Filed Amicus Briefs
Gries v. Ames Ecumenical Housing
The Iowa Defense Counsel Association, Iowa Insurance Institute and Iowa Association of Business and Industry filed an amicus brief authored by Thomas Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C. in Des Moines.
Summary: The subject of this appeal, Debra Gries v. Ames Ecumenical Housing, Inc. d/b/a/ Stonehaven Apartments, concerns the validity of the continuing storm doctrine in light of the Court’s adoption of the Restatement (Third) of Torts in Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009). The plaintiff slipped and fell on an icy walkway outside of her apartment building during a period where it was “misting,” but not actively snowing or raining. On appeal, the plaintiff-appellant argued that the Restatement (Third) of Torts effectively abrogated the continuing storm doctrine by implementing a general duty of care which is only to be deviated from in “exceptional cases.” She further argued that even if the continuing storm doctrine was held to be viable, it should only apply during an active storm with continuing prescription—not during a “misting.” The Iowa Defense Counsel filed an amicus brief advocating for the continued validity of the doctrine and its application to all storms that create hazardous conditions, regardless of the precipitation levels. Click this link to view the brief.
Update: On June 5, 2020, the Court issued an opinion affirming the continued validity of the doctrine and holding a “land possessor has no duty to remove the natural accumulation of snow or ice during an ongoing storm and for a reasonable time after the cessation of the storm.” The Court first reviewed the history of the doctrine, noting the doctrine is “long-standing in Iowa.” It then highlighted the policy underlying the doctrine – the recognized “feebleness of human efforts in attempting to cope with the power of the elements.” The doctrine, it reasoned, “reflects a widespread policy consensus that land possessors should not be forced to undertake snow or ice removal in the midst of a storm.” The Court next considered whether the doctrine precluded liability in the case before it. The Court reversed the district court’s grant of summary judgment and remanded, holding there was a factual dispute as to whether there was a continuing storm at the time of the incident. The Court clarified the standard to be applied, stating “mere precipitation is not enough . . . there must be meaningful, ongoing accumulation of snow or ice.” Justice Appel dissented in part, advocating for the abandonment of the continuing storm doctrine. Read the Appeal Decision here.
33 Carpenters v. Cincinnati Insurance
The Iowa Defense Counsel Association, Iowa Insurance Institute and Mutual Insurance Association of Iowa filed an amicus brief authored by Ryan Koopmans and Stephen Locher of Belin McCormick, P.C. in Des Moines.
Summary: In 33 Carpenters Construction, In. v. State Farm Life & Casualty Co., the Iowa Supreme Court considered whether a residential contractor acting as an unlicensed public adjuster can enforce its post-loss contractual assignment of insurance benefits against a homeowners’ insurer. The plaintiff, 33 Carpenters, had approached the State Farm insureds following a hail storm and offered to inspect their home for hail damage. When damage was found, they entered into an agreement whereby the plaintiff would repair the home, in exchange for an assignment of the proceeds of the insured’s State Farm policy. 33 Carpenters submitted estimates directly to State farm throughout this process. The Iowa Defense Counsel filed an amicus brief, advocating for the application of the public adjuster licensure requirements contained in Iowa Code Chapter 522C to 33 Carpenters’ conduct. The amicus brief further urged the Court to hold that the assignment of benefits contract was void pursuant to Iowa Code § 103A.71(5). Click this link to view the brief.
Update: The Court issued an opinion on February 14, 2020, concluding that 33 Carpenters’ was acting as an unlicensed public adjuster by representing the insureds in their hail damage claim against State Farm. The court applied Iowa Code § 103A.71(5) to further hold that the post-loss contractual assignment of insurance benefits was void. The Court reasoned that 33 Carpenters acted as a public adjuster when solicited the insured’s business, advised them ile a claim for damage, and had the insureds sign the assignment of benefits contract. Read more here.
Samuel De Dios v. Indemnity Insurance Company of North America and Broadspire Services, Inc.
The Iowa Defense Counsel Association and The American Insurance Association filed an amicus brief authored by IDCA member Keith P. Duffy of Nyemaster Goode, PC, in Des Moines.
