author: LAVORATO, Chief Justice.

text:
    Willis M. HANSEN, Dennis B. Hansen, State Bank of Lawler, and Precision of New Hampton, Inc., Plaintiffs, v. ANDERSON, WILMARTH & VAN DER MAATEN, a Partnership, Calvin R. Anderson, Lee E. Wilmarth and Andrew F. Van Der Maaten, Appellants, v. Michael Kennedy, Appellee.
    No. 99-1229.
    Supreme Court of Iowa.
    July 5, 2001.

      Patrick M. Roby and Christopher L. Bruns of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant.
    Gregory M. Lederer of Simmons, Per-rine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellee.
   LAVORATO, Chief Justice.

In this legal malpractice action, clients sued their lawyers for malpractice stemming from the lawyers’ handling of a commercial transaction for the clients. The lawyers in turn sought indemnity from the lawyer representing the opposing party in the transaction for fraudulent misrepresentation in connection with that transaction. The district court concluded there was no duty supporting an indemnity claim and, on this basis, sustained a motion for summary judgment dismissing the claim. We conclude there was such a duty and therefore reverse and remand.

I. Background Facts and Proceedings.

We previously discussed the details of events leading up to this case in Ezzone v. Riccardi, 525 N.W.2d 388 (Iowa 1994). Willis and Dennis Hansen, represented by the Iowa law firm of Anderson, Wilmarth & Van der Maaten, purchased the assets of Precision Torque Converters of Iowa, Inc. (PTCI) in April 1987. The company was reincorporated as Precision of New Hampton, Inc. (PNH). The sales agreement listed PTCI and Ronald “Rick” Ric-cardi as the parties selling the assets of PTCI. Attorney Michael Kennedy represented PTCI and Riccardi in the transaction.

Later, Harold Ezzone and Patricia La-Rosa sued Riccardi, the Hansens, PNH, and State Bank of Lawler, alleging that they — Ezzone and LaRosa — were the actual owners of PTCI and seeking a variety of damages. Anderson, Wilmarth & Van der Maaten represented these defendants.

The jury found that Ezzone and LaRosa each owned fifty percent of PTCI. The jury awarded damages to Ezzone and La-Rosa for interference with contract claims, conversion of ownership, and breach of confidential relationship. However, to avoid duplicative damages, judgment was only entered on the jury’s award for breach of confidential relationship. The jury also awarded Ezzone and LaRosa punitive damages against the Hansens and State Bank of Lawler.

Ezzone and LaRosa appealed and the Hansens, PNH, and State Bank of Lawler cross-appealed. Among other things, we affirmed the judgment for compensatory damages but reversed and remanded on the issue of punitive damages. Ezzone and LaRosa had also named Kennedy as a defendant; however, Kennedy settled with them before trial.

On November 13, 1996, the Hansens, State Bank of Lawler, and PNH (collectively Hansen plaintiffs) filed suit against Anderson, Wilmarth & Van der Maaten, as well as against Calvin R. Anderson, Lee E. Wilmarth, and Andrew F. Van der Maaten in their individual capacities (collectively Anderson defendants). The Hansen plaintiffs alleged thirteen instances of negligence on the part of the Anderson defendants pertaining to the sale of PTCI and their handling of the subsequent lawsuit brought by Ezzone and LaRosa. They further alleged theories of breach of contract and breach of implied warranty premised on the same events asserted in the negligence claim. District judge Douglas S. Russell heard the case in a bench trial but has not yet ruled.

Meanwhile, the Anderson defendants filed a cross-petition against Kennedy for indemnity. The Anderson defendants alleged the following facts, all of which are supported by the record. Kennedy was the attorney for PTCI and represented the company and Riccardi in connection with the sale of PTCI assets to Willis and Dennis Hansen. The purchase agreement required Riccardi to provide proper evidence that he had appropriate corporate authority to execute the sales documents, including corporate minutes, a certificate of good standing of corporate authority, and evidence of authorization to do business in Iowa.

At Riccardi’s request and shortly before the April 1987 closing, Kennedy prepared two documents entitled “Organizational Meeting of Precision Torque Converters of Iowa, Inc.” and “Board Meeting of Precision Torque Converters of Iowa, Inc.” Kennedy prepared the documents for the purpose of complying with the purchase agreement, and these documents were purportedly dated November 30,1986.

The first document stated that 200,000 shares of stock “shall be issued” in Riccar-di’s name and that Riccardi was elected the sole member of the board of directors. The second document stated Riccardi was elected president and secretary-treasurer of PTCI and that Riccardi would be the official of the corporation with the power to issue deeds and bills of sale on equipment.

These documents were false because (1) there had never been an organizational meeting on November 30, 1986, (2) there was no corporate authority for stock to be issued to Riccardi, (3) no stock was issued to Riccardi, and (4) Riccardi was never elected to the board of directors. Riccardi therefore had no authority to elect himself president and secretary-treasurer, or to be the person with the power to issue deeds and bills of sale on equipment.

Calvin Anderson, one of the Anderson defendants, attended the closing for the buyers. Kennedy provided to Calvin Anderson the two documents required by the agreement as evidence that Riccardi had authorization to enter into the agreement on behalf of PTCI. When he presented those documents to Anderson, Kennedy knew the documents were false, expected Anderson to rely on them, and knew that Anderson would not question the integrity of a fellow member of the bar. Anderson relied on those documents in allowing the sale to be consummated.

