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GERHOLD CONCRETE v. ST. PAUL FIRE INS. CO.

No. S-03-1064.

695 N.W.2d 665 (2005)

269 Neb. 692

GERHOLD CONCRETE COMPANY, INC., a division of Lyman-Richey Corporation, appellee and cross-appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, appellant and cross-appellee, and First Dakota Enterprises, Inc., appellee and cross-appellee.

Supreme Court of Nebraska.

April 28, 2005.

Attorney(s) appearing for the Case

Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, Norfolk, for appellant.

William T. Oakes, Michael J. Leahy, and Andrew C. McElmeel, of Stinson, Morrison & Hecker, L.L.P., Omaha, for appellee Gerhold Concrete Company, Inc.

Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, Norfolk, for appellee First Dakota Enterprises, Inc.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

St. Paul Fire and Marine Insurance Company (St. Paul) provided a payment bond for First Dakota Enterprises, Inc. (First Dakota), a general contractor for a public construction project. Gerhold Concrete Company, Inc. (Gerhold), supplied concrete to CMS, Inc., First Dakota's subcontractor. CMS failed to pay Gerhold for the concrete, and Gerhold sued First Dakota on a contract theory and St. Paul on the performance bond.

The district court dismissed...

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