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Supreme Court of Nebraska
December 8, 2006, Filed
[**769] [*702] Stephan, J.
Appellants, John C. Peterson (Peterson) and Kathy M. Peterson, filed a declaratory judgment action in the district court for Douglas County against appellee The Ohio Casualty Group, also known as West American Insurance Company (Ohio Casualty). The Petersons sought a declaration that Ohio Casualty had an obligation under two insurance policies to defend and indemnify Peterson in a lawsuit filed against him by Richard J. Holcomb. In 2003, the district court entered summary judgment in favor of Ohio Casualty, and the Petersons appealed. In a memorandum opinion, we determined that deficiencies in the record precluded meaningful appellate review, and we therefore reversed, and remanded for further proceedings. Following remand, the [***2] parties filed cross-motions for summary judgment and supplemented the record. The district court concluded that Ohio Casualty had no obligation to indemnify or defend the Petersons in the Holcomb lawsuit, and entered judgment in its favor. We affirm.
[*703] I. BACKGROUND
On May 10, 1999, Holcomb filed a lawsuit against Peterson, individually, and Anesthesia West, P.C. Thereafter, Holcomb filed several amended petitions which added parties, facts, and claims, culminating in his sixth amended petition filed on November 29, 2001. The Holcomb petition and amended petitions are included in the bill of exceptions and allege the following facts which are not disputed for purposes of this case:
Holcomb and Peterson are anesthesiologists. Both were at one time employees, directors, and shareholders of Anesthesia West, a professional corporation conducting business in Douglas County. On November 30, 1998, Holcomb's employment agreement with Anesthesia West was terminated.
In each petition and amended petition, Holcomb asserted various causes of action against one or more named parties. Included is a defamation claim against Peterson, [**770] in which Holcomb alleged that Peterson had "made false and defamatory" [***3] statements and allegations pertaining to Holcomb's professional competence and his conduct with an employee. In this claim, Holcomb further alleged that Peterson had "made unprivileged publication of . . . false and defamatory communications to third parties, including to Methodist [Hospital] and to third-party physicians and others." The Petersons' coverage claims asserted in this action are based solely on the allegations of Holcomb's defamation claim against Peterson.
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272 Neb. 700 *; 724 N.W.2d 765 **; 2006 Neb. LEXIS 172 ***
John C. Peterson and Kathy M. Peterson, husband and wife, appellants, v. The Ohio Casualty Group, a foreign insurance company, also known as West American Insurance Company, appellee.
Prior History: [***1] Appeal from the District Court for Douglas County: John D. Hartigan, Jr., Judge.
insured, coverage, duty to defend, district court, personal injury, lawsuit, summary judgment, indemnify, parties, allegations, business pursuit, pleadings, underlying insurance, includes, policies, homeowner's policy, amended petition, defamation claim, insurance policy, endorsement, termination, obligate, umbrella, damages, motions
Civil Procedure, Summary Judgment, Motions for Summary Judgment, General Overview, Entitlement as Matter of Law, Declaratory Judgments, State Declaratory Judgments, Appellate Review, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Judicial Review, Question of Law, Appeals, Reviewability of Lower Court Decisions, Preservation for Review, Ordinary & Usual Meanings, Business Insurance, Commercial General Liability Insurance, Duty to Defend, Indemnification, Obligations of Parties, Insurers, Allegations in Complaints