Automobile Insurance SubrogationAutomobile Total Loss ThresholdsContributory Negligence/Comparative FaultDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationNo Pay, No Play LawsOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Threshold (70%)
Iowa used to define a salvage vehicle as one for which the cost of repair exceeds 50% of the FMV of the vehicle. But Iowa repair shops were losing money because of vehicles being totaled. As of 2021 and Senate File 230, Iowa now defines a “wrecked or salvage vehicle” as one “for which the cost of repair exceeds 70% of the fair market value of the vehicle.” Damage disclosure requirements kick in at 70%. If cost to repair vehicle is greater than 70% of ACV then the vehicle must have a damage disclosure on the title and it becomes “wrecked or salvage vehicle.” Practically speaking, salvage titles go hand-in-hand with the declaration of a total loss. Iowa law is silent with regard to a threshold at which a carrier must consider a vehicle a total loss. It is up to each carrier to determine at what point they will consider a vehicle to be a total loss. I.C.A. § 321.52(4)(e).
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s negligence will offset defendant’s liability, but plaintiff cannot recover if he is more than 50% at fault. I.C.A. § 668.3(1)(b).
Automobile: Pro-Rata. I.C.A. § 191-15.43(507B)(4) (Administrative Code) provides: “Insurer shall, upon claimant’s request, include first-party claimant’s deductible, if any, in subrogation demands. Subrogation recoveries shall be shared on proportionate basis with first-party claimant, unless deductible amount has been otherwise recovered. No deduction for expenses shall be made from deductible recovery unless outside attorney is retained to collect such recovery. The deduction may then be for only a pro-rata share of allocated loss adjustment expense.”
Deductible must be included in any collision subrogation demand upon claimant’s request.
Diminution of Value
First Party: Diminished value provisions rescinded by Insurance Adjustment Bureau 4/28/04, effective 4/7/04. Iowa Admin. Code R. § 191-15.43(507B).
Third Party: Diminished value after repairs may be recovered if supported by expert testimony and the evidence, and the amount of diminished value damages lies within the sound discretion of the court or jury. Hawkeye Motors, Inc. v. McDowell, 541 N.W.2d 914 (Iowa App. 1995).
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
A person, who is or may be exposed to multiple liability or vexatious litigation because of several claims against him for the same thing, may bring an equitable action of interpleader against all such claimants. Spahn & Rose Lumber Co. v. Iowa Steel & Const. Co., 131 N.W.2d 791 (Iowa 1964). Their claims or titles need not have a common origin, nor be identical, and may be adverse to, or independent of each other. Such person may dispute his liability, wholly or in part. Iowa R. Civ. P. 1.252.
Funeral Procession Traffic Laws
Iowa law is not specific regarding intersections, but provides that drivers of vehicles in the procession cannot be charged with violating traffic rules and regulations with regard to traffic devices and signals, unless operating the vehicle recklessly. Funeral procession lead vehicles must have flashing emergency lights, lit headlights, and identifying flags. All vehicles in the procession must keep headlights lit and drive close together. Other vehicles, except emergency vehicles, must yield the right-of-way to the procession. Iowa Code § 321.324A.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: The contributory negligence of a permissive user is not imputed to the owner when the owner sues a third-party for injuries or damage to his vehicle. Stuart v. Pilgrim, 74 N.W.2d 212 (Iowa 1956).
Vicarious liability statute (§ 321.493) does not allow the contributory negligence of a permissive user to be imputed against the owner. Id.
Vicarious Liability/Family Purpose Doctrine: No Family Purpose Doctrine. Bridges v. Welzien, 300 N.W. 659 (Iowa 1941).
Iowa’s Motor Vehicle Consent Statute (Owner’s Responsibility Law) makes the owner of a vehicle liable for the negligence of a driver operating the vehicle with consent. Exception is vehicle over 7,500 lbs. rented for less than one year. I.C.A. § 321.493.
Sponsor Liability for Minor’s Driving: No Sponsorship Liability Statute.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No minor between the ages of 14 and 18 with a Class “C” or “M” license may use electronic communication devices while operating a vehicle, unless the vehicle is completely stopped and parked. I.C.A. § 321.194.
No person may use an electronic communication device to send, receive, or write a text message while operating a motor vehicle, unless it is hands-free and voice operated. I.C.A. § 321.276.
Other Prohibitions: No Applicable Law.
Loss Of Use
Loss of Use: Yes. Iowa courts have included recovery for loss of use in several situations:
- When the vehicle is totally destroyed, or the reasonable cost of repair exceeds the difference in reasonable market value before and after the injury, the measure of damages is the lost market value plus the reasonable value of the use of the vehicle for the time reasonably required to obtain a replacement.
- When the injury to the motor vehicle can be repaired so that, when repaired, it will be in as good condition as it was in before the injury, and the cost of repair does not exceed the difference in market value of the vehicle before and after the injury, then the measure of damages is the reasonable cost of repair plus the reasonable value of the use of the vehicle for the time reasonably required to complete its repair.
- When the vehicle cannot by repair be placed in as good condition as it was in before the injury, then the measure of damages is the difference between its reasonable market value before and after the injury, plus the reasonable value of the use of the vehicle for the time reasonably required to repair or replace it.
Long v. McAllister, 319 N.W.2d 256, 261 (Iowa 1982). Rental value is not a generally accepted measure of loss of use in Iowa, so whether a rental vehicle was actually procured is not relevant here. There is no recovery for loss of use when a vehicle has been substantially destroyed or is not substantially repairable. Pfingsten v. Westenhaver, 244 P.2d 395 (Cal. 1952) (California case governing Iowa law).
Lost Profits: When there is evidence of rental value, that is the proper measure of the loss of use, not the loss of profits for a given period. Knaus Truck Lines v. Commercial Freight Lines, 29 N.W.2d 204, 210 (Iowa 1947). There is no authority for the measure of damages for loss of use when the rental figure is not available.
Comments: Iowa courts believe that loss of use is an important element in providing full compensation to the vehicle owner. Loss of use damages will be incurred as readily when a vehicle is totally destroyed or when it cannot be restored by repair to its prior condition as when the vehicle can be restored by repair. Just as loss of use damages are necessary for full compensation when the vehicle can be restored to its prior condition, they are warranted when the vehicle is destroyed or cannot be so restored. No logical basis exists for cutting them off when the total reaches the vehicle’s market value before the injury. Long v. McAllister, supra.
Med Pay/PIP Subrogation
Med Pay: Yes. Ludwig v. Farm Bureau Mut. Ins. Co., 393 N.W.2d 143 (Iowa 1986). However, absent the consent of insured/subrogor, a subrogated party that has paid only a portion of the entire loss has no right to a direct subrogation claim against the tortfeasor in competition with the insured who is actively pursuing the entire claim. Krapfl v. Farm Bureau Mut. Ins. Co., 548 N.W.2d 877 (Iowa 1996) (carrier owes common fund attorneys’ fees); Aspelmeier, Fisch, Power, Warner & Engberg v. Allied Group Ins. Co., 556 N.W.2d 805 (Iowa 1996).
PIP: Insurers are not prohibited by law from providing PIP benefits.
Made Whole: Can be overridden with Plan language. Ludwig, supra.
Statute of Limitations: The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. I.C.A. § 614.1 (1999).
No Pay, No Play Laws
Rule: If a person was injured in an automobile accident while that person was in the process of committing a felony and was convicted of that felony, the injured person is barred from non-economic recovery.
Authority: I.C.A. § 613.20
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: I.C.A. § 321.362.
Common Law Rule: An owner who leaves the key in the ignition of an unlocked auto, or in plain view inside the auto, cannot be held liable for damages to a third party proximately caused by the negligent operation of the auto by a person who has stolen it. Roadway Exp., Inc. v. Piekenbrock, 306 N.W.2d 784 (Iowa 1981). The mere leaving of keys in a vehicle’s ignition is generally not a proximate cause of injuries resulting from a thief’s negligent operation of the vehicle. However, liability may exist in special circumstances when the vehicle is left in an area or under circumstances where leaving the keys would make a theft likely. Smith v. Shaffer, 395 N.W.2d 853 (Iowa 1986).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer may (1) offer a replacement auto that is at least comparable including all applicable taxes, license fees, or other fees, or (2) offer a cash settlement based on the ACV of a comparable vehicle including all applicable taxes, license fees, or other fees. Iowa A.D.C. § 191-15.43(507B).
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. The Supreme Court has simply said that “When the motor vehicle is totally destroyed or the reasonable cost of repair exceeds the difference in reasonable market value before and after the injury, the measure of damages is the lost market value plus the reasonable value of the use of the vehicle for the time reasonably required to obtain a replacement.” Long v. McAllister, 319 N.W.2d 256 (Iowa 1982).
Pedestrian and Crosswalk Laws
I.C.A. § 321.327: Vehicles must yield to pedestrians in the crosswalk.
I.C.A. § 321.328: Pedestrians must yield to cars when outside of crosswalks. At intersections with traffic signals, pedestrians must use crosswalk to cross.
Summary: Failure of pedestrian to yield to vehicle when crossing outside crosswalk is negligence per se. Stewart v. Hilton, 77 N.W.2d 637, 247 Iowa 988 (1956).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Car rental company is allowed to recover from an authorized driver for damages and loss of use reasonably related to the actual loss incurred, plus administrative expenses. Loss of use damages limited to the daily rate found in the rental agreement, excluding optional charges, multiplied by the estimated time for replacement or repair. For the purpose of computing loss of use, eight hours of estimated time for repair or replacement equals one day’s down time. Iowa Code § 516D.5.
Recovery From Third-Party: Case law allows for commercial vehicles (tractor-trailer) to recover reasonable rental costs, but not loss of profits. Nothing specifically for rental cars. When the motor vehicle is totally destroyed or the reasonable cost of repair exceeds the difference in reasonable market value before and after the injury, the measure of damages is the lost market value plus the reasonable value of the use of the vehicle for the time reasonably required to obtain a replacement. When the injury to the motor vehicle can be repaired so that, when repaired, it will be in as good condition as it was in before the injury, and the cost of repair does not exceed the difference in market value of the vehicle before and after the injury, then the measure of damages is the reasonable cost of repair plus the reasonable value of the use of the vehicle for the time reasonably required to complete its repair. When the motor vehicle cannot by repair be placed in as good condition as it was in before the injury, then the measure of damages is the difference between its reasonable market value before and after the injury, plus the reasonable value of the use of the vehicle for the time reasonably required to repair or replace it. If loss of use leads also to loss of profits, they are speculative as much or as little as other claims of lost profits and the question of speculation becomes in the end a question whether the evidence of loss is sufficient in each case. Long v. McAllister, 319 N.W.2d 256 (Iowa 1982). Recovery allowed for reasonable value of use of the vehicle (reasonable rental cost of replacement) while being repaired with ordinary diligence, not loss of profits. When there is evidence of rental value, that is the proper measure of the loss of use, not the loss of profits for a given period. Knaus Truck Lines v. Commercial Freight Lines, 29 N.W.2d 204 (Iowa 1947).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: No case or statutory law. Terms of rental agreement and renter’s liability policy should be compared to determine which is primary.
Slower Traffic Keep Right
Statute: I.C.A. § 321.297(1) and (2).
Summary: Iowa requires motorists to drive in the right lane except when overtaking and passing another vehicle proceeding in the same direction; when an obstruction exits in the right lane; upon a roadway divided into three lanes; or upon a roadway restricted to one-way traffic. Slower traffic must keep right. Vehicles proceeding at slower than the normal speed of traffic must drive in the right lane.
Sudden Medical Emergencies While Driving
Sudden Emergency Defense. A driver who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances. Hagenow v. Schmidt, 842 N.W.2d 661(Iowa 2014).
Whether a sudden emergency occurred is typically a fact question entrusted to the jury. Weiss v. Bal, 501 N.W.2d 478, 481 (Iowa 1993). The burden of proof is on the party asserting the defense. Jones v. Blair, 387 N.W.2d 349 (Iowa 1986).
Suspension of Drivers’ Licenses
Administrative Suspension: Following an accident involving injury, death, or property damage of at least $1,500, the State DOT must, within sixty (60) days, suspend the license of each operator and owner of any uninsured vehicle, unless that party deposits security sufficient in the opinion of the Department to satisfy any judgment for damages. I.C.A. § 321A.5. Suspension will last until adequate security is deposited, twelve (12) months have elapsed and no action for damages has been filed. I.C.A. § 321A.7.
Judgment: Department will suspend the driver’s license of the judgment debtor. I.C.A. § 321A.12. Suspension will continue until the judgment is satisfied. I.C.A. § 321A.14.
Contact Information: State of Iowa, Department of Transportation, Iowa Office of Driver Services, 100 Euclid Ave., P.O. Box 9204, Des Moines, IA 50306-9204, (515) 244-9124, https://iowadot.gov/mvd.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: I.C.A. § 537B.4.
Summary: The insured must receive prior notification in writing if non-OEM parts are going to be used and the notification must also inform the insured that the part manufacturer warranted the part, not the auto maker. The non-OEM parts must be marked with the manufacturer’s name or logo, and such name and/or logo should be visible after installation if at all practicable.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Tort Liability of Governmental Subdivisions: I.C.A. § 670.1. Municipality liable for torts in course and scope whether action governmental or proprietary, except as set forth in I.C.A. § 670.4.
Notice Deadlines: An action must be brought within two (2) years of the damage or injury. I.C.A. § 670.5.
Presumption of Liability: Graber v. City of Ankney, 656 N.W.2d 157 (2003). Governmental subdivision must defend its employees and indemnify them. I.C.A. § 670.8.
General rule in examining municipal immunity is liability; immunity is the exception. I.C.A. §§ 670.0, 670.4, Subd. 3.
Exceptions to liability:
- Claim covered by work comp;
- Police acting with care;
- Failure to discover latent defect;
- Negligent design of public improvement;
- Negligent design of recreational facility; and
- “Discretionary” function: 2-step test used rather than planning/ operational test.
- Whether the action involved a matter of choice by employee; and
- Judgment call is kind the discretionary function was designed to shield. I.C.A. § 670.14.
Distinction is between judgment that embodies a professional assessment undertaken pursuant to a policy of settled priorities and a fully discretionary judgment that balances incommensurable values in order to establish those priorities. Graber v. City of Ankeny, 656 N.W.2d 157 (Iowa 2003).
Damage Caps: No Punitive Damages. I.C.A. § 670.4. No Damage Caps.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Iowa Tort Claims Act.
The State may be held liable for its negligence and the negligence of its employees while acting with the scope of employment. I.C.A. § 669.5. The State shall defend, indemnify, and hold harmless any employee, against any claim so long as the employee’s conduct was not willful or malicious. I.C.A. § 669.21 (1965).
Notice Deadlines: Claims against the State are barred unless notice is provided in writing within two years of the claim. I.C.A. § 669.13.
Claims/Actions Allowed: Iowa shall be liable to the same extent as a private individual under like circumstances. I.C.A. § 669.4. This includes the negligence of the State or its employees acting under the scope of employment while operating a motor vehicle. Swanger v. State, 445 N.W.2d 344 (Iowa 1989); Starlin v. State, 450 N.W.2d 257 (Iowa Ct. App. 1989).
Comments/Exceptions: A governmental entity is entitled to immunity only to the extent permitted by statute. Walker v. State, 801 N.W.2d 548 (Iowa 2011).
Iowa retains immunity for claims arising out of:
(1) acts or omissions of a State employee in the execution of a statute;
(2) discretionary functions; and
(3) any claim arising out of assault, battery, false imprisonment, misrepresentation.
See I.C. § 669.14 for more exceptions.
Damage Caps: No punitive damages against the State. I.C. § 669.4.
General Tort Laws/Statutes
Prohibits Intermediate Indemnity. Applies to Construction Contracts. Iowa Code § 537 A.5.
Does not apply to “any obligation of strict liability otherwise imposed by law”.
Modified Joint and Several Liability. Joint and several liability only for defendants 50% or more at fault and for plaintiff’s economic damages only. I.C.A. § 668.4.
Contribution plaintiff is entitled to contribution from a tortfeasor whose liability was extinguished by the settlement, either in main action or separate action. Contribution plaintiff must extinguish liability of contribution defendant to bring separate action. I.C.A. § 668.5; Wilson v. Farm Bureau Mut. Ins., 770 N.W.2d 324 (Iowa 2009).
Section 668.7 provides that a release discharges the defendant from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. “Nothing requires naming these parties. The court did not require such a rigid rule when the released parties are otherwise sufficiently identified in a manner that the parties to the release would know who was to be benefitted”. Nationwide Agribusiness Ins. Co. v. PGI Int’l, 2016 WL 1680978 (Iowa App. 2016). A court may reform the release to reflect the intent of the parties.
A contribution action may be brought within the original action or a separate action brought within one year if the parties’ percentages of fault have not been established by the court for statute of limitations. I.C.A. § 668.6(3).
Dog Bite Laws
Dog owner will be strictly liable if their dog bites (or attempts to bite) a person or a domestic animal. (Exception is if the dog has rabies and the owner does not know). Iowa Code Ann. § 351.28.
Economic Loss Doctrine
Intermediate Rule. Generally, tort recovery for purely economic losses is prohibited, and such claims are consigned to contract law. The well-established general rule is that a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Neb. Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124 (Iowa 1984). The purpose of the rule is to “prevent litigants with contract claims from litigating them inappropriately as tort claims.” Van Sickle Constr. Co. v. Wachovia Comm. Mortg., Inc., 783 N.W.2d 684 (Iowa 2010). Factors to be considered in determining whether a product liability claim sounds in tort or contract are the nature of the defect, the type of risk, and the manner in which the injury arose. American Fire & Cas. Co. v. Ford Motor Co., 588 N.W.2d 437 (Iowa 1999). Tort recovery for damage to the product alone is recoverable when accompanied by a sudden or dangerous occurrence, frequently involving some violence or collision with external objects, resulting from a genuine hazard in the nature of the product defect. Iowa makes a distinction between disappointed consumers from endangered consumers. As an example, if a fire alarm fails to work and the building burns down, that is considered an “economic loss” even though the building was physically harmed. It was a foreseeable consequence from the failure of the product to work properly. But, if the fire was caused by a short circuit in the fire alarm itself, it is not economic loss.
Tort claims remain available in circumstances where the loss involves a safety hazard or sudden danger that results in personal injury or harm to property other than the subject of the contract. Des Moines Flying Serv., Inc. v. Aerial Servs., Inc., 880 N.W.2d 212 (Iowa 2016) (“[I]f the damage resulted from a failure of the product to work properly, the claim would sound in contract, but if it resulted from a genuine hazard resulting in a sudden or dangerous occurrence based on the nature of the product defect, the claim would sound in tort.”); Determan, 613 N.W.2d 259 (Iowa 2000) (stating that in order for tort recovery to be available, “at a minimum … the damage for which recovery is sought must extend beyond the product itself”). Ultimately, however, “the line to be drawn is one between tort and contract rather than between physical harm and economic loss.” Nelson v. Todd’s Ltd., 426 N.W.2d 120 (Iowa 1988); S. Ins. Co. Lowenberg v. CJG Enterprises, Inc., 2017 WL 3449610 (S.D. Iowa 2017).
Defects of suitability and quality are redressed through contract actions and safety hazards through tort actions. There can be no recovery in tort if the product causes no injury or damage to other property. Nelson v. Todd’s, Ltd., 426 N.W.2d 120 (Iowa 1988). However, in a case in which the defendant constructed four barns using pre-engineered designs and components provided by another defendant, and seven years later, the barns suffered damage during a windstorm, a suit claiming that the damage suffered was due to design and construction deficiencies and brought as a subrogation action, was dismissed based on the ELD. Lowenberg v. CJG Enterprises, Inc., 2017 WL 3449610 (S.D. Iowa 2017). The court dismissed the case because, even though there was a genuine hazard resulting in a sudden or dangerous occurrence based on the nature of the product defect, the nature of the defect at issue was the quality of CJG’s construction and Lester’s design of the Lowenberg’s barns. The insureds contracted for the buildings to withstand Iowa’s mercurial weather, and the subrogated carrier’s claim that the barns failed to withstand the weather arises from their insured’s unfulfilled expectations with respect to the bargained-for quality of the barns. This is an economic loss properly redressed by contract, not tort.
Professional negligence actions against attorneys and accountants are generally not subject to the ELD. Van Sickle Constr. Co. v. Wachovia Comm. Mortg., Inc., 783 N.W.2d 684 (Iowa 2010).
Property Damage/Personal Injury. Liability imposed on parents for any unlawful act of minor that causes injury to person or property. I.C.A § 613.16.
The limits of liability are $2,000.00 for one act and $5,000.00 for two acts to the same claimant. Child must be under 18-years-old.
Sanctions: Evidence of spoliation may allow an inference that “a party who destroys a document with knowledge that it is relevant to litigation is likely to have been threatened by the document.” Lynch v. Saddler, 656 N.W.2d 104, 111 (Iowa 2003). Such inference may only be drawn when the destruction of relevant evidence was intentional, as opposed to merely negligent or the evidence was destroyed as the result of routine procedure. Id. However, such inference does not amount to substantive proof and cannot take the place of proof of a fact necessary to the other party’s cause. Smith v. Shagnasty’s, Inc., 2004 WL 434160 (Iowa App. 2004). Interestingly, the evidentiary inference is imposed both for evidentiary and punitive reasons. Phillips v. Covenant Clinic, 625 N.W.2d 714, 721 (Iowa 2001). Adverse inference instructions should be utilized prudently and sparingly. Lynch, supra.
Statute of Limitations
Personal Property5 YearsI.C.A. § 614.1(4)
Personal Injury/Death2 YearsI.C.A. § 614.1(2)
Breach of Contract/Written10 YearsI.C.A. § 614.1(4)
Breach of Contract/Oral5 YearsI.C.A. § 614.1(5)
Breach of Contract/Sale of Goods4 YearsI.C.A. § 554.2725
Statute of Repose/Products15 YearsI.C.A. §§ 614.2A, 614.1(11)*
Statute of Repose/Real Property10 YearsI.C.A. § 614.1**
Breach of Warranty/Implied5 YearsI.C.A. §§ 554.2725, 614.1(4),(5)
Breach of Warranty/Express10 YearsI.C.A. §§ 554.2725, 614.1(5)
Workers’ Comp Third Party Case2 YearsI.C.A. § 85.22
Strict Product Liability/Personal Injury2 YearsI.C.A. § 614.1(2)
Strict Product Liability/Personal Property5 YearsI.C.A. § 614.1(4)
Statute of Limitations Exceptions
*15 Years unless warranty is longer. I.C.A. § 614.2A and 614.1(11).
**10 years for an action related to residential construction or 8 years for any other kind of improvement to real property, after the date on which the act or omission has occurred. I.C.A. § 614.1.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 2 Years. I.C.A. § 614.1(2).
Subrogation of Medical and Disability Benefits are allowed. Iowa Am. Ins. Co. v. Pipho, 456 N.W.2d 228 (Iowa Ct. App. 1990). “Under Iowa law, a partially subrogated insurer may not pursue its subrogation claim directly against the tortfeasor at any time absent some inability or unwillingness of the subrogor to pursue the entire claim.” Hopping v. Coll. Block Partners, 599 N.W.2d 703 (Iowa 1999); Farm Bureau Mut. Ins. Co. v. Allied Mut. Ins. Co., 580 N.W.2d 788, 789 (Iowa 1998).
Made Whole and Common Fund Doctrines apply. Ludwig v. Farm Bureau Mut. Ins. Co., 393 N.W.2d 143 (Iowa 1986). However, the insured’s right to be made-whole does not extend to all categories of damages, like pain and suffering. If the insured recovers its prior medical expenses, then he or she has been made-whole for that category. I.C.A. § 668.5(3).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Ganrud v. Smith, 206 N.W.2d 311 (Iowa 1973).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: Not explicitly, but possibly: “acts of negligence that show or permit an inference of indifference to or disregard of the interest of the insured” can support a bad faith claim. Ferris v. Emp’rs Mut. Cas. Co., 255 Iowa 511, 516, 122 N.W.2d 263, 266 (1963); see also Henke v. Iowa Home Mut. Cas. Co., 250 Iowa 1123, 97 N.W.2d 168 (1959).
One-Party Consent: An individual has the right to record or disclose the contents of an oral, electronic or telephonic communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Iowa Code Ann. § 808B.2 (2)(c); .Iowa Code Ann. § 727.8.
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. I.C.A. § 614.1. Discovery Rule applies. Statute of Repose is 15 years. I.C.A. § 614.1(2)(A) (2011).
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. I.C.A. § 668.3(1)(b).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: No.
Innocent Seller Statute: Yes. I.C.A. § 613.18.
Joint and Several Liability: Yes, if > 50%. I.C.A. § 668.4 (2011).
Available Defenses: Assumption of Risk; Misuse; Alteration; State of the Art; Presumption; Seatbelts.
Restatement 2nd or 3rd?: Restatement 3rd.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Statute/Regulation: Insurer must replace as much as possible to create a reasonably uniform appearance within same line of sight. Exceptions may be made on case-by-case basis. I.C.A. § 15.44(1)(b).
Comments: When a loss requires replacement of items and the replaced items do not match in quality, color or size, the insurer shall replace as much of the item as is necessary to result in a reasonably uniform appearance within the same line of sight. Iowa Admin. Code r. 191-15.44 (507B).
Condominium/Co-Op Waiver of Subrogation Laws
Statute on condo insurance does not mention subrogation. I.C.A. § 499B.16.
Damage to Property Without Market Value
Service Value: “In this case, the records involved clearly possessed no market value. …Almost invariably, actual value is measured by the cost of replacement with proper allowances made for depreciation, usage and age.” Iowa Power and Light Co. v. Board of Water Works Trustees of City of Des Moines, 281 N.W.2d 827 (Iowa Ct. App. 1979) (citing Schlitz v. Cullen-Schlitz & Associates, Inc., 228 N.W.2d (Iowa 1975)).
Intrinsic Value: “The value of these records is intrinsic in nature and measured on the basis of their importance to Iowa Power.” Iowa Power and Light Co. v. Board of Water Works Trustees of City of Des Moines, 281 N.W.2d 827 (Iowa Ct. App. 1979).
Sentimental Value: The measure of damages for injuries to a dog, factors include its market value, which may be based on purchase price, relatively long life of breed, its training, usefulness and desirable traits. Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Iowa has rejected the implied co-insured rationale and allowed the insurer to bring a subrogation claim against the tenant, absent an express agreement to the contrary. Neubauer v. Hostetter, 485 N.W.2d 87, 89-90 (Iowa 1992).
An insurer has no right to subrogation when the subrogor and target are covered by the same policy. Connor v. Thompson Constr. & Development Co., 166 N.W.2d 109 (Iowa 1969). The ASR does not inherently protect a permissive driver because under Iowa Code § 321.493, a permissive driver is not required by law to be an insured under the owner’s liability insurance unless the permissive driver, due to prior driving problems, is required by § 321A to provide proof of financial responsibility. Universal Underwriters Ins. Co. v. American Family Ins. Group, 587 N.W.2d 224 (Iowa 1998). A permissive driver can be an insured under another’s policy where the vehicle the permissive driver was operating was a hired vehicle that the permissive driver did not own. United Suppliers, Inc. v. Hanson, 876 N.W.2d 765 (Iowa 2016). Subrogation is still permissible against a contractor when a home is damaged in a fire after the homeowners had moved in because a homeowner does not become the contractor’s insurer upon agreeing to maintain builders’ risk insurance during construction, the homeowner is not obligated to include the contractor as a named insured on their insurance, and any protections that the builders’ risk insurance extended to the contractor terminated once the homeowner moves into the home. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486 (Iowa 2000). In Hanson, United Suppliers (US) hired R. Hanson Trucking, Inc. (Hanson) to transport chemical shipments on behalf of US. DiRisio was hired by Hanson to drive the vehicle that would be handling the chemical shipments. DiRisio was subsequently involved in a one vehicle accident, which US’s insurer, Nationwide, paid for, and then subsequently sought to subrogate against DiRisio and Hanson for the costs related to the accident. The court found that DiRisio was an insured under US’s nationwide policy due to the policy’s “Business Auto Coverage Form” that extended US’s coverage to a hired or borrowed vehicle that was not driven by “[t]he owner or anyone else from whom [United Suppliers] hire[d] or borrow[ed] a covered ‘auto’.” This language was found to make DiRisio an insured under US’s Nationwide policy, meaning that the ASR protected DiRisio from subrogation and also protected Hanson from derivative liability.
Under Iowa statute, victims will be paid first out of restitution awards, but courts can also order restitution paid by each defendant, upon a guilty plea or verdict, to court for fines or penalties, restitution to public agencies, correctional fees, or court-appointed attorney costs.
The same statute specifically defines a “victim” as “a person who has suffered pecuniary damages as a result of the offender’s criminal activities” and explicitly states that an insurer cannot be a victim for purposes of criminal restitution, unless insurance fraud has been perpetrated against the carrier. I.C.A. § 910.1.
Made Whole Doctrine
Iowa recognizes the Made Whole Doctrine but refers to it as the “Full Recovery Rule”. Continental Western Ins. Co. v. Krebill, 492 N.W.2d 405 (Iowa 1992). The Full Recovery Rule requires that an insurance company’s claim for reimbursement or subrogation is not effective until the insured has been fully compensated for his damages. Brandon v. West Bend Mut. Ins. Co., 681 N.W.2d 633 (Iowa 2004). In general, Iowa recognizes that the resolution of subrogation issues is guided by the equitable principle that an injured party is entitled to be made whole. Allied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820 (Iowa 2004).
