1 CASE LAW UPDATE: TORTS/NEGLIGENCE Joshua R. Strief | Elverson Vasey [email protected] | 515-243-1914 IOWA SUPREME COURT OPINIONS – 2018-2019 TERM 1. WEIZBERG, ET AL. V. CITY OF DES MOINES, ET AL., No. 17-1489 (Iowa August 31, 2018) (Amended April 26, 2019) o Facts: Plaintiffs challenged the Des Moines Automated Traffic Enforcement program, claiming it violated equal protection, due process, and privileges and immunities clauses of the Iowa Constitution and unjustly enriched the City and administrator of the program, Gatso USA, Inc. The City of Des Moines appealed the district court’s grant of summary judgment on Plaintiffs’ procedural due process claim. Plaintiffs cross-appealed the district court’s dismissal of Plaintiffs’ equal protection, substantive due process, and privileges and immunities claims. o Holding: On the City’s appeal, the Court reversed the district court holding and found the program did not violate procedural due process. On the Plaintiffs’ appeal, the Court reversed the district court and allowed Plaintiffs’ equal protection, substantive due process, and privileges to proceed while also holding there may be claims for damages under the Iowa Constitution. o Why It Matters: The Court reinforced the fact that a motion to dismiss should be used in only limited circumstances. The Court held the Plaintiffs’ claims should not have been dismissed due to a motion to dismiss, as Plaintiffs could have developed factual support for each of their constitutional claims. The Court also reiterated the position that a Plaintiff may claim damages if they prevail on constitutional claims based on self-executing provisions. 2. BEHM, ET AL. V CITY OF CEDAR RAPIDS, ET AL., No. 16-1031 (Iowa January 25, 2019) (Amended April 9, 2019) o Facts: Plaintiffs challenged the City of Cedar Rapids Automated Traffic Enforcement system, claiming it violated equal protection, due process, and privileges and immunities clauses of the Iowa Constitution, that it was an unconstitutional delegation of governmental power to a private entity, and that the City and Gatso USA, Inc., were unjustly enriched by the system. Plaintiffs appeal from the district court’s grant of summary judgment in favor of Defendants. o Holding: The district court properly granted summary judgment in favor of Defendants. o Why It Matters: The Court clarified that fact-finding in constitutional tort claims concerning equal protection, privileges and immunities, and substantive due process is limited to considering whether the asserted purposes of the statute in light of the developed record are realistically conceivable, have a basis in fact, and whether the means chosen are rationally related to that legitimate purpose. Among its consideration of various constitutional matters, the Court held a government may rationally decide to confront part of a problem rather than the whole problem due to
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CASE LAW UPDATE: TORTS/NEGLIGENCE Joshua R. Strief | Elverson Vasey
1. WEIZBERG, ET AL. V. CITY OF DES MOINES, ET AL., No. 17-1489 (Iowa August 31, 2018) (Amended April 26, 2019)
o Facts: Plaintiffs challenged the Des Moines Automated Traffic Enforcement program, claiming it violated equal protection, due process, and privileges and immunities clauses of the Iowa Constitution and unjustly enriched the City and administrator of the program, Gatso USA, Inc. The City of Des Moines appealed the district court’s grant of summary judgment on Plaintiffs’ procedural due process claim. Plaintiffs cross-appealed the district court’s dismissal of Plaintiffs’ equal protection, substantive due process, and privileges and immunities claims.
o Holding: On the City’s appeal, the Court reversed the district court holding and found the program did not violate procedural due process. On the Plaintiffs’ appeal, the Court reversed the district court and allowed Plaintiffs’ equal protection, substantive due process, and privileges to proceed while also holding there may be claims for damages under the Iowa Constitution.
o Why It Matters: The Court reinforced the fact that a motion to dismiss should be used in only limited circumstances. The Court held the Plaintiffs’ claims should not have been dismissed due to a motion to dismiss, as Plaintiffs could have developed factual support for each of their constitutional claims. The Court also reiterated the position that a Plaintiff may claim damages if they prevail on constitutional claims based on self-executing provisions.
2. BEHM, ET AL. V CITY OF CEDAR RAPIDS, ET AL., No. 16-1031 (Iowa January 25, 2019) (Amended April 9, 2019)
o Facts: Plaintiffs challenged the City of Cedar Rapids Automated Traffic Enforcement system, claiming it violated equal protection, due process, and privileges and immunities clauses of the Iowa Constitution, that it was an unconstitutional delegation of governmental power to a private entity, and that the City and Gatso USA, Inc., were unjustly enriched by the system. Plaintiffs appeal from the district court’s grant of summary judgment in favor of Defendants.
o Holding: The district court properly granted summary judgment in favor of Defendants.
o Why It Matters: The Court clarified that fact-finding in constitutional tort claims concerning equal protection, privileges and immunities, and substantive due process is limited to considering whether the asserted purposes of the statute in light of the developed record are realistically conceivable, have a basis in fact, and whether the means chosen are rationally related to that legitimate purpose. Among its consideration of various constitutional matters, the Court held a government may rationally decide to confront part of a problem rather than the whole problem due to
cost of confronting the whole problem (meaning exclusion of semi-truck drivers and government vehicles from the system was not unconstitutional).
3. MUMM V. JENNIE EDMUNDSON MEMORIAL HOSPITAL, ET AL., No 17-1934 (Iowa March 1, 2019)
o Facts: Plaintiff suffered a stroke while confined in a halfway house. She sued the halfway house claiming it failed to get her the necessary medical attention, and she sued the emergency room physician for negligent care that led to delayed detection and treatment of the stroke. Before trial, Plaintiff settled with the halfway house, leaving the physician as the sole Defendant at trial. The halfway house was listed on the verdict form. The jury submitted two questions to the judge during deliberations, one concerning whether Plaintiff would receive only 25% damages if the jurors attributed 25% fault to the physician and 75% fault to the halfway house, and the other concerning why the halfway house was still on the verdict form. The district court answered the questions by directing the jurors back to the instructions, though the instructions didn’t explain the effect of fault allocation. The jury found the physician was not negligent. Plaintiff appeals claiming the court should have indicated yes to the jurors’ first question about whether Plaintiff would have recovered 25% damages if 25% fault was attributed to the physician.
o Holding: Although the district court probably should have actually answered the jurors’ question on Plaintiff’s potential recovery, the district court did not abuse its discretion because the verdict attributed no fault to the physician and Plaintiff failed to provide a transcript of any portion of the trial.
o Why It Matters: The Supreme Court suggested courts may need to provide supplemental instructions in response to juror questions during deliberations. This includes an instruction on the effect of attributing fault to parties that have previously settled a plaintiff’s claims against them that still appear on the verdict form. In this case, there was no prejudice because the jury’s verdict unanimously indicated the physician had no fault. However, the Court also suggests it had an inadequate record of the trial to rule any differently, meaning the result in this case may have been different had the Plaintiff submitted portions of the trial transcript to suggest the answer to the jury question was prejudicial.
4. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY V. AUTO-OWNERS MUTUAL INSURANCE COMPANY, No. 18-0129 (Iowa March 8 2019) (Amended May 14, 2019)
o Facts: A dentist and his wife formed an LLC that held title to investment properties, including a farmhouse where an accidental shooting occurred. The dentist had purchased personal (homeowner’s) liability insurance and commercial general liability insurance coverage for the property. The commercial general liability insurer denied coverage. The homeowners’ insurance settled the death claim from the shooting for $900,000.00 and sued the commercial general liability carrier for indemnity. The district court entered judgment against the commercial general liability carrier for $450,000.00, from which the commercial general liability carrier appeals.
o Holding: The Supreme Court upheld the district court’s judgment against the commercial liability carrier for $450,000.00.
o Why It Matters: Relative to torts, the Court held the individual who was supposed to secure the house could be engaged in business activities and recreational activities at the same time so as to trigger liability for the LLC. Although, he had been riding dirt bikes and ATVs at the property that day, securing the house was done for both business and personal reasons, meaning he was engaged in the conduct of business at the time of the accidental shooting. The Court also held the LLC may have been liable under a premises liability theory. This is because the individual responsible for securing the house the day of the accident knew the loaded rifle had been left on the bed for several months, meaning his knowledge of the rifle was imputed to the LLC, and a reasonable inspection would have discovered the rifle on the bed. Finally, the Court held a $900,000.00 settlement with disputed liability is a reasonable amount for the accidental death of a healthy seventeen-year-old.
