Crane Sales & Serv. Co. v. Seneca Ins. Co.

4. W e do not reacH parker ’S F ourtH aSSignment oF error
[9] Although Parker assigns as error the district court’s find-
ing of clear and convincing evidence that he engaged in unpro-
fessional conduct, he makes no argument to support this assign-
ment. For an appellate court to consider an alleged error, the
error must be both specifically assigned and specifically argued
in the brief of the party assigning the error.28 therefore, we do
not consider his fourth assignment of error.
We have considered Parker’s remaining arguments and con-
clude that they are without merit.
vI. CoNCLuSIoN
We decline to reach the merits of Parker’s due process claims,
his challenges to the constitutionality of statutes, and his claim
that the district court erred in finding clear and convincing evi-
dence that he engaged in unprofessional conduct. We conclude
that the revocation of Parker’s license to practice dentistry was
an appropriate sanction under the circumstances. We affirm
the district court’s order affirming the revocation of Parker’s
dental license.
aFFirmed .
H eavican, C.J., not participating.
28 Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
crane S aleS & S ervice co ., inc ., appellant , v .
S eneca inSurance company , appellee .
754 N.W.2d 607
Filed August 8, 2008. 	No. S-07-799.
1. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R. Pldg.
§ 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint that there is some insu-
perable bar to relief.
2. Pleadings: Appeal and Error. An appellate court reviews de novo a lower court’s
dismissal of a complaint for failure to state a claim.
3. ____: ____. When analyzing a lower court’s dismissal of a complaint for failure to
state a claim, an appellate court accepts the complaint’s factual allegations as true
and construes them in the light most favorable to the plaintiff.
372 	276 NEBRASkA REPoRtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

4. Summary Judgment: Motions to Dismiss: Rules of the Supreme Court:
Pleadings. Neb. Ct. R. Pldg. § 6-1112(b) provides that when matters outside of
the pleadings are presented by the parties and accepted by the trial court under
§ 6-1112(b)(6), the motion shall be treated as a motion for summary judgment.
5. Pleadings. matters outside the pleadings can include written or oral evidence either
in support of or in opposition to the pleading which provides some substantiation
for and does not merely reiterate what is said in the pleadings.
6. Summary Judgment: Motions to Dismiss: Notice. When receiving evidence that
converts a motion to dismiss into a motion for summary judgment, the trial court
should give the parties notice of the changed status of the motion and a reasonable
opportunity to present all material made pertinent to such a motion.
Appeal from the District Court for Douglas County, J. micHael
coFFey, Judge, on appeal thereto from the County Court for
Douglas County, J oSepH p. caniglia, Judge. Judgment of District
Court reversed, and cause remanded with directions.
gregory C. Scaglione and R. Scott Johnson, of koley Jessen,
P.C., L.L.o., for appellant.
matthew v. Rusch, thomas J. Culhane, and katrina L.
Smeltzer, of Erickson Sederstrom, P.C., for appellee.
H eavican, 	C.J., 	W rigHt, 	connolly, 	gerrard, 	S tepHan,
mccormack, and miller -lerman, JJ.
H eavican, C.J.
FACtuAL BACkgRouND
Crane Sales & Service Co., Inc. (Crane), is in the business of
leasing and servicing crane equipment. In the course of this busi-
ness, Crane, acting as lessor, entered into an equipment rental
agreement dated December 10, 2002, with Duncan & Associates
Crane Rentals, Inc. (Duncan), named as lessee. Per this agree-
ment, Duncan was required to provide to Crane “an insurance
certificate naming Crane . . . as addi[ti]onal insured and loss
payee.” the certificate was to have a value of $150,000.
on December 11, 2002, Duncan provided Crane with a cer-
tificate of liability insurance and certificate of property insur-
ance, which identified Seneca Insurance Company (Seneca)
as insurer, Duncan as the insured, and Crane as the certificate
holder. the certificate also stated that the “certificate holder is
CRANE SALES & SERv. Co. v. SENECA INS. Co. 	373
Cite as 276 Neb. 372

listed as Loss Payee and Additional Insured.” the certificate
noted that it was “issued as a matter of information only and
confers no rights upon the certificate holder. this certificate
does not amend, extend or alter the coverage afforded by the
policies below.”
the record indicates that the equipment in question was in
working order on the date the rental agreement was signed.
however, in its complaint, Crane alleged that upon the return of
the equipment to Crane, damage in the amount of $15,040.25
had been incurred. that damage was repaired, and Duncan was
billed. Despite making written and oral demands on Duncan,
Duncan never paid for the damage.
Crane brought suit against Duncan and Seneca on march 13,
2006, in Douglas County Court. thereafter, on April 20, Seneca
filed a motion to dismiss for failure to state a claim under Neb.
Ct. R. Pldg. § 6-1112(b)(6). on may 26, Seneca filed a notice
with the county court expressing its intent to introduce the affi-
davit of Ellen o’Connor in support of its motion to dismiss.
o’Connor’s affidavit was attached to Seneca’s notice.
In that affidavit, o’Connor, a vice president with Seneca,
averred that Seneca had issued a contractor’s equipment policy
to Duncan for the policy period from February 16, 2000, to
February 16, 2001, and that the policy was continuously renewed
through the policy period ending February 16, 2004. Portions of
the applicable insurance policy were also attached as exhibits to
o’Connor’s affidavit.
A hearing was held on Seneca’s motion to dismiss on August
24, 2006. At that hearing, one exhibit—o’Connor’s affidavit—
was introduced. Crane did not object to the introduction of
evidence in general or to o’Connor’s affidavit in particular.
on August 31, the court granted Seneca’s motion, conclud-
ing that the policy issued to Duncan did not name Crane as
an additional insured. the court also found that there was no
contractual relationship between Crane and Seneca, and that
without such a relationship, Crane lacked standing and could
not maintain a direct action against Seneca. Finally, the court
found that Crane lacked standing as a third-party beneficiary to
the contract between Duncan and Seneca. As such, the county
court dismissed Crane’s suit as to Seneca. Default judgment
374 	276 NEBRASkA REPoRtS

had already been entered in Crane’s favor against Duncan on
June 21.
Crane appealed the decision of the county court to the dis-
trict court on September 18, 2006. the district court affirmed
the county court’s decision on July 2, 2007. on July 18, Crane
appealed to the Court of Appeals. We moved this case to our
docket pursuant to our statutory authority to regulate the dockets
of this court and the Nebraska Court of Appeals.1
ASSIgNmENtS oF ERRoR
on appeal, Crane assigns that the district court erred by
affirming the county court’s decision. In particular, Crane argues,
restated, that the court erred by (1) not finding that Crane was
a named insured under the insurance policy, (2) finding that
Crane’s status as a loss payee did not give it standing to file a
direct claim under the policy, and (3) finding that Crane was not
a third-party beneficiary of the policy.
ANALySIS
We first consider, and find dispositive, a procedural issue
presented in this case—namely, whether the district court ruled
on and dismissed Crane’s action for the failure to state a claim
under § 6-1112(b)(6) or whether Crane’s motion had been con-
verted to a motion for summary judgment.
It is clear that Seneca filed a motion to dismiss for failure to
state a claim under § 6-1112(b)(6). the county court dismissed
Crane’s action for this reason. the parties brief this case as if it
were decided under § 6-1112(b)(6). And at oral argument, both
parties contended this case was dismissed for failure to state a
claim under § 6-1112(b)(6).
[1-3] Dismissal under § 6-1112(b)(6) should be granted only
in the unusual case in which a plaintiff includes allegations
that show on the face of the complaint that there is some
insuperable bar to relief.2 An appellate court reviews de novo
a lower court’s dismissal of a complaint for failure to state a
1 Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
2 Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
CRANE SALES & SERv. Co. v. SENECA INS. Co. 	375
Cite as 276 Neb. 372

claim.3 When analyzing a lower court’s dismissal of a com-
plaint for failure to state a claim, an appellate court accepts the
complaint’s factual allegations as true and construes them in the
light most favorable to the plaintiff.4
As an initial matter, we agree with Crane that its complaint,
considered alongside the certificate of insurance attached to the
complaint,5 when considered in a light most favorable to Crane,
was sufficient to state a claim under § 6-1112(b)(6).
[4-6] however, § 6-1112(b) also provides that when mat-
ters outside of the pleadings are presented by the parties and
accepted by the trial court under § 6-1112(b)(6), the motion
“shall be treated” as a motion for summary judgment. matters
outside the pleadings can include written or oral evidence either
in support of or in opposition to the pleading which provides
some substantiation for and does not merely reiterate what is
said in the pleadings.6 We have noted that when receiving evi-
dence that converts a motion to dismiss into a motion for sum-
mary judgment, the trial court should give the parties notice of
the changed status of the motion and a reasonable opportunity to
present all material made pertinent to such a motion.7
the controlling procedural issue presented by this appeal,
then, is whether this § 6-1112(b)(6) motion was converted to a
motion for summary judgment. It is apparent that matters outside
the pleadings, specifically o’Connor’s affidavit, which included
six exhibits, were presented and accepted by the trial court. We
therefore conclude that under § 6-1112(b), Seneca’s purported
motion to dismiss for failure to state a claim under § 6-1112(b)(6)
was converted to a motion for summary judgment.
having concluded that the motion was converted to a motion
for summary judgment, we are next presented with the question
of whether the county court provided the parties with adequate
3 Id.
4 Id.
5 See Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574
(2005).
6 See Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
7 Id.
376 	276 NEBRASkA REPoRtS

notice that the motion had been converted and whether the court
provided Crane with a reasonable opportunity to present all
material made pertinent to such a motion. We conclude that such
was not given.
First, there is no evidence in the record that the county court
explicitly alerted the parties to the fact that the motion to dismiss
had been converted into a motion for summary judgment. In
fact, a review of the record suggests that the county court itself
might have been unaware that by accepting o’Connor’s affida-
vit, § 6-1112(b) required it to treat the motion as a motion for
summary judgment.
In 	addition, 	throughout 	these 	proceedings, 	both 	parties
have treated Seneca’s motion as a motion to dismiss under
§ 6-1112(b)(6), rather than as a motion for summary judg-
ment. there is no indication from the record that at the time
of the hearing, either party believed the motion had been con-
verted into a motion for summary judgment. Both parties have
briefed this case on appeal as if it were a motion to dismiss. At
oral argument, both parties continued to maintain that it was
a motion to dismiss, despite explicit questioning by this court
regarding whether the motion might instead have been for sum-
mary judgment.
Finally, a review of the record demonstrates that while Crane
did not object to the admission of o’Connor’s affidavit, Crane
also did not introduce any of its own evidence at the August
24, 2006, hearing, nor was it given the explicit opportunity to
do so. And there is no indication from this record that Crane
was given the opportunity to conduct discovery in this case.
on appeal, Crane contends that if it were allowed to conduct
discovery, it would be able to prove its standing as an addi-
tional insured.
We conclude that adequate notice of the conversion from a
motion to dismiss to a motion for summary judgment was not
provided and that Crane was not given a reasonable opportunity
to present all material pertinent to a motion for summary judg-
ment. We therefore reverse the decision of the district court
affirming the dismissal of Crane’s suit and remand the cause
to the district court with directions to remand the matter to the
county court for further proceedings.
CRANE SALES & SERv. Co. v. SENECA INS. Co. 	377
Cite as 276 Neb. 372

CoNCLuSIoN
Crane’s motion to dismiss was converted to a motion for sum-
mary judgment under § 6-1112(b). however, the parties were
not given sufficient notice of that conversion, nor was Crane
provided with a reasonable opportunity to present any material
it might find relevant to a motion for summary judgment. As
such, we reverse the judgment of the district court and remand
the cause to the district court with directions.
reverSed and remanded WitH directionS.
378 	276 NEBRASkA REPoRtS