Notwithstanding the above, there has been some ambiguity in Iowa as to the application of the Made Whole Doctrine. In Iowa American Ins. Co. v. Pipho, 456 N.W.2d 228 (Iowa App. 1990), an injured automobile passenger settled her claim with the driver’s insurer, and the passenger’s health insurer thereafter filed a subrogation claim seeking reimbursement from the settlement proceeds for medical benefit payments it had made. Pipho’s past medical expenses were approximately $19,000, of which $11,778.67 was paid by the health Plan. After trial, a court assessed Pipho’s total damages, including loss of future earnings and a past and future pain and suffering, in excess of $400,000. The insured settled for the tortfeasor’s $25,000 policy limits, and the settlement agreement did not allocate any particular share of the settlement amount as medical expenses. The health Plan filed a subrogation claim, seeking reimbursement from the settlement proceeds for $11,778.67 in benefits it had paid. The insured claimed that she was not made whole. The court refused to apply the Made Whole Doctrine, logically concluding that the health Plan had not undertaken to insure Pipho for pain and suffering, lost wages, or impairment of future earning capacity. A denial of the health insurer’s subrogation claim on the grounds that the insured did not recover these uninsured elements of damages, had the effect of making the health Plan an insurer against those losses as well. The Court of Appeals ruled that if settlement funds can be allocated into specific elements of a claim, the medical expenses portion of that settlement should be subrogable for the health insurer even if other elements of the insured’s cause of action are not fully satisfied. Id. If the amount of settlement funds which are attributable to medical expense cannot be identified, the court held that a “mini-trial” should be conducted in order to make such a determination. Id.
The Iowa Supreme Court has held that an insured need not be paid in full for pain and suffering and disability prior to allowing subrogation for medical expenses. Ludwig v. Farm Bureau Mut. Ins. Co., 393 N.W.2d 143 (Iowa 1986). This decision disagrees completely with the Rimes decision by the Wisconsin Supreme Court, which has been the paradigm of made whole issues in so many states. Rimes v. State Farm Mutual Auto. Ins. Co., 316 N.W.2d 348 (Wis. 1982). However, there is some authority in Iowa to the effect that the Made Whole Doctrine can be overridden by the contract terms of a Plan or policy. Ludwig, supra; Kapadia v. Preferred Risk Mut. Ins. Co., 418 N.W.2d 848 (Iowa 1988) (citing 73 Am.Jur.2d Subrogation § 2 at 599 (1974).
With regard to the ability of a policy to override the Made Whole Doctrine, the Iowa Supreme Court has adopted the rule that “when the total of the insured’s recovery from a third party and the insurance company’s payments under the policy still are less than the loss sustained, the insured has not been made whole, and the insurer may not recover against him.” The Supreme Court also held that insurer may obtain reimbursement if insured is “made whole” with respect the elements of damages covered by insurance; courts need not take into account other elements of damages (such as pain and suffering) in determining whether insured was “made whole” by tort recovery. Ludwig, supra.
Application of the Made Whole Doctrine in Iowa is complicated somewhat by Iowa’s procedure for determining whether an insured has been made whole. For example, in Ludwig, the court was asked to resolve whether an insured who had settled her action against the third party had received full compensation for purposes of the Made Whole Doctrine. Id. The insurer in Ludwig argued that when a settlement is made without the involvement of the company, the insured is presumed to be made whole. The insured, on the other hand, contended that because she had not received compensation for her pain and suffering in the settlement she had not been fully compensated. The subrogation provision of the policy provided:
Upon payment under part II of this policy [the “medical protection” provision] the Company shall be subrogated to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery which the injured person or anyone receiving such payment may have against any person or organization and such person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing after loss to prejudice such rights.
Though the Ludwig holding is consistent with policy language, the court didn’t accord it any weight in its analysis. Rather, it relied on the fact that the insured’s medical expenses, lost wages, hired help expense and car damage were established and each attributed specific dollar amounts in the settlement. Because the amount recovered from the third party could be attributed to separate and specific elements of damages, any money identified with covered losses the insurer had paid for was subject to the latter’s subrogation claim, regardless of whether the insured had been compensated for all damages. According to the court, any other rule would make insurers indemnitors of losses not covered in the policy and operate as a windfall to the insured who hadn’t paid for such coverage. While the settlement attributed a specific amount to medical expenses, the court noted if the amount attributed to the subrogated claim cannot be determined by other means, a mini-trial may be required.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Common law CSR acts as a rule of evidence and a rule of damages. It bars evidence of collateral sources and prevents the jury from reducing the verdict. Schonberger v. Roberts, 456 N.W.2d 201 (Iowa 1990). CSR partially modified by Iowa’s comparative fault statute. Iowa Code § 668.14. Evidence of collateral source payments for medical care allowed, and statute permits, but doesn’t require, the jury to reduce the verdict by the amount of collateral sources. If such evidence is introduced, the court must permit evidence and argument as to the costs to the plaintiff of procuring the previous payments or future rights of payment and as to any existing rights of indemnification or subrogation relating to the previous payments or future rights of payment.
Recovery Of Medical Expenses Rule:
Private Insurance: I.C.A. § 668.14A, enacted effective July 1, 2020, restricts damages for past medical expenses recoverable by a personal injury plaintiff to the amounts “actually paid” to the health care providers plus any sums “actually necessary to satisfy the medical care charges that have been incurred but not yet satisfied.” This section does not apply to medical malpractice cases.
Section 622.4 was also enacted effective July 1, 2020, limiting the evidence the jury may consider on the value of a plaintiff’s past medical expenses to documents or testimony identifying the amounts “actually paid” to the health care providers plus any sums “actually necessary to satisfy the medical care charges that have been incurred but not yet satisfied.” It also prevents plaintiffs from directing or encouraging doctors to hold the treatment invoices rather than submit them to health insurers or government programs like Medicare or Medicaid.