5. DE DIOS V. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, ET AL., No. 18-1227 (Iowa May 10, 2019) (Amended May 14, 2019)
o Facts: A worker was injured on the job when his vehicle was rear-ended. He filed a claim for workers’ compensation benefits with the workers’ compensation commission. The worker then filed a bad-faith action against his employer’s workers’ compensation carrier and its third-party administrator. The case was removed to federal court, and the federal district court certified the following question to the Iowa Supreme Court: In what circumstances, if any, can an injured employee hold a third-party claims administrator liable for the tort of bad faith for failure to pay workers’ compensation benefits?
o Holding: The Supreme Court held a common law cause of action for bad-faith failure to pay workers’ compensation benefits is not available against a third-party claims administrator for a workers’ compensation insurance carrier.
o Why It Matters: The ruling is a win for third-party claims administrators in workers’ compensation, as it limits them from bad faith liability in the workers’ compensation context. The decision also narrows the Supreme Court’s position in Bremer v. Wallace, 728 N.W.2d 803 (Iowa 2007), in which the Court had held any entity that is “the substantial equivalent” of an insurer” should be liable in bad faith. The Court rejected the Plaintiff’s argument that a third-party administrator was “the substantial equivalent” of an insurer. Instead, the Court narrowly read Bremer to liken a self-insured employer to “the substantial equivalent” of an insurer in workers’ compensation while exempting third-party administrators from the comparison. However, the Supreme Court majority decision includes multiple reminders for insurers that the insurers themselves will likely be held vicariously liable for the actions of their third-party administrators that may constitute bad faith.
6. MILAS V. SOCIETY INSURANCE, ET AL., No. 16-2148 (Iowa May 31, 2019) o Facts: A treating physician filed suit against a workers’ compensation insurance
carrier and its claims adjuster after the carrier declined to pay his entire fee for an elective surgery approved by the insurance carrier. The physician asserted claims for breach of contract, negligent misrepresentation, and fraudulent misrepresentation, but the district court dismissed the negligent and fraudulent misrepresentation claims on summary judgment. The district court also declined to submit the issue of punitive damages to the jury. The jury awarded the physician $14,325.87, and the physician
appeals the dismissal of the misrepresentation claims and failure to submit punitive damages to the jury.
o Holding: Because the Supreme Court was evenly divided, the district court’s decision was affirmed by operation of law.
o Why It Matters: Although the decision did not result in binding authority concerning misrepresentation claims or submission of punitive damages, it was the next-best-case-scenario to a majority decision for the Defendants. Justices Waterman, Mansfield, and Christensen sided with the district court, while Justices Cady, Wiggins, and Appel would have reversed the judgment of the district court.
7. FREER, ET AL. V. DAC, INC., No. 17-1825 (Iowa June 14, 2019) o Facts: During juror deliberations in a wrongful death jury trial, counsel for each party
entered into a high-low settlement agreement of $100,000.00 on the low and $1,000,000.00 on the high. The jury returned a defense verdict, and on July 25, 2017, the Court entered judgment in favor of Defendant. Plaintiffs filed a motion for new trial and change of venue, alleging various violations of motion in limine, denying motions for mistrial, failing to notify counsel of jury communications, and undue influence of Defendant over the jury. The Defendant filed a motion to enforce the high-low settlement agreement. At a hearing on the post-trial motions, Defendant’s motion to enforce the high-low settlement agreement was granted and judgment was pronounced from the bench. Before entry of a written order on the post-trial motions, Plaintiffs appealed and the appeal was retained. The Supreme Court remanded to the district court, which entered a written order on the post-trial motion.
o Holding: The Supreme Court affirmed the district court’s July 25, 2017 order entering judgment in favor of Defendant.
o Why It Matters: This case highlights the need for strict adherence to the Iowa Rules of Appellate Procedure. The Court held that by filing the notice of appeal, the Plaintiffs waived Plaintiffs’ post-trial motion and thus failed to preserve any issues for appellate review. Had Plaintiffs simply waited until the district court filed a written order concerning the post-trial motions (the time to file a notice of appeal was tolled per Iowa Rule of Appellate Procedure 6.101(1)(b)) before filing the appeal, Plaintiffs would have at the least been entitled to judgment awarding them the “low” of $100,000.00 and at best been allowed to proceed with their appeal.
8. BALDWIN V. CITY OF ESTHERVILLE, No. 18-1856 (Iowa June 14, 2019) o Facts: Officers of the Estherville City Police were shown a video of Gregory Baldwin
riding an ATV on streets, in ditches, and using the north Joe Hoye Park entrance. The officers concluded the conduct violated a law concerning ATVs in the Iowa Code, which they believed had been incorporated into a City Ordinance. However, the law had not been incorporated into the City Ordinance. After failing to serve the citation, a warrant was issued and Gregory Baldwin was arrested. In the days that followed, the City Attorney was granted leave to amend the charge to allege a violation of a different ordinance concerning operation of ATVs in city parks. The citation was dismissed by the state district court. Plaintiff proceeded to file constitutional tort claims, and the federal district court certified six questions to the Iowa Supreme Court.
o Holding: 1. If a City’s police officers exercised due care in executing an ordinance, the City would be immune pursuant to Iowa Code Section 670.4(1)(c); 2. Iowa Code Section 670.4(1)(e) precludes an award of punitive damages against a municipality employing a constitutional tortfeasor; 3. A court can’t award attorney fees against a municipal employer of a constitutional tortfeasor unless there is a statute expressly allowing such an award, and it is up to the trial court to determine whether a Plaintiff meets the common law standard for an award of attorney fees; 4. If Plaintiff is entitled to an award of common law attorney fees, the court may retroactively award attorney fees in the case.
o Why It Matters: The Supreme Court’s decision reinforces the Iowa statutory provisions that provide municipalities some insulation from liability for the tortious acts of their employees, both by providing immunity for certain claims (such as an officer exercising “due care”) and providing immunity for certain types of damages (such as punitive damages).
9. HEDLUND V. STATE OF IOWA, ET AL., No. 18-0567 (Iowa June 28, 2019) o Facts: Plaintiff challenges a district court order granting Defendants’ Motion for
Summary Judgment on all claims in an employment case. More specifically, Plaintiff asserts the district court erred in finding judicial review after the administrative process was the exclusive means for redress of alleged whistleblower retaliation, erred in denying his age discrimination claim, and erred in finding no outrageous conduct sufficient to support his claim of intentional infliction of emotional distress.
o Holding: Regarding the intentional infliction of emotional distress claim, the Supreme Court affirmed the district court ruling that none of the conduct satisfied the “outrageousness” requirement.
o Why It Matters: In this high-profile case, which involved the “hard ninety” radio communication by Plaintiff, Larry Hedlund, the Court rejected Plaintiff’s argument that placing him on administrative leave deliberately endangered lives. The Court also rejected Plaintiff’s argument that his supervisors repeated known falsehoods knowing about his threat to public safety while knowing Governor Branstad would advertise them statewide. While the Court acknowledged certain aspects of Defendants’ actions could be seen as petty, wrong, or even malicious, and may arouse resentment against the defendants, such conduct did not rise to the level of outrageousness required for intentional infliction of emotional distress (citing to the fact the conduct he endured was not comparable to unremitting psychological warfare over a substantial period of time).
IOWA COURT OF APPEALS OPINIONS – 2018-2019 TERM 1. ESTATE OF LUCAS LODERMEIER V. TIMMONS, No. 18-0027 (Iowa Ct. App. Sept. 12,
2018) o Facts: Lucas Lodermeier was injured in an accident for which he wasn’t at fault, and
the other driver died. His attorney failed to file suit within the statute of limitations, so Lodermeier sued his attorney for legal malpractice. Lodermeier died before his deposition testimony could be taken. The district court dismissed the case on directed verdict finding no evidence of the collectability of the claim against the initial defendant had been submitted, and Plaintiff appeals.
o Holding: The district court’s decision in favor of Defendant was affirmed. o Why It Matters: In a legal malpractice claim, failure to provide substantial evidence
from which a jury could reasonably find a prior judgment would have been collectible is critical to the claim. Collectability could be presented by evidence from an insurance company regarding a policy, a check stub, or other documentation proving any level of insurance coverage or collectability for the initial defendant.