Summary: In this case, the Iowa Supreme Court is being asked to consider whether to expand the tort of bad faith denial of workers’ compensation benefits to third-party administrators of workers’ compensation claims even though the insurance carriers and self-insured employers who retain third-party administrators already face liability for bad faith denial of workers’ compensation benefits. Click this link to view the brief.
Update: In a case that attracted nationwide attention, the Iowa Supreme Court, in a five-to-two decision, recently issued an opinion concluding that “under Iowa law, a common law cause of action for bad-faith failure to pay workers’ compensation benefits is not available against a third-party claims administrator of a worker’s compensation insurance carrier.”In addition to stating that Iowa did not recognize the cause of action, the opinion elaborated on the nature of, and justifications for, a claim of bad-faith denial of workers’ compensation benefits. Read more here.
Naima Cerwick v. Tyson Fresh Meats, Inc.
The Iowa Defense Counsel Association filed an amicus brief by Tyler Smith of Smith Law Firm in Altoona.
Summary: The subject of this appeal, Naima Cerwick v. Tyson Fresh Meats, Inc., concerns an allegation that a hearing officer allowed implicit bias to impact a review of evidence and a final agency decision denying benefits to a worker’s compensation Claimant. The issue framed by the appellant on appeal was: did implicit bias improperly play a role in the decision-making process? The Claimant in Cerwick argued that because the Administrative Law Judge questioned why the Claimant’s attorney requested an interpreter when the Claimant could speak English, that implicit bias improperly motivated the decision. Throughout the proceedings the Claimant requested an interpreter and then asked if she could answer questions in English, instead of Arabic. During the proceedings she often could not think of the words in Arabic. During the hearing, she ultimately waived her right to an interpreter because she was having so much difficulty answering questions in Arabic. The Claimant had injured her back when she fell. However, it was not until much later that she alleged a hip and shoulder injury. She also changed her description of the fall over time. Click this link to view the brief.
Hawkins v. Grinnell Regional Medical Center, et al.
The following entities have filed an amicus brief authored by IDCA members Thomas Boes and Catherine Lucas of the Bradshaw Fowler Proctor & Fairrgrave PC in Des Moines: Iowa Defense Counsel Association,Iowa Insurance Institute and Iowa Association of Business and Industry.
Summary: The subject of this appeal, Gregory Hawkins v. Grinnell Regional Medical Center et al., a Poweshiek County, an Iowa jury awarded over five million dollars to Plaintiff for an employment discrimination case. Plaintiff claimed he had been terminated because of his age and disability and retaliated against.
After a ten-day jury trial and less than 90 minutes following closing arguments, the jury returned a $5.3 million-dollar verdict against Defendants; over $4 million dollars for past and future emotional distress damages.
The specific defendants in this case are the employer and supervising employees of the Plaintiff, but the issue here is much broader. The longstanding and well-respected role of the jury is to serve as a fair and dispassionate arbiter of the facts of the case. The present case exemplifies a trend in which the concerted strategy of the plaintiff’s counsel is to turn jury decision-making on its head and implore jurors to make decisions based on inflamed passion and emotion. The strategy of urging jurors to abandon fair and dispassionate analysis of disputes negatively impacts all defendants and, in fact, all Iowans who rightfully turn to the judicial branch for fair and impartial dispute resolution. Click this link to view the brief.
Update: On June 7, 2019, the Iowa Supreme Court issued its decision in Hawkins v. Grinnell Regional Medical Center, No. 17-1892. IDCA submitted an amicus curiae brief in conjunction with the Iowa Insurance Institute and the Iowa Association of Business and Industry. The amicus brief was focused solely on the issue of the improper, inflammatory, and prejudicial argumentation of plaintiff’s counsel, including “Golden Rule” and “send a message” arguments that were made to the jury. However, the supreme court’s written opinion ultimately did not reach this issue.
