162632P.pdf   08/11/2017  McShane Construction Company  v.  Gotham Insurance Company
   U.S. Court of Appeals Case No:  16-2632
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Shepherd, Author, with Riley and Beam, Circuit Judges] 
   Civil case - Insurance. In action seeking insurance coverage related to 
   the improper installation of a fire detection and suppression system by 
   one of plaintiff's subcontractors, the district court did not err in 
   dismissing the action under Rule 12(b)(6) for failure to state a claim 
   upon which relief can be granted; two of the claims were based on Nebraska 
   statutes which do not provide a private right of action; with respect to 
   claims concerning breach of contract, plaintiff failed to allege a legal 
   obligation to pay any judgment covered under the terms of the policy; 
   similarly there could no be claim for breach of the duties of good faith 
   and fair dealing in the absence of a reasonable basis for denying 
   benefits; plaintiff, a third party beneficiary under the subcontractor's 
   policy failed to plausibly alleged the terms of the policy demonstrate a 
   reasonable intendment to include plaintiff in the subcontractor's Errors 
   and Omissions coverage; mitigation claim was properly rejected as was 
   plaintiff's claim that defendant waived denial of coverage or was estopped 
   from denying coverage because plaintiff detrimentally relied on the 
   existence of coverage when it hired the subcontractor. Judge Beam, 
   concurring in the judgment.