2. EMBRING V. OB-GYN SPECIALISTS, P.C., ET AL., No. 18-0104 (Iowa Ct. App. Sept. 12, 2018)
o Facts: Summary judgment was granted in favor of Defendants in this medical malpractice action on the ground that Plaintiff’s lack of expert testimony on the standard of care prevented her from establishing a prima facie case of medical negligence. One of Plaintiff’s experts died before providing an opinion as to the applicable standard of care, and the Plaintiff’s other expert couldn’t testify as to that standard. Plaintiff’s motion for additional time to respond to the summary judgment motion, as well as extend the expert deadlines, were both denied.
o Holding: The district court’s decision in favor of Defendant was affirmed. o Why It Matters: First, the Court of Appeals held Plaintiff failed to show good cause
for an extension of Plaintiff’s expert deadlines, as Plaintiff would have presumably contacted the doctor after receiving Defendants’ requests to depose the doctor four months before Plaintiff supposedly discovered the doctor’s death. The Court also assumed Plaintiff would have contacted the doctor to notify him of a new trial date in the case, as the case was continued. In the future, parties could use this ruling to suggest there is an affirmative obligation to notify retained experts of a new trial date when there is a continuance. Finally, in order to preserve error on appeal, parties must file a resistance to a motion for summary judgment or at least file a motion to enlarge.
3. WADDELL V. UNIVERSITY OF IOWA COMMUNITY MEDICAL SERVICES, INC., No. 17-0716 (Iowa Ct. App. Sept. 26, 2018)
o Facts: Summary judgment was granted in favor of Defendant in this medical malpractice action on the issue of causation. The district court initially denied the motion for summary judgment as to causation. The district court later ruled a nurse expert for Plaintiff could not testify as to causation, leaving Plaintiff to establish causation with treating physicians. After this ruling, Defendant moved for reconsideration of its Motion for Summary Judgment on causation, which the court
granted. Plaintiff appealed claiming no facts or law changed between the initial and later summary judgment rulings, meaning the decision should not have changed.
o Holding: The district court’s decision in favor of Defendant was affirmed. o Why It Matters: The Court held that general statements by treating physicians such
as ‘the sooner you get treatment the better” were insufficient to create a jury questions as to causation when plaintiff argued violations of the standard of care resulted in delayed treatment and increased likelihood of the cancer spreading.
4. STATE FARM INSURANCE V. CHRISTINE WARTH, ET AL., No. 17-1469 (Iowa Ct. App. Sept. 26, 2018)
o Facts: An automobile owner whose minor son crashed into a horse trailer appeals the award of property damages to the insurance company that paid claims to its customer who owned the trailer.
o Holding: The Court reversed the district court’s award of $12,373.00 in damages to State Farm because exhibits relied upon to establish the amount of damages to the trailer contained inadmissible hearsay.
o Why It Matters: The Court faulted Plaintiff for failing to call any qualified witnesses to testify who had the requisite knowledge concerning an estimate under the business records exception, finding testimony of a claims handler and Plaintiff’s customer were insufficient under the “requisite knowledge” requirement of the business records exception. Also, the Court faulted the district court for failing to specifically identify how the five elements of the residual exception to hearsay were satisfied in this case.
5. ESTATE OF PAYTON MONTANA CATELL, ET AL. V. WRAY, No. 17-1504 (Iowa Ct. App. Sept. 26, 2018)
o Facts: Parents of a teenager who died in a dirt bike vehicle accident appeal the jury’s verdict of no fault. Defendant put on her left turn signal and turned into her driveway. During the turn, the deceased Payton Catell, who was riding a dirt bike, collided with the side of the turning van. Plaintiff claims the jury should have found Defendant had some fault for failure to maintain a proper lookout.
o Holding: The court affirmed the no fault determination in favor of Defendant. o Why It Matters: The Court found the following evidence supported the jury’s
decision: Defendant used her turn signal, slowed down before the turn, checked her mirrors, proceeded to turn but caught a glimpse of something as she turned before Payton collided with her van; Payton was driving a dirt bike that wasn’t street legal while travelling faster than the speed limit, and only used the rear brake to try to stop rather than both the front and rear brakes. The Court also ruled jury instructions concerning the fact Payton didn’t have a motorcycle license were proper when Defendant claimed the license reflected a certain level of requisite education and skills to operate the motorcycle and the Defendant produced expert testimony showing a more skilled rider would know to use the front and rear brakes to stop. Finally, the Court ruled that the mere fact an individual has a pulse does not mean they suffer pain or were conscious.
6. TAMAYO V. DEBRAH, ET AL., No. 17-0971 (Iowa Ct. App. Oct. 10, 2018) o Facts: Plaintiff appeals two district court rulings in a medical malpractice action
concerning a patient who contracted a deep-tissue infection after surgery. Defendants provided Plaintiff with two extensions of Plaintiff’s statutory deadlines, but Plaintiff failed to provide the expert certification until almost two months after the extensions. The district court struck Plaintiff’s expert witnesses for failure to timely designate them and granted summary judgment to defendants.
o Holding: The district court’s ruling was affirmed. o Why It Matters: The Court held Defendants’ counsel’s agreement to extend the
statutory deadline for Plaintiff’s experts did not constitute a complete waiver of the deadline and instead was a professional courtesy by Defendants’ counsel. The Court also held that, although trial was not imminent, Defendants suffered some prejudice by the delay in Plaintiff’s expert certification and later report disclosure. Finally, Defendants’ counsel had no obligation to remind Plaintiff of the deadline before moving to strike her experts, as the missed statutory deadline was not a discovery dispute requiring conferral amount counsel to resolve.
7. HOLST V. STAPLETON, ET AL., No. 17-1270 (Iowa Ct. App. Oct. 24, 2018) o Facts: This case arises from a vehicle accident. Among damages awarded by the
jury at trial were $15,607.09 for past medical expenses, $75,000.00 for future loss of function of the mind and body, and $75,000.00 for future medical pain and suffering. Plaintiff appeals the district court’s decision granting defendants’ motion for judgment notwithstanding the verdict on the issue of future damages, and Defendants cross-appeal the denial of the motion concerning certain past medical expenses. This
o Holding: The district court’s decisions as to both future damages and past medical expenses were affirmed.
o Why It Matters: The Court upheld the decision to set aside the awards of future pain and suffering and loss of function, finding the following testimony did not constitute the Plaintiff would have future damages within a reasonable degree of medical certainty: 1. The treating physician couldn’t comment on whether the patient suffered a permanent injury from the accident; 2. The treating physician testified the Plaintiff “might” need physical therapy and “might” need to continue with the pain clinic; 3. The treating physician testified she treats the Plaintiff currently for conditions aggravated by the accident and then discussed the Plaintiff’s anxiety that was worsened after the accident as well as pain management. The Court also upheld the decision to leave the jury’s award of past medical expenses in place, despite the fact the treating physician testified that she believed the accident caused or aggravated Plaintiff’s hip pain and later testified she couldn’t say with certain the accident caused the hip pain and doesn’t know if the accident caused the hip pain (citing to the fact the jury has the right to accept and reject testimony, even if it is uncontroverted expert testimony).
8. DEVOLDER V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ET AL., No. 17-1671 (Iowa Ct. App. Oct. 24, 2018).
o Facts: Plaintiffs appeal the grant of summary judgment in favor of Defendants on their breach of contract, first-party bad faith, and fraud in processing insurance claims. The case concerns Plaintiff’s claim with State Farm concerning a lost ring.
o Holding: The Court affirmed the dismissal of the bad faith and fraud in processing claims but reversed on the breach of contract claim and remanded to the district court.
o Why It Matters: The Court held State Farm had not committed bad faith because State Farm had not yet denied Plaintiff’s claim and had instead offered a replacement ring sharing many characteristics of the lost ring or its cost.
9. THUNDER & LIGHTNING, INC. V. 435 GRAND AVENUE, LLC, ET AL., No. 17-0718 (Iowa Ct. App. Nov. 7, 2018).
o Facts: Plaintiff appeals an order dismissing its trespass claims and an order awarding sanctions against Plaintiff and its attorneys for violating Iowa Rule of Civil Procedure 1.413.
o Holding: The Court found Defendants entered the leased premises without consent and remanded the case to the district court to determine damages. The Court upheld the sanction against Thunder & Lightning and its attorney for violating rule 1.413 by failing to conduct a reasonable inquiry before initiating a contempt action.
o Why It Matters: Because the lease did not provide a right of entry to the property owners, there was no legal right for Defendants to enter the property under the circumstances. The Court upheld the sanctions against Plaintiff and its attorneys because the Plaintiff filed a contempt action without investigation as to whether there was any willful disobedience of a court order, and the facts later disclosed there was no willful disobedience.
10. SUSIE V. FAMILY HEALTH CARE OF SIOUXLAND, P.L.C., No. 17-0908 (Iowa Ct. App. Nov. 7, 2018)
o Facts: Plaintiff appeals the district court’s decision to grant summary judgment in favor of Defendants in a medical malpractice action. Plaintiff fell on her right arm, went to a clinic, was prescribed pain pills and sent home, and later was found to have a flesh-eating disease. Plaintiff’s expert was expected to testify the clinic should have performed blood work and prescribed an antibiotic rather than just prescribe pain pills and provide a shot to her arm.
o Holding: The Court reversed the dismissal by the district court. o Why It Matters: The Court of Appeals relied on an Iowa Supreme Court case,
Becker v. D & E Distrib. Co., 247 N.W.2d 727, 730 (Iowa 1976) for the proposition that the combination of “possibility” testimony by a medical doctor (rather than the probability/likelihood that is typically required) combined with non-expert testimony saying the condition at issue didn’t exist before the occurrence was enough to submit the issue of causation to a jury. The Court also held that in lost chance of survival claims, Plaintiffs only need to show the chance of survival or cure was reduced rather than showing a specific percentage of the loss caused by defendant’s actions.
o Facts: Plaintiff appeals two evidentiary rulings following a jury trial resulting in a defense verdict on Plaintiff’s medical malpractice claim. The district court withheld testimony from a treating physician about when different ultrasounds were used during pregnancy claiming it was not an issue during the treatment of the Plaintiff and thus fell into retained expert territory. The district court allowed testimony from a nurse testifying for the Defendants about interpretation of laboratory results.
o Holding: The district court’s ruling was affirmed. o Why It Matters: The decision reinforces the fact that treating physicians’ testimony
must be narrowly focused on matters that arose during the physician’s treatment. Comments about timing of the ultrasound tests in this case amounted to testimony about the standard of care, which was expert testimony that should have been disclosed.
12. MOORE V. WINNESHIEK MEDICAL CENTER, ET AL., No. 17-0983 (Iowa Ct. App. Nov. 7, 2018)
o Facts: Defendants appeal from a jury verdict against them in a medical malpractice case, claiming Plaintiff failed to prove a breach of the standard of care or causation.
o Holding: The Court of Appeals affirmed the lower court ruling, finding Plaintiff’s experts generated fact questions based on their testimony alone and the issues were properly submitted to the jury.
o Why It Matters: This opinion helps illustrate the reluctance of the Court to set aside a jury verdict when confronted with questions of fact between experts.
13. SUNBERG, ET AL. V. AUDUBON COUNTY, IOWA, ET AL., No. 17-1192 (Iowa Ct. App. Nov. 21, 2018)
o Facts: Plaintiffs claim Defendants owe statutory, contractual, and common law duties to maintain a soil and water conservation structure located on Plaintiffs’ property. The district court ruled there was no duty owed by Defendants to Plaintiffs and, even if a duty was owed, allowing accumulation of silt was not a breach of the duty to maintain.
o Holding: The district court’s ruling was affirmed. o Why It Matters: First, the Court found the statutes cited by Plaintiffs provided no
right to sue and there was no argument the legislature intended to create a private right to sue. Also, because the parties to this case have a contract dictating the extent of the Defendants’ easement, the common law duty to maintain does not apply and is instead a contractual issue.
14. COFFIN V. DOHERTY, No. 17-1432 (Iowa Ct. App. Nov. 21, 2018) o Facts: Following a jury trial in which the jury found Defendant not at fault for an
automobile accident, the district court granted a new trial finding it committed reversible error by submitting an instruction on the legal excuse of sudden emergency. In this case, there was a question as to the chain of events in an accident involving three vehicles. Plaintiff claimed the chain of collisions was started by Defendant rear-ending the vehicle behind the Plaintiff. Defendant claims the
vehicle behind the Plaintiff first rear-ended the Plaintiff, causing a sudden emergency for Defendant that resulted in Defendant hitting the middle vehicle.
o Holding: The district court’s grant of new trial was affirmed. o Why It Matters: The Court’s ruling suggests the possibility that a collision in the road
ahead may not in and of itself constitute a sudden emergency for a driver.
15. RODRIGUEZ V. SPENNER, No. 17-1583 (Iowa Ct. App. Nov. 21, 2018) o Facts: Plaintiff appeals a jury verdict for the Defendant in a person injury action
arising from a vehicle accident in which Plaintiff’s vehicle was rear-ended by Defendant’s vehicle. Plaintiff objected to the district court giving a jury instruction on pre-existing conditions and also appeals the district court’s rejection of a motion for new trial.
o Holding: The district court decision was affirmed. o Why It Matters: The Court of Appeals did not find the Court erred in rejecting a
modified eggshell instruction submitted by the Plaintiff, which would have required jurors finding a pre-existing asymptomatic condition to refer to the jury instruction for previously infirm conditions. The Court found the fact the Plaintiff had avoided medical treatment in the past due to financial concerns would allow a jury to conclude the Plaintiff was choosing not to get treatment before the accident due to money (as opposed to finding Plaintiff asymptomatic).
16. SHIPTON V. CHICASAW COUNTY BOARD OF HEALTH, ET AL., No. 17-2041 (Iowa Ct. App. Nov. 21, 2018)
o Facts: Plaintiff appeals the district court’s order granting Defendants’ Motion for Summary Judgment in a medical malpractice action. Plaintiff did not resist Defendants’ second Motion for Summary Judgment arguing Plaintiff’s expert should be disqualified, there was insufficient evidence of negligence, and there was no dispute of fact that the emergency-response immunity covered the county’s conduct on June 24. The district court ruled in favor of Defendant on only the emergency-response immunity and dismissed Plaintiff’s case.
o Holding: The Court affirmed the district court’s ruling that the emergency-response immunity covered the county’s conduct on June 24 but reversed the dismissal of the case because the record showed evidence of negligent conduct before June 24.
o Why It Matters: The Court held the emergency-response immunity only applies to conduct in connection with an emergency response, not conduct that may cause the emergency.
17. BROCKMAN V. RUBY, ET AL., No. 18-0170 (Iowa Ct. App. Dec. 5, 2018) o Facts: Plaintiff appeals the dismissal of her action to abate a private nuisance and
establish a drainage easement, claiming a culvert placement and attached retention pond on Defendant’s property caused wet conditions on Plaintiff’s property.
o Holding: The district court’s decision was affirmed. o Why It Matters: This case highlights appellate courts’ reluctance to disturb the
findings of the district court when considering a “battle of the experts.”
18. BORJAS, ET AL., V. STATE OF IOWA, No. 18-0185 (Iowa Ct. App. Dec. 19, 2018) o Facts: Plaintiffs appeal the dismissal of the medical malpractice and negligent
infliction of emotional distress claims against Defendants based on the district court finding neither claim was supported by expert testimony.
o Holding: The district court’s decision was affirmed. o Why It Matters: The Court found recommendations for future emergency room visits
by a doctor insufficient to establish the applicable standard of care. Because there was no evidence of negligent conduct by the hospital, there could not be a claim for negligent infliction of emotional distress.
19. VEZEAU-CROUCH, ET AL., V. ROY ABRAHAM, ET AL., No. 17-1213 (Iowa Ct. App. Jan. 9, 2019)
o Facts: In this medical malpractice case, Defendants filed an interlocutory appeal from the district court’s denial of their motion for summary judgment on the issue of whether Dr. Henry Hull is qualified to testify about the diagnosis and treatment of post-operative methicillin-resistant staphylococcus aureus (MRSA), including testimony concerning causation or wrongful death damages.
o Holding: The district court’s denial of summary judgment was affirmed. o Why It Matters: The Court notes many of Defendants complaints about Dr. Hull’s
qualifications are based on a revised version of the statute governing expert qualifications in medical malpractice cases, but the previous 2015 version of the statute is what applies in this case. In other words, it appears the new requirements in Iowa Code Section 147.139 (2018) may greatly assist in disqualifying potential experts in medical malpractice cases.
20. KOHRS-MANRIQUES V. BROWN, ET AL., No. 17-1360 (Iowa Ct. App. Jan 9, 2019) o Facts: Plaintiff appeals from a district court ruling finding Plaintiff failed to establish
by clear and convincing evidence a transfer of property was fraudulent. Plaintiff obtained a workers’ compensation award against the Defendant, Tamelia Brown, who owned a tavern. The Defendant, Tamelia Brown, had purchased the tavern with financing from Co-Defendant, Lowell Bence. Brown conveyed the tavern back to Bence sometime after the workers’ compensation award when Bence indicated he had a potential buyer for the property and Brown was unable to make the payments to Bence.
o Holding: The district court’s ruling for Defendants was affirmed. o Why It Matters: The Court noted that while the standard of proof has since changed
to preponderance of the evidence, the standard of proof at the time of the conveyance was clear and convincing evidence per the statute. Also, the Court found the fact the workers’ compensation claim was a pending third-party creditor litigation and Brown was insolvent after the conveyance did not render the conveyance fraudulent on their own.