Kennedy filed an answer to the cross-petition. He admitted preparing and providing the two documents but denied for lack of information the allegation that the contents of the documents were not true.

Later, Kennedy moved for summary judgment, contending that the Anderson defendants had no basis upon which to premise a claim for indemnity.

The Anderson defendants resisted the motion, contending that Kennedy owed them a special duty by virtue of their relationship and by virtue of various provisions of the Iowa Code of Professional Responsibility.

District judge James C. Bauch granted Kennedy’s motion for summary judgment and dismissed the indemnity claim. The court concluded that “Kennedy represented his clients in an arms-length commercial transaction, and [the] Anderson defendants represented the Hansens,” and that there was no special relationship which could give rise to something more than a “general duty that every member of society owes to every other member — the duty not to harm him through tortious acts.” The court also rejected the argument that the Code of Professional Conduct gives rise to an “independent duty” supporting a claim of indemnity on the basis that this court “has held that an ethics violation does not create an independent, private cause of action.”

The Anderson defendants appeal from this ruling.

II. Scope of Review.

We review a ruling granting a summary judgment motion for correction of errors at law. Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000). Summary judgment is appropriate when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 237(c).

When reviewing a summary judgment ruling, “we examine the record before the district court to decide whether any material fact is in dispute and whether the district court correctly applied the law.” Knudson, 622 N.W.2d at 48. We view the evidence in the light most favorable to the nonmoving party — in this case, the Anderson defendants — and they are “entitled to every legitimate inference that can be reasonably deduced from the evidence.” Id.

Additionally, because the existence of a duty is a question of law, the court may appropriately adjudicate that question on a motion for summary judgment. Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999).

III. Indemnity — the Law Generally.

Generally speaking, “[ijndemnity is a right which inures to one who discharges a duty owed by Mm, but which, as between himself and another, should have been discharged by the other.” 41 Am. Jur.2d Indemnity § 1, at 347 (1995). “It is a device by which a tort-feasor ‘passes through’ his entire liability to a third party whom the tort-feasor alleges is the real party responsible for injury.” 42 C.J.S. Indemnity § 2, at 73 (1991).

Iowa recognizes both statutory and common-law indemmty rights. Statutory indemnification is that which is permitted under the Iowa Code. For example, under Iowa Code section 85.22(1), “an employer or employer’s insurer has a statutory right to be indemnified and to have a lien on any recovery or judgment entered in an action against a third-party tortfeasor.” Daniels v. Hi-Way Truck Equip., Inc., 505 N.W.2d 485, 487 (Iowa 1993).

Common-law indemnity can arise either by contract or, as in case of a tort, by law. See Farmers Coop. Co. v. Stockdales’ Corp., 366 N.W.2d 184, 186 (Iowa 1985). This court has recognized several grounds of common-law indemnity: (1) express contract; (2) vicarious liability; (3) breach of an independent duty between the indemnitor and indemnitee; and (4) the primary or active tortious conduct of the indemnitor as compared to the secondary or passive tortious conduct of the in-demnitee. Id.

The first three grounds are based upon a relationship existing between the indem-nitor and the indemnitee. Id. The fourth ground is based solely upon a common liability arising from the concurrent negligence of the parties. Id. Since Farmers, we have abandoned the primary/active versus secondary/passive liability because it is incompatible with “our statutory network of comparative fault.” Am. Trust & Sav. Bank v. United States Fid. & Guar. Co., 439 N.W.2d 188, 190 (Iowa 1989).

This court has recognized the common-law doctrine of indemnity, absent a contract, in four situations:

“(1) Where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged.
(2) Where the one seeMng indemnity has incurred liability by action at the direction, in the interest of, and in reliance upon the one sought to be charged. Restatement Restitution, Sec. 90.
(3) Where the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged.
(4) Where the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged.”

C.F. Sales, Inc. v. Amfert, Inc., 344 N.W.2d 543, 553-54 (Iowa 1983) (quoting Peters v. Lyons, 168 N.W.2d 759, 767 (Iowa 1969)).

IV. The Parties’ Contentions.

The Anderson defendants contend the district court erred in sustaining Kennedy’s motion for summary judgment on their breach-of-independent-duty theory. Kennedy contends that as a matter of law he owed them no duty. Kennedy also contends that the Anderson defendants’ theory of indemnity is really one of active-passive liability and is therefore barred.

V. Analysis.

A. Duty. The theory of indemnity based on liability stemming from breach of independent duty falls within the concept of equitable indemnity. See 42 C.J.S. Indemnity § 29, at 118. Equitable indemnity is a form of restitution and, as its name suggests, is founded on equitable principles. See Henning v. Sec. Bank, 564 N.W.2d 398, 401 (Iowa 1997); Hunt v. Ernzen, 252 N.W.2d 445, 447 (Iowa 1977). Equitable indemnity “is allowed where one person has discharged an obligation that another person should bear; it places the final responsibility where equity would lay the ultimate burden.” Hunt, at 447-48; accord State ex rel. Miller v. Philip Morris Inc., 577 N.W.2d 401, 406 (Iowa 1998).

To prove a claim for indemnity based on a breach of an independent duty, the party seeking indemnity must establish that the indemnitor owed a duty to the indemnitee. See Daniels, 505 N.W.2d at 490. The issue here is whether attorneys representing persons on opposite sides of a transaction owe each other, as opposed to the clients those attorneys represent, a duty to refrain from intentional misrepresentation throughout the course of the transaