[d] and reserve[d] any claim it may have to statutory
credit for the funds netted by [Bacon] through the settle-
ment agreement.”
Bacon next argues that Liberty waived its right to future
credit through a waiver provision in its policy with Davis.
According to Bacon, the waiver encompassed rights to recover
against all who performed work or rendered services on the
Arena. We find this argument equally without merit.
We note at the outset that as evidence of this waiver,
Bacon presents to us a four-page excerpt from the policy
between Davis and Liberty; a two-page excerpt purportedly
of Davis’ construction contract, but which lists only Kiewit
and another subcontractor for the project; a two-page excerpt
from a policy between Liberty and MECA; and a five-page
excerpt of a “Standard Form of Agreement Between Owner
and Construction Manager where the Construction Manager is
also the Constructor,” between MECA and Kiewit. We hesitate
to construe the terms of the policy upon such a sparse record.
However, because Liberty does not contest this point, we will
address what is before us.
Bacon’s focus is the four-page excerpt from the Davis/
Liberty policy and the five-page excerpt of the “Standard
Form of Agreement Between Owner and Construction Manager
where the Construction Manager is also the Constructor.” The
policy between Davis and Liberty contained a “Waiver of Our
Right to Recover From Others Endorsement,” stating:
We have the right to recover our payments from any-
one liable for an injury covered by this policy. We will
not enforce our right against the person or organization
named in the Schedule. (This agreement applies only to
the extent that you perform work under a written contract
that requires you to obtain this agreement from us.)

600 	284 NEBRASKA REPORTS
This agreement shall not operate directly or indirectly
to benefit any one not named in the Schedule.
Under “Schedule,” the policy states, “Where required by writ-
ten contract.”
Thus, Bacon ties in the “written contract” between MECA
and Kiewit and the waiver of subrogation contained in Kiewit’s
subcontract or agreement:
Subcontractor 	hereby 	waives 	all 	rights 	of 	recovery
under subrogation because of deductible clauses, inad-
equacy of limits of any insurance policy, limitations
or exclusions of coverage, or any other reason against
Owner, Contractor, the OCIP Administrator, its or their
officers, agents, or employees, and any other contrac-
tor or sub-subcontractor performing Work or rendering
services on behalf of Owner or Contractor in con-
nection with the planning, development and construc-
tion of the Project. Subcontractor shall also require
that all Subcontractor maintained insurance coverage
related to the Work include clauses providing that each
insurer shall waive all of its rights of recovery by sub-
rogation against Owner and Contractor together with
the same parties referenced immediately above in this
Section. 	Subcontractor 	shall 	require 	similar 	written
express waivers and insurance clauses from each of
its sub-subcontractors. A waiver of subrogation shall
be effective as to any individual or entity even if such
individual or entity (a) would otherwise have a duty of
indemnification, contractual or otherwise, (b) did not
pay the insurance premium directly or indirectly, and (c)
whether or not such individual or entity has an insurable
interest in the property damaged.
(Emphasis supplied.) Bacon concludes that, reading together
the excerpts from the Davis/Liberty policy and the MECA/
Kiewit contract, Liberty waived its right “to recover [its]
payments from anyone liable for an injury covered by this
policy,” for “any . . . reason” against “any . . . contractor or
sub-subcontractor performing Work or rendering services on
behalf of Owner or Contractor in connection with the planning,
development and construction of the [Arena] Project.”