21. DUNLAP v. AIG, INC., ET AL., No. 17-1503 (Iowa Ct. App. Jan 9, 2019) o Facts: Plaintiff appeals the dismissal of his claims for bad faith and intentional
infliction of emotional distress relating to his former employer’s workers’ compensation carrier’s handling of his workers’ compensation claims.
o Holding: The Court reversed the district court’s following ruling: 1. that there was no genuine issue of material fact as to whether continuing to deny Plaintiff’s claim after May 2012 based on Dr. Wolfe’s opinion was a reasonable basis; 2. That the district court lacked subject matter jurisdiction to consider whether Defendants failed to reimburse him in a timely matter for transportation expenses. The Court affirmed the district court on all other bases.
o Why It Matters: The Court held an administrative proceeding does not constitute a “legal process” within the meaning of the abuse of process cause of action.
22. MORRISON, ET AL. V. GRUNDY COUNTY RURAL ELECTRIC COOPERATIVE, No. 17-1001 (Iowa Ct. App. Jan 23, 2019)
o Facts: Plaintiffs alleged Defendant was liable for the death of Max Morrison, a passenger in an airplane that crashed after striking a power line. A jury found the Defendant acted negligently but the negligence didn’t cause the crash. Plaintiffs appeal.
o Holding: The district court’s ruling was affirmed, based in large part on numerous findings of lack of error preservation and harmlessness.
o Why It Matters: The Court found simply submitting jury instructions that were different from those used by the Court does not preserve error regarding the jury instructions.
23. GRAY V. HOHENSHELL, No. 17-1100 (Iowa Ct. App. Jan 23, 2019) o Facts: Defendant appeals a district court order denying his motion for a new trial and
upholding a jury award of $127,000,000.00. Plaintiffs’ daughter was raped by the Defendant after the Defendant served her alcohol to the point of intoxication.
o Holding: The district court’s order was affirmed. o Why It Matters: It appears during closing argument Plaintiff’s attorney made
references to large verdicts in other states and referenced the “hot coffee” case. It is unclear from the decision whether Defendant objected to these references, but plaintiff attorneys could attempt to use this opinion to excuse discussing large verdicts in other cases during closing arguments. The Court also tended to side with Plaintiff as to comments and arguments throughout the case that would inflame the jury, holding these arguments were proper since punitive damages were being claimed.
24. WEICHERS V. BOURBON STREET BAR & GRILL, INC., ET AL., No. 17-1960 (Iowa Ct. App. Feb 6, 2019)
o Facts: Plaintiff filed a dram shop action against three bars because of an assault by two men who consumed alcohol at several bars. Defendant, Monkey, Inc. d/b/a Tony’s La Pizzeria, appeals the district court’s dismissal of their motion for summary judgment based on Plaintiff’s failure to provide statutory notice within six months of the incident per Iowa Code Section 123.93 and that Plaintiff failed to exercise reasonable diligence in discovering its involvement.
o Holding: The district court’s decision was reversed and remanded for entry of summary judgment in favor of Defendant, Monkey, Inc. d/b/a Tony’s La Pizzeria.
o Why It Matters: The dissenting judge in this case would have affirmed the district court’s decision, finding the six month time period under Iowa Code Section 123.93
should be extended so that the six month time period only begins to run once the Plaintiff has evidence or a reasonably grounded belief that the intoxicated tortfeasor was serviced by the potential dram shop. This position was rejected by the majority opinion but could serve as ammunition for Plaintiffs in future cases concerning dram shop notice.
25. CICH, ET AL. V. MCLEISH, No. 18-0069 (Iowa Ct. App. March 6, 2019) o Facts: Defendant appeals the probate of a will. Three daughters were supposed to
inherit a farm from their mother. A son, who already inherited a different farm, was given power of attorney over his mother’s affairs when her health deteriorated and she entered a nursing home. The son sold the farm and kept the proceeds for himself. The Plaintiffs claimed Defendant breached his fiduciary duty by selling the property for less than its fair market value, used his confidential relationship to wrongfully benefit himself to the exclusion of others, and intentionally interfered with receipt of their inheritance. Following trial, the district court awarded the executor $1,029,344.00 to be distributed to the three daughters, and Defendant appeals.
o Holding: The district court’s decision was affirmed. o Why It Matters: This case is an example of the independent cause of action for
wrongful interference with a bequest, which was set forth by the Iowa Supreme Court in Frohwein v. Haesemeyer, 264 N.W.2d 792 (Iowa 1978).
26. WILD V. WILLEY, ET AL., No. 18-0172 (Iowa Ct. App. March 6, 2019) o Facts: Plaintiff appeals the district court’s grant of summary judgment on his claims
of legal malpractice, breach of a business partner’s fiduciary duty, fraudulent misrepresentation, and equitable indemnity.
o Holding: The district court’s grant of summary judgment was affirmed. o Why It Matters: The Court rejected Plaintiff’s excuses for why Plaintiff did not
designate experts in determining Plaintiff was not entitled to additional time to designate experts. The Court found that computer issues experienced by Plaintiff’s attorney, along with difficulties Plaintiff’s attorney had communicating with an expert, may have served as good cause for an extension of the expert designation deadline before the deadline expired, but not after the deadline expired. The Court also found that violations of the rules of professional conduct do not dictate the standard of care for civil liability in legal malpractice cases.
27. WELSH V. LITHIA VAUDM, INC., No. 18-0653 (Iowa Ct. App. March 6, 2019) o Facts: Plaintiff appeals a jury verdict for Defendants in a case concerning repairs to
Plaintiff’s 2008 Volkswagen Touareg and claims of fraud, breach of express warranty, conversion, and violation of the Motor Vehicle Services Trade Practices Act. Plaintiff argues the district court abused discretion by disallowing a telephone deposition, excluding evidence of Defendant Lithia’s rating with the Better Business Bureau, and excluding evidence of reviews and complaints filed with the Better Business Bureau.
o Holding: The Court affirmed the district court’s rulings. o Why It Matters: The Court upheld the district court’s decision to not allow Plaintiff to
take a telephonic deposition of an out of state witness one month before trial
because Plaintiff couldn’t explain why he waited until after the discovery deadline to take the deposition.
28. REIFF FUNERAL HOMES, INC., V. ROBERT B REIFF d/b/a REIFF FUNERAL HOME AND CREMATORY, No. 18-0730 (Iowa Ct. App. March 6, 2019)
o Facts: Two brothers owned different competing funeral home businesses that shared similar names. Reiff Funeral Homes, Inc., was purchased by Joe Reiff from his father. Reiff Funeral Home and Crematory was a name used by Robert (Bobby) Reiff, but he had not purchased this name from his father. The trial court ordered Robert Reiff to cease using the trademark Reiff Funeral Homes, and Robert appeals.
o Holding: The district court’s ruling was affirmed. o Why It Matters: The Court found that a party may obtain a trademark concerning
their name when the trademark attains a secondary meaning. In this case, the fact that “Reiff” had value as a name associated with a successful funeral home business built by Joe and previously his father, “Reiff” Funeral Home had a secondary meaning apart from simply including Robert’s last name. Because Joe had a valid trademark, and Robert’s use of “Reiff Funeral Home and Crematory” caused confusion in the community, the Court found Robert had infringed on Joe’s trademark.
29. PAPILLON V. JONES, No. 17-2020 (Iowa Ct. App. April 3, 2019) o Facts: Plaintiff brought suit against Defendant for recording her conversation, which
he didn’t have consent to record and during which he was not present. Plaintiff was successful, and the district court awarded actual damages, punitive damages, and attorney fees. Defendant appealed, and the Iowa Supreme Court found there was sufficient evidence to support an award of punitive damages but insufficient findings by the district court to do so, and the case was remanded to the district court. The district court made additional findings concerning the fact Defendant continued using and sharing the recordings after discovering doing so was illegal. Defendant appeals arguing the district court violated his right to due process and erred in ordering him to pay trial attorney and appellate fees without evidence of either party’s finances.
o Holding: The district court’s decision was affirmed. o Why It Matters: The Court suggests district courts should refrain from wholesale, or
near wholesale, adoption of proposed decisions submitted by the parties during a case (the district court heavily modified a proposed ruling from Plaintiff in the present case, which the Court found proper).