Section 668.14 prohibits evidence of collateral source payments from state or federal programs. Iowa courts had previously allowed plaintiffs to introduce the charges set forth on the providers’ invoices prior to write-offs, contractual discounts, or other required reductions. Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150 (Iowa 2004). Plaintiffs could then argue to the jury that the pre-reduction sums reflected the reasonable value of the treatment and therefore the appropriate amount of medical expense damages, even though the “billed” amounts may be much less.
Medicare/Medicaid: Evidence that a “previous payment of future right of payment pursuant to a state or federal program” is prohibited. I.C.A. § 668.14; Wildner v. Wendorff, 723 N.W.2d 451 (Iowa App. 2006).
Medical Malpractice: Economic damages in a medical malpractice verdict may not include amounts that have been replaced or indemnified by insurance, or by governmental, employment, or service benefit programs, or from any other source except the assets of the plaintiff or his family. I.C.A. § 147.136.
Employee Leasing Laws
Unless there is a contract of hire between the temporary employee company and the client company, the client company will not be considered an employer and is subject to a third-party action brought by the worker. However, when a contract of hire exists, the client company is considered the worker’s employer and is immune under the Exclusive Remedy Rule. Fletcher v. Apache Hose & Belting Co., Inc., 519 N.W.2d 839 (Iowa App. 1994); Parsons v. Procter & Gamble Mfg. Co., 514 N.W.2d 891 (Iowa 1994); Swanson v. White Consolidated Indus., Inc., 77 F.3d 223 (8th Cir. 1996).
Hospital Lien Laws
Statute: Iowa Code §§ 582.1 – 4. Hospital Lien.
Perfecting Lien: To protect a lien in Iowa, a provider must:
(1) Provide written notice containing name and address of injured person, date of the accident, name and location of hospital, and name of person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received. § 582.2.
(2) Notice shall be filed in the office of the clerk of the district court of the county in which such hospital is located, prior to payment of any moneys to such injured person, the person’s attorneys or legal representative, as compensation for such injuries. § 582.2.
(3) The hospital shall also mail, postage prepaid, a copy of such notice with a statement of the date of filing thereof to person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries sustained prior to the payment of any moneys to such injured person, the person’s attorneys or legal representative, as compensation for such injuries. § 582.2.
(4) Such hospital shall mail a copy of such notice to any insurance carrier which has insured such person, firm or corporation against such liability, if name and address shall be known. § 582.2.
(5) Such hospital shall also mail a copy of such notice to injured person or to injured person’s attorney or legal representative, if known. § 582.2.
Comments: A hospital that recovers from a judgment, verdict, or settlement pursuant to this chapter shall be responsible for the pro rata share of the legal and administrative expenses incurred in obtaining the judgment, verdict, or settlement. § 582.1A(5).
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: Iowa does not require a general contractor to be responsible for workers’ compensation benefits for an uninsured subcontractor. Therefore, a general contractor is not entitled to the protection of the Exclusive Remedy Rule unless it is directly an employer of an injured worker. Farris v. General Growth Dev. Corp., 354 N.W.2d 251 (Iowa App. 1984).
Comments: Section 85.20 provides that the rights and remedies provided under the workmen’s compensation law are to be the exclusive rights and remedies against the injured employee’s employer only. The Exclusive Remedy Rule protection is applicable only when a relationship of employer and employee exists between the injured employee and the third-party defendant.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? No.
Statute/Case Law: Anderson Plasterers v. Meinecke, 543 N.W.2d 612, 613–14 (Iowa 1996).
Rule Summary: Employer could not recover from negligent third party who injured employer’s workers for loss of workers’ time, expense of hiring replacement workers, and increased workers’ compensation payments. Says such actions have been “almost universally denied.”
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 85.22 describes a workers’ compensation carrier’s subrogation interest as follows:
…a lien on the claim for such recovery and the judgment thereon for the compensation for which the employer or insurer is liable…
The term “compensation” embraces medical expenses permits reimbursement by employer or carrier for medical expenses paid on behalf of employee. Youngs v. Clinton Foods, Inc., 188 F. Supp. 15 (S.D. Iowa 1960). Section 85.27 requires the carrier to provide the following services:
…reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: I.C.A. § 85.22
Waiver Allowed? Nothing in the Iowa Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: None.
Statute of Limitations: 2 Years. I.C.A. § 85.22.
Can Carrier Sue Third Party Directly: Yes, carrier must give 90 days notice. The plaintiff must give notice 10 days before trial.
Right to Intervene: Must intervene or file Notice of Lien within 30 days of receiving the employer’s notice or lose your subrogation rights.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: No.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: First money (past and future). I.C.A. § 85.35. Settlement of the compensation claim bars subrogation.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-Rata. Future fees are paid back as benefits paid.
Future Credit: Yes, may also recover in third-party suit.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on illegal aliens as workers or employees. Iowa Code § 85.61.
Case Law: Staff Mgmt. v. Jimenez, 839 N.W.2d 640 (Iowa 2013).
Comments/Explanation/Other: Jimenez held undocumented worker met the definition of employee. The legislature could have excluded them, but chose not to. Enforcement of the employment contract did not undermine the IRCA.