The Court reversed the judgment of the district court on appeal due to the improper admission of prejudicial hearsay evidence. The court further went on to approve and adopt “same-decision” affirmative defense in employment litigation. Both holdings are resounding victories for the defendant. Unfortunately, the court did not reach the issue of the improper, inflammatory, and prejudicial argumentation of plaintiff’s counsel in its opinion. The issue did draw the interest of multiple Justices at oral argument, which can be found on the Court’s YouTube channel (see generally timestamps 10:31 to 15:20, 25:59 to 28:16, 30:46 to 34:52 of the video).
The reasoning of the Iowa Supreme Court for not reaching the issue in its written opinion can only be speculated upon. Nonetheless, the challenge of this type of misconduct by plaintiff’s counsel through a coordinated effort of a number of entities in filing the amicus brief was useful in demonstrating to the plaintiffs’ bar that such misconduct will not be ignored.
Read the Iowa Supreme Court decision issued June 7, 2019
Johnson (Helmers) v. Humboldt County
The following entities have filed an amicus brief authored by IDCA members Thomas Boes and Catherine Lucas of the Bradshaw Fowler Proctor & Fairrgrave PC in Des Moines: Iowa Defense Counsel Association, Iowa League of Cities, Iowa State Association of Counties, Iowa State Association of County Supervisors and the Iowa Municipal Utilities Association.
Summary: The subject of this appeal, Johnson (Helmers) v Humboldt County, involved a woman who was injured in an auto accident after hitting a concrete retaining wall in Humboldt County’s right of way. The District Court dismissed the case under the public duty doctrine which says that a breach of duty owed to the public generally (e.g., maintenance of roads) is not actionable unless the plaintiff has some special relationship with the government entity that the general public doesn’t have. The plaintiff is asking the Supreme Court to overrule that doctrine and the Iowa Association of Justice has filed an amicus brief in support. If successful, this would expose counties to significant claims and increased insurance premiums. Click this link to view the brief.
Bell Bros. Heating & Air Conditioning v. Gwinn
The Iowa Association of Business and Industry (ABI), the Iowa Insurance Institute (III), the Iowa Defense Counsel Association (IDCA) and the Iowa Self-Insured Association (ISIA) together authorized Ryan Koopmans of Nyemaster Goode, PC, to file an amicus brief in a case before the Iowa Supreme Court. Brewer-Strong v. HNI Corporation is a workers’ compensation case that addresses the standard for when a claimant can get benefits for unauthorized care. The Iowa Association of Justice (IAJ) is asking the Iowa Supreme Court to lower the standard for unauthorized care. The IAJ wants to revise the test so that the claimant no longer has to prove that the unauthorized care leads to a “more favorable outcome.”
Summary: Here’s the issue summarized by Ryan Koopmans.
In Bell Bros. Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193, 202 (Iowa 2010), the Iowa Supreme Court unanimously ruled that the claimant was not entitled to benefits for unauthorized care because he couldn’t prove that the care resulted in a more favorable outcome than would have been achieved from the authorized care. In that case, the claimant received treatment from an unauthorized doctor that his authorized doctor said was unnecessary.
In this case, the claimant also received unauthorized care, but there’s a twist. The Commissioner found that the authorized doctor would likely have done the same procedure as the unauthorized doctor (surgery for bilateral carpal tunnel). So the issue isn’t so much about what procedure is being done; it’s about who’s doing it (the authorized doctor or an unauthorized doctor).
The Deputy Commissioner and the Commissioner concluded (and the district court agreed) that Bell Brothers still applies: Because the claimant could not prove that she achieved a better result by having the surgery done by the unauthorized doctor, the claimant couldn’t get benefits. The Deputy said that this result may seem “unfair” and “harsh,” but he concluded that Bell Brothers dictates as much.
The Iowa Association for Justice is now asking the Iowa Supreme Court to lower the standard for unauthorized care—both for cases like Bell Brothers (where the type of care is different) and for cases like this (where the care is the same but the doctors providing the care are different). It wants to revise the test so that the claimant no longer has to prove that the unauthorized care leads to a “more favorable outcome.” Click this link to view the brief.