30. YOUNG V. RALLY APPRAISAL, L.L.C., ET AL., No. 18-0942 (Iowa Ct. App. April 3, 2019)
o Facts: Plaintiff appeals the grant of summary judgment in favor of two appraisal companies on her claim of negligent misrepresentation. At issue is the appraisal of 59.14 acres of agricultural land just north of the city of North Liberty.
o Holding: The district court’s decision was affirmed. o Why It Matters: The Court held that because the Plaintiff later agreed to take the
land during a mediation concerning distribution of assets from an estate, and Plaintiff knew of potential issues like lack of sewer existed on the property and likely affected its value, Plaintiff could not claim she justifiably relied upon the earlier appraisal by Defendant, even if she expressed concerns about the appraisal after receiving it.
31. HEAL V. ANDERSON, No. 18-0565 (Iowa Ct. App. April 17, 2019) o Facts: Plaintiff kicked Defendant out of the business, filed a breach of oral contract
claim against Defendant, and obtained a temporary injunction preventing Defendant from returning to the salvage yard where many of Defendant’s tools and inventory remained. Defendant counterclaimed for conversion and several contractual claims. Plaintiff later allowed Plaintiff’s son to enter the salvage yard and use all of the tools, equipment, and inventory, including Defendant’s property. Plaintiff appeals the district court’s award of $41,010.23 to Plaintiff for gross negligence in storing and caring for Defendant’s property.
o Holding: The Court affirmed the vast majority of the district court’s ruling but found Plaintiff not liable for conversion of an item Plaintiff didn’t know needed to be regularly “cycled” for maintenance and found Plaintiff not liable for conversion of certain wheels and tires because they did not lose value.
o Why It Matters: The Court highlighted that in order to succeed on a claim for conversion, the complaining party must show the conversion resulted in a loss of value or other damages. It is unclear whether the Defendant in this case could have claimed loss of use damages for the amount of time he was unable to use the tools and equipment as a result of the conversion by the Plaintiff in addition to the lost value of the converted property.
32. CRAIG NABER V. JERALD NABER, No. 18-0574 (Iowa Ct. App. April 17, 2019) o Facts: Defendant appeals the denial of his motion for new trial following a jury
verdict finding him negligent for a field fire that resulted in destruction of a tractor and attachment owned by his brother. Defendant appeals on five grounds, including references to an insurance company, classification of certain witnesses as experts, witness testimony regarding reasonableness of Defendant’s conduct, the refusal to permit certain testimony, and negligence theories presented to the jury. Plaintiff cross-appealed claiming the judgment interest should run from the date of loss rather than the date the action commenced.
o Holding: The Court affirmed the district court’s rulings as to Defendant’s appeal but found Plaintiff correct that interest should run from the date of damage to the Plaintiff’s property and modified the judgment accordingly.
o Why It Matters: The Court of Appeals found that references to Grinnell Mutual Insurance during were not enough to justify a new trial because the references did not indicate the Defendant had insurance through Grinnell Mutual Insurance or any other insurer. The Court also held a firefighter’s failure to assist Plaintiff in extinguishing the front tire of the equipment was not a superseding cause because damage to nearby framing equipment like the tractor was a normal consequence of the field fire, reasonably foreseeable, and Defendant failed to make an offer of proof concerning whether the individual was a firefighter, heard Plaintiff’s request, or actually had the ability to extinguish the front tire fire. Finally, the Court held that because the damage in this case was complete on the date of the fire, interest should run from the date of the fire under an exception to the general rule that interest on a judgment runs from the date of commencement of a lawsuit.
33. HEMMINGSEN V. MINGS, No. 18-0683 (Iowa Ct. App. May 1, 2019) o Facts: Plaintiffs claimed Defendants altered the natural system of drainage, which
increased the flow of water and silt residue on Plaintiffs’ property. Plaintiffs had filed two previous lawsuits raising the same allegations, though Plaintiffs now claim a different theory of recovery for one of its claims. Plaintiffs appealed the district court’s grant of summary judgment as to claim preclusion.
o Holding: The district court’s judgment was affirmed. o Why It Matters: The Court held that settlement of the first lawsuit, which was
approved by the district court and resulted in an order for judgment, constituted a final adjudication on the merits.
34. COOPER V. CITY OF REINBECK, No. 18-1170 (Iowa Ct. App. May 1, 2019) o Facts: Plaintiff appeals the summary judgment dismissal of his defamation claims
against the Defendants, arguing Defendants are not entitled to absolute or qualified immunity.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: Because Plaintiff was unable to show any actual malice or that the
letter at issue was shared for purposes beyond the unemployment proceeding, Defendants were entitled to the qualified immunity related to performance of official duties.
35. WHITLOW V. MCCONNAHA, ET AL., No. 18-0566 (Iowa Ct. App. May 1, 2019) o Facts: Plaintiff brought a lawsuit due to serious injuries sustained in a collision
between a motorcycle on which she was a passenger and a farm tractor. Plaintiff sued the driver of the motorcycle and driver of the farm tractor. After the trial, the jury returned an incomplete verdict form finding the tractor driver not at fault but failing to address the fault of the motorcycle driver. The court discharged the jury before noticing the omission. The district court granted a new trial against the motorcycle only, and Plaintiff appeals.
o Holding: The Court held the Plaintiff is entitled to a complete retrial of the case because the jury is comparing the fault of both drivers.
o Why It Matters: This case highlights the necessity of clear jury instructions, as the jury verdict form instructed the jurors to stop answering questions, including those related to the motorcycle driver, if they found the tractor driver was not at fault. Because the fault of the Defendant drivers was alleged to be intertwined, the Court found Plaintiff entitled to a new jury trial against both drivers in spite of the fact the jury found the tractor driver not at fault.
36. MAXWELL ALBERHASKY V. GEORGE ALBERHASKY, ET AL., No. 18-0927 (Iowa Ct. App. May 15, 2019)
o Facts: Plaintiff sued his father alleging breach of fiduciary duties as a trustee of assets transferred to Plaintiff by Plaintiff’s grandmother. The district court dismissed Plaintiff’s petition on a motion to dismiss.
o Holding: The Court reversed the district court’s dismissal and remanded the case.
o Why It Matters: The Court the district court may have been correct the owner of an Iowa 529 college savings plan owes no fiduciary duties to a designated beneficiary of the plan, when the owner. However, because the Iowa 529 college savings plan in this case was owned by a trust, the trustee’s actions in changing the beneficiary of the Iowa 529 college savings plan were subject to the fiduciary duties owed by the trustee.
37. HOLLINGSHEAD V. DC MISFITS, LLC, No. 18-1225 (Iowa Ct. App. May 15, 2019) o Facts: Plaintiff appeals the summary judgment dismissal of his dramshop claim
against Defendant. Plaintiff sent a notice to Founders Insurance indicating he intended to pursue a dramshop action against “Leonard LLC dba Misfits.” Founders responded by indicated the policy for Leonard LLC had been cancelled. Plaintiff did not amend its notice to inform Founders DC Misfits was the insured party subject to the lawsuit, nor did Plaintiff provide notice directly to Defendant that he intended to pursue a dramshop action.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: Although the notice was sent to the correct insurer by chance, the
fact that Leonard LLC dba Misfits was a different entity than DC Misfits, LLC, and had a different policy of insurance, the notice given did not substantially comply with the statutory dramshop notice requirements. The Court noted that the notice didn’t provide an address or city where “Misfits” was located, suggesting it may have been more inclined to find substantial compliance had been achieved if such information had been included.
38. LIGHTFOOT V. GEHRUM, No. 18-1241 (Iowa Ct. App. May 15, 2019) o Facts: Plaintiff filed a negligence action against Defendant. Plaintiff provided partial
initial disclosures. Defendant eventually filed a Motion to Compel seeking the rest of the initial disclosures. Plaintiff failed to resist the Motion to Compel, and an order was entered to provide the disclosures within fourteen days. Plaintiff failed to provide the supplemental disclosures within the fourteen days, and Defendant moved to dismiss the case. Three and a half weeks later, Plaintiff notified the court of supplemental disclosures provided that day. A hearing was scheduled on the Motion to Dismiss, but before the hearing, Defendant notified the court of additional deficiencies in the supplemental responses. The court provided an additional two weeks for Plaintiff to provide responses or the case would be dismissed without a hearing. No supplemental responses were provided, the case was dismissed with prejudice, and Plaintiff appeals.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: The Court found dismissal of a case appropriate due to insufficient
initial disclosures by the Plaintiff.