BACON v. DBI/SALA 	601
Cite as 284 Neb. 579
As mentioned, the policy in question is part of an owner-
controlled “wrap-up” insurance program.64 Wrap-up insurance
programs are designed to prevent the plethora of third-party
claims usually associated with lawsuits in large construction
projects, wherein various parties associated with the proj-
ect seek indemnification or contribution from each other.65
Such claims interfere with construction and result in higher
costs.66 So, pursuant to a waiver of subrogation clause, the
contractors and subcontractors, all in relatively equal bar-
gaining positions, exculpate each other and shift the ultimate
risk of losses pertaining to the project to the owner.67 That
risk is then transferred to the owner’s insurer for valuable
consideration.68
[14] Courts have found these waivers operative as to the
right to statutory credit against future workers’ compensa-
tion obligations, when the employee obtains recovery from a
named insured under the OCIP.69 But the waivers are generally
64 4 Steven G.M. Stein, Construction Law ¶ 13.08 (2009).
65 Id. See, also, e.g., Tokio Marine & Fire v. Employers Ins. of Wausau, 786
F.2d 101 (2d Cir. 1986); Behr v. Hook, 173 Vt. 122, 787 A.2d 499 (2001);
IRMA v. O’Donnell, Wicklund, Pigozzi, 295 Ill. App. 3d 784, 692 N.E.2d
739, 229 Ill. Dec. 750 (1998); Industrial Risk v. Garlock Equipment, 576
So. 2d 652 (Ala. 1991); U.S. Fid. & Guar. v. Farrar’s Plumbing, 158
Ariz. 354, 762 P.2d 641 (Ariz. App. 1988); Tuxedo Plumbing &c. Co. v.
Lie-Nielsen, 245 Ga. 27, 262 S.E.2d 794 (1980).
66 See, Tokio Marine & Fire v. Employers Ins. of Wausau, supra note 65;
Behr v. Hook, supra note 65; IRMA v. O’Donnell, Wicklund, Pigozzi, supra
note 65; Industrial Risk v. Garlock Equipment, supra note 65; U.S. Fid. &
Guar. v. Farrar’s Plumbing, supra note 65; Tuxedo Plumbing &c. Co. v.
Lie-Nielsen, supra note 65; Home Ins. Co. v. Pinski Brothers, 160 Mont.
219, 500 P.2d 945 (1972).
67 See Behr v. Hook, supra note 65. See, also, IRMA v. O’Donnell, Wicklund,
Pigozzi, supra note 65.
68 4 Stein, supra note 64, ¶ 13.12[7][c]. See, also, e.g., Colonial Properties
Realty v. Lowder Const., 256 Ga. App. 106, 567 S.E.2d 389 (2002); SAIF
v. Fama Const. Co., 353 N.J. Super. 1, 801 A.2d 334 (2002); Behr v. Hook,
supra note 65.
69 See Hartford Acc. & Indem. Co. v. Buckland, supra note 15. See, also,
Allen v. Texaco, Inc., 510 F.2d 977 (5th Cir. 1975); Olivas v. United States,
506 F.2d 1158 (9th Cir. 1974).

602 	284 NEBRASKA REPORTS
limited and operate only to the extent that each party is cov-
ered by the builder’s risk policy.70 Waivers of subrogation
are strictly construed,71 and waivers of statutorily conferred
rights under the workers’ compensation act must be clear
and unequivocal.72
Ridgetop was not a “person or organization named” in any
schedule or elsewhere in any of the policies under the OCIP.
There is no evidence that Ridgetop entered into any contract
with Kiewit or MECA to perform work on the Arena as a “con-
tractor” or “subcontractor.” But because Ridgetop loaned one
of its employees to its subsidiary to work on the Arena, Bacon
concludes that Ridgetop was a “sub-subcontractor performing
Work or rendering services on behalf of Owner or Contractor
in connection with the planning, development and construction
of the Project.”
We disagree. We will not construe a waiver which was
limited to persons or organizations “named in the Schedule,”
and which “shall not operate directly or indirectly to benefit
any one not named in the Schedule,” to encompass unnamed
persons in a broadly worded contractual waiver between a con-
tractor and subcontractor to which the insurer was not a party.
Furthermore, strictly construing such a waiver, we conclude
that Ridgetop was not a “contractor” or “sub-subcontractor” for
the project. A “contractor” is a party to a contract.73 A “subcon-
tractor” is one who is awarded a portion of an existing contract
by a contractor.74 As far as the record reflects, Ridgetop was
not a party to any contract with a contractor or subcontractor
to perform work on the Arena.
Our reading of the waiver is consistent with the purposes
behind OCIP’s. OCIP waivers shift the risk from those indi-
viduals insured by the OCIP to the insurer, and the contrac-
tors’ and subcontractors’ premiums are calculated accordingly.
70 See 44A Am. Jur. 2d Insurance § 1784 (2003).
71 16 Russ & Segalla, supra note 14, § 224:90.
72 See 3 Bruner & O’Connor, supra note 59.
73 See Black’s Law Dictionary 375 (9th ed. 2009).
74 Id. at 1560.

