concurring.
I concur. The majority states, on the issue of proximate causation, that Tess did not rely upon any representations made in the title commitment. I agree that Tess did not see the title insurance commitment.
Tess did however rely on the statements of his agent, Osborne, regarding the title insurance commitment. Osborne was sent a copy of the title insurance commitment. Osborne also persuaded Tess that he did not need to hire an attorney and that the covenants did not apply to his 20-acre parcel, but, instead, pertained only to the 10-acre parcels.
Further, Osborne acted as a dual agent by functioning as seller and trustee of the property as well as Tess’ lender and real estate agent. Under Nebraska law, notice or knowledge of a dual agent is imputed to and binds the principal to whom such notice or knowledge would be imputed if the agent represented him alone. See Thomas v. Jarecki, 109 Neb. 549, 191 N.W. 669 (1922). Thus, Osborne’s notice and knowledge of the title insurance commitment is imputed to Tess. Tess’ reliance on *517Osborne’s statements establishes actual reliance on the document which supports Tess’ claim of negligence.
However, Neb. Rev. Stat. § 76-537(9) (Cum. Supp. 1994) provides that a report of title does not include a title insurance commitment; therefore, no abstracter’s duty arises. In the absence of a duty, there is no negligence.
Caporale, J., joins in this concurrence.