39. BULMER V. UNITYPOINT HEALTH, ET AL., No. 17-2084 (Iowa Ct. App. May 15, 2019) o Facts: Plaintiffs appeal the grant of summary judgment in favor of Defendants on
their medical malpractice action, claiming the court abused its discretion in denying their request for more time to designate expert witnesses.
o Holding: The district court’s ruling was affirmed.
o Why It Matters: The Plaintiffs in this case suggested an expert was assessing the case, but two days before the statutory expert deadline the Plaintiffs hadn’t actually retained any expert. Further, Plaintiffs did not show Plaintiff, Gabrielle’s, blood clots prevented an expert from forming an opinion regarding causation or the standard of care, nor did Plaintiff identify names of those who could testify once the blood clots were treated. For these reasons, the Court upheld the district court’s ruling.
40. COBERLY V. MILS, ET AL., No. 18-0655 (Iowa Ct. App. June 5, 2019) o Facts: Plaintiff claims the Defendants fraudulently claimed he owed late payments
for rent and to purchase a truck. Defendants had previously filed a small claims case against the Plaintiff and obtained judgments of $5,000.00 and $1,200.00 because of late payments. Unknown to the Plaintiff and before the small claims action, Plaintiff’s mother had sent a $1,500.00 check to one of the Defendants to cover Plaintiff’s late payments. Plaintiff now claims Defendants used the judicial process to garnish excessive amounts from his account and that he is entitled to a credit for his mother’s earlier payment. The district court found his claim was precluded by the earlier small claims action.
o Holding: The district court’s decision was affirmed. o Why It Matters: Plaintiff’s claims amount to an attempt to modify the amount of the
small claims judgment. It is unclear if Plaintiff would have fared better by attempting to set aside the judgment for fraud if such a claim was available under the Iowa Rules of Civil Procedure.
41. DUNIGAN V. LIBERTY MUTUAL INSURANCE COMPANY, No. 18-0692 (Iowa Ct. App. June 5, 2019)
o Facts: Plaintiff appeals a summary judgment ruling in favor of Defendant on his claim for underinsured motorist coverage. He argues the district court erred in applying Illinois law to the insurance policy because the plain language of the policy requires the application of Iowa law. He also claims Defendant failed to obtain a written declination of underinsured motorist coverage, meaning the coverage was read into his policy.
o Holding: The district court’s summary judgment ruling was affirmed. o Why It Matters: In the absence of a choice-of-law provision in the contract, the
court found the fact the policy was contracted for and made in Illinois, the vehicles covered were licensed and registered in Illinoi at the time of the application, the vehicle involved in the accident was licensed and registered in Illinois, the Plaintiff’s driver was licensed in Illinois, the Plaintiff’s address on the insurance application and police report are the same Illinois address, and the application and renewal forms for the insurance reference Illinois suggest Illinois law should govern.
42. KELLEN V. POTTEBAUM, No. 18-1034 (Iowa Ct. App. June 5, 2019) o Facts: The Plaintiffs and Defendants to this case each claimed that surface water
damage was caused by the actions of the opposing parties. The district court found neither party established their claims and dismissed all claims with prejudice. Plaintiffs appeal.
o Holding: The district court’s dismissals were affirmed.
o Why It Matters: In discussing various discovery issues, the Court adds to the body of case law holding district courts should exclude evidence not disclosed during the course of discovery, even if the opposing party doesn’t file a motion to compel concerning the evidence.
43. MCCLELLAN V. RAMIREZ, ET AL., No. 18-1974 (Iowa Ct. App. June 5, 2019) o Facts: Plaintiffs filed this lawsuit because of damages arising from a collision with a
police vehicle. Plaintiffs appeal the district court’s dismissal of the case at summary judgment, claiming error in the court’s application of law concerning municipal immunity and the existence of an emergency at the time of the collision.
o Holding: The Court held that a negligence, not recklessness, standard applies to the emergency exception in this case, requiring reversal of the district court’s dismissal and a remand.
o Why It Matters: The Court held that if an emergency responder is using emergency lights or siren when responding to an emergency, the threshold for recovery is recklessness. If no lights or siren are being used, the emergency responder is held to the standard of negligence, as the responder has failed to give other drivers on the road notice that an emergency vehicle is approaching.
44. BUTLER V. WELLS FARGO BANK, N.A., ET AL., No. 18-0654 (Iowa Ct. App. June 5, 2019)
o Facts: Plaintiff purchased two adjoining land parcels and financed the purchase with a promissory note to Wells Fargo. The note was secured by a mortgage, but the mortgage’s description only reference one of the two lots. Plaintiff defaulted on the note, and Wells Fargo initiated a foreclosure action. Plaintiff received notice of the foreclosure action but didn’t file an answer. Plaintiff later initiated this action, which included claims of abuse of process, breach of contract, conversion, fraudulent misrepresentation, unjust enrichment, agent liability, concerted action, and specific performance resulting from the fact the mortgage didn’t include the second lot. The district court dismissed most of Plaintiff’s claim on issue and claim preclusion grounds and dismissed the abuse of process claims due to lack of evidence the foreclosure was carried out for an impermissible or illegal purpose. Plaintiff appeals.
o Holding: The district court’s dismissal is affirmed. o Why It Matters: The main problem for Plaintiff in this case is that he decided not to
enter an answer or raise any arguments whatsoever during the foreclosure action, as a default judgment is sufficient for claim and issue preclusion.
45. LECHUGA V. O & J Enterprises, LLC, No. 18-1455 (Iowa Ct. App. June 19, 2019) o Facts: Plaintiff fell to the ground from a wooden pallet suspended fifteen feet in the
air. Plaintiff filed suit against three companies involved in the job site, which Plaintiff alleges were a joint enterprise. One of the Defendants, O & J Enterprises, LLC, claimed its only involvement with the job site was hiring Garcia Grain as a subcontractor. The district court entered summary judgment for O & J Enterprises, ruling Plaintiff had shown no evidence O & J was in a joint enterprise, there was no evidence of a principal and agent relationship between O & J and Garcia Grain.
o Holding: The Court held there were genuine issues of fact as to whether O & J was an employer of Garcia Grain and the other workers and the nature of the agency
relationship between O & J and Garcia Grain and reversed on these issues. The Court affirmed as to the dismissal of the claim based on joint enterprise.
o Why It Matters: Because there was no evidence O & J had a right to share in the profits or a duty to share losses regarding the grain bin construction, it was not involved in a joint enterprise with the other Defendants. However, it appears the Court questioned the business relationships between the Defendants in this case and whether they were truly independent businesses or not.
46. MCFARLAND, ET AL. V. RIEPER, No. 18-0004 (Iowa Ct. App July 3, 2019) o Facts: Defendants appeal from a jury verdict in favor of Plaintiffs in a legal
malpractice action resulting from an unsuccessful adoption. Plaintiffs claimed Defendant committed legal malpractice by failing to draft, execute, and communicate to Plaintiffs he failed to obtain a signed release of custody from the birth mother before placing the child with them. The jury awarded damages totaling $3,250,000.00.
o Holding: Plaintiffs failed to show Defendant engaged in illegitimate conduct as required to recover emotional distress damages in a legal malpractice claim, meaning judgment should be entered in favor of Defendant.
o Why It Matters: The Court held that while the jury may have found Defendant negligent, his actions or inactions didn’t rise to the level of “illegitimate” and “especially likely to produce serious emotional harm” required for emotional distress damages in legal malpractice cases.
47. ESTATE OF JOSHUA NAEVE, ET AL., V. FBL FINANCIAL GROUP, INC., No. 18-0615 (Iowa Ct. App. July 3, 2019)
o Facts: Plaintiff appeals the district court’s dismissal of its case on a motion to dismiss. Joshua Naeve died in a vehicle accident, and after his estate settled its claim against the tortfeasor it claimed underinsured benefits from Farm Bureau Property & Casualty Insurance Company. Plaintiff filed a lawsuit against FBL claiming bad faith, interference with contract, and conspiracy or aiding and abetting bad faith because of FBL’s failure to pay the Plaintiff’s underinsured claim before trial, during which a jury had awarded Plaintiff the full $250,000.00 under Plaintiff’s underinsured policy with Farm Bureau.
o Holding: The district court’s dismissal of the bad faith claims was affirmed, while its dismissal of the intentional interference claim was reversed and remanded.
o Why It Matters: The Court held that, because FBL and Farm Bureau were in privity, and the bad faith claims could have been brought against Farm Bureau in the first lawsuit, those claims were barred by claim preclusion. The Court also references the Iowa Supreme Court’s decision in De Dios v. Indem. Ins. Co. of N. Am. for the proposition that a claims administrator like FBL who has no contract with the insured party is not subject to a bad faith claim for their handling of the claim. However, the Court did find Plaintiff’s intentional interference with contract should be allowed to survive the Motion to Dismiss stage because the pleadings on their face suggest FBL could have used wrongful means to intentionally interfere with the Plaintiff’s insurance contract.