BACON v. DBI/SALA 	603
Cite as 284 Neb. 579
OCIP waivers are not generally intended to exculpate those
parties who have no contractual relationship to the project and
whose acts are not insured under the OCIP.
Liberty did not waive its right to a future credit as to Bacon’s
recovery against Ridgetop. It did not waive the right during
settlement negotiations, and it did not waive it in its OCIP poli-
cies. We turn now to Bacon’s last assignment of error.
ATTorney feeS And coSTS
[15,16] We find merit to Bacon’s assertion that the trial
court erred in granting the credit for the entire amount of
the settlement. Even Liberty appears to concede that the case
should be remanded for further proceedings to determine the
extent of the credit. A claimant is entitled to deduct the rea-
sonable expenses incurred in reaching settlement from the
portion of the settlement subject to subrogation claims.75 And
the future credit described in § 48-118 is based on the “recov-
ery.” While this precise issue does not seem to have arisen
before, it stands to reason that the portion of a settlement
which is not actually recovered by the employee—because of
a prior apportionment agreement—should not be treated as
advance payment by the employer on account of any future
installments of compensation. Therefore, the $437,500 of the
Ridgetop settlement that Bacon was obliged to pay Liberty
and RSUI as part of the Kiewit settlement should be deducted
from Davis/Liberty’s future credit. Since the amount of attor-
ney fees and costs associated with Bacon’s recovery against
Ridgetop are not in the record, we remand that matter for
further proceedings.
dAviS/liBerTy’S ATTempTed
croSS-A ppeAl
Finally, we note that Davis and Liberty attempted to cross-
appeal the trial court’s denial of their motion for future credit
75 See Austin v. Scharp, 258 Neb. 410, 604 N.W.2d 807 (1999). See, also,
Turney v. Werner Enters., 260 Neb. 440, 618 N.W.2d 437 (2000); Gillotte
v. Omaha Public Power Dist., 189 Neb. 444, 203 N.W.2d 163 (1973),
disapproved in part on other grounds, Nekuda v. Waspi Trucking, Inc.,
supra note 6.

604 	284 NEBRASKA REPORTS
against Bacon’s settlement with Kiewit. However, the cross-
appeal is not noted on the cover of their brief and it does not
contain an assignments of error section. In fact, the only sec-
tion of the brief on cross-appeal is the argument section.
[17,18] Appellate courts of this state have repeatedly held
that a cross-appeal must be properly designated under Neb.
Ct. R. App. P. § 2-109(D)(4) (rev. 2008) if affirmative relief
is to be obtained.76 Section 2-109(D)(4) states that the cross-
appeal shall be noted on the cover of the brief and shall be
set forth in a separate division of the brief, headed “Brief
on Cross-Appeal.” Section 2-109(D)(4) further states that
the “Brief on Cross-Appeal” shall be prepared in the same
manner and under the same rules as the brief of appellant.
Errors argued but not assigned will not be considered on
appeal.77 We accordingly decline to consider Davis/Liberty’s
arguments concerning the order as pertained to the amount of
the Kiewit settlement.
CONCLUSION
We reverse, and remand the trial court’s order of future
credit for the limited purpose of deducting $437,500 and for
determining the amount of reasonable attorney fees and costs
which should additionally be deducted from the amount of the
credit. As to all other matters before us from the final judgment
entered pursuant to Neb. Rev. Stat. § 25-1315 (Reissue 2008),
we affirm.
A ffirmed in pArT, And in pArT
reverSed And remAnded.
STepHAn, J., participating on briefs.
miller-lermAn and cASSel, JJ., not participating.
76 Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43
(2003).
77 Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
(2010).