48. KINZENBAW V. TINDAL, ET AL., No. 18-0864 (Iowa Ct. App. July 3, 2019) o Facts: Plaintiff previously unsuccessfully contested an order enforcing a settlement
agreement among beneficiaries of his mother’s estate, in which he claimed his attorney didn’t have his consent to settle. Plaintiff then filed the present legal malpractice claim against his attorney, which was dismissed by the district court due to issue preclusion.
o Holding: The district court’s decision was affirmed. o Why It Matters: The Court explained that a legal presumption differs from “the
burden of persuasion” when considering the exception to issue preclusion “where ‘the party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action.’”
49. ROBINSON, ET AL., V. WELP, ET AL., No. 17-1801 (Iowa Ct. App. July 3, 2019) o Facts: Defendants appeal the district court ruling that they breached their duty to
disclose a snake problem in a home and awarding the homebuyers damages and attorney fees. The Plaintiffs cross-appeal the district court ruling that Defendants did not fail to disclose leaks in an in-ground pool.
o Holding: The district court’s rulings were affirmed. o Why It Matters: Despite requests from both parties related to the award of attorney
fees, the Court refused to disturb the reduction of Plaintiff’s claim for attorney fees from $105,589.50 to $53,535.00, finding the district court assumes the role of an expert in determining the amount of attorney fees to award.
50. GUSTAFSON V. BELL, ET AL., No. 18-1077 (Iowa Ct. App. July 24, 2019) o Facts: Plaintiff pro se appeals summary judgment dismissal of her claims for
defamation, abuse of process, malicious prosecution, and intentional infliction of emotional distress against her neighbor. Plaintiff harassed her neighbor, Defendant Bell, to the point of criminal prosecutions against Plaintiff for harassment and no-contact orders against Plaintiff. The County Attorney recommended Defendant Bell file an application for mental-health commitment of Plaintiff, which was granted on an outpatient basis. After receiving a letter from Plaintiff’s psychologist that Plaintiff had been and is continuing to receive treatment for her mental health voluntarily, the district court found the commitment was unnecessary. This lawsuit by Plaintiff followed.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: Besides pointing out the basic tenets of defamation, abuse of
process, malicious prosecution, and intentional infliction of emotional distress, this case serves as a reminder that your neighbors could be much worse.
51. ROLAND V. ANNETT HOLDINGS, INC., No. 18-1092 (Iowa Ct. App. July 24, 2019) o Facts: Plaintiff filed a lawsuit against his employer alleging bad faith and violation of
statutory rights, and Plaintiff requested the lawsuit be certified as a class action. The lawsuit arose from an agreement that required truck drivers of Defendant to relocate to Des Moines for modified duty work if they suffer a work injury. Defendant resisted certification of the class and now appeals the district court’s certification of the class.
o Holding: The district court’s certification of the class was affirmed.
o Why It Matters: The Court held that, while the class members may not have been aggrieved in the same way because not all of them had filed workers’ compensation claims, the class members had a common grievance in that their statutory rights were violated and class certification was proper.
52. SCHWAB V. ZAHRADNIK, No. 18-1118 (Iowa Ct. App. July 24, 2019) o Facts: Plaintiff filed a legal malpractice claim against her dissolution attorney
claiming her attorney negligently failed to preserve her rights to her ex-spouse’s potential medical-malpractice claim, her right to file a loss-of-consortium claim, and a right to reimbursement of insurance premiums during the dissolution. The district court granted summary judgment in favor of Defendant, and Plaintiff appeals.
o Holding: The district court’s dismissal is affirmed. o Why It Matters: Summary judgment in this case granted during pretrial discussions.
Plaintiff had earlier alleged the malpractice in terms of a breach of a legal contract of misrepresentation and as negligent representation. However, during a pre-trial “colloquy”, Plaintiff indicated she was not pursuing the legal malpractice claim as a breach of contract claim, which caused the district court to revisit its earlier motion for summary judgment ruling.
53. SOKOL V. MORRISSEY, No. 18-1200 (Iowa Ct. App. July 24, 2019) o Facts: Plaintiffs purchased a home from Defendants and experienced a number of
problems with the home in the months and years after purchase. Plaintiffs sued Defendants for various claims and were awarded damages for violation of statutory disclosure requirements. The Plaintiff appeals the district court’s dismissal of its implied warranty of good and work like construction in home sales claim.
o Holding: The district court’s dismissal of Plaintiff’s implied warranty claim was upheld.
o Why It Matters: The Court rejected Plaintiffs’ attempt to cherry-pick facts to support a decision in their favor and found that the district court’s ruling was supported by substantial evidence in the record.
54. HINTERMEISTER V. BELIN MCCORMICK, PC, ET AL., No. 18-1294 (Iowa Ct. App. July 24, 2019)
o Facts: Plaintiff appeals dismissal of his claims of tortious interference with business relations and intentional infliction of emotional distress claims. Plaintiff, an attorney, sued Defendants because of a real estate development project. The parties were attempting to satisfy tax liens on the property, but delays in resolution of the liens led Defendant, Belin McCormick, to send a letter to Plaintiff threatening litigation if the tax liens were not released. Plaintiff claims his firm’s policy required him to report the threat of litigation to his firm’s errors and omissions liability insurance provider, and his partner terminated his partnership after the reporting. The district court found the Defendants’ statements fell under the litigation privilege and were immune from civil liability.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: The Court found the litigation privilege applies to statements outside
the context of defamation claims, including those that deal with attorney conduct and statements made in the course of client representation. This includes claims for
interference with employment prospects and intentional infliction of emotional distress based on threat of litigation.
55. ESTATE OF WILBUR ARNOLD V. BRUCE ARNOLD, ET AL., No. 18-1460 (Iowa Ct. App. July 24, 2019)
o Facts: William Arnold didn’t receive the inheritance of farmland he anticipated, so he contested the wills of his aunt and uncle, claiming tortious interference with his expected bequest and undue influence. The district court granted summary judgment for Defendants, and William appeals.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: Unsurprisingly, the Court held that William’s evidence, which
amounted to mere speculation, was insufficient to sustain his claims past Defendants’ Motion for Summary Judgment.
56. HEMESATH V. COUNTY LINE BAR AND GRILL, ET AL., No. 18-1788 (Iowa Ct. App. July 24, 2019)
o Facts: Plaintiff leaned back on his barstool at County Line Bar and Grill and one of the legs broke, causing Plaintiff to fall to the ground. Plaintiff claimed Defendants were negligent in their ownership and operation and/or operation of the premises. Plaintiff appeals the district court’s grant of summary judgment in favor of Defendants.
o Holding: The district court’s dismissal of Plaintiff’s case was affirmed. o Why It Matters: The Court found that without evidence of a defective bar stool, and
because he had not made a res ipsa loquitur claim, Plaintiff had insufficient evidence to show defendants knew of a defect in the bar stool or failed to use reasonable care to discover it.
57. NEUMAN V. CALLAHAN, ET AL., No. 18-0282 (Iowa Ct. App. July 24, 2019) o Facts: Plaintiff was convicted of operating while intoxicated in 2014. Dissatisfied with
the way the Black Hawk County Clerk’s office handled administration of his fine, Plaintiff filed a civil lawsuit alleging a conspiracy by a variety of state, county, and judicial actors with a plethora of claims and theories. The district court granted Defendants’ Motion to Dismiss, and Plaintiff appeals.
o Holding: The district court’s dismissal was affirmed. o Why It Matters: The Court of Appeals walks through various rules violations related
to the pro se Plaintiff’s submissions, which were numerous. The Court notes that Plaintiff’s status as a pro se party does not excuse his failure to comply with the rules. Although the Court could have dismissed his case based on the disregard for the rules, the Court decided to instead agree with the district court’s decision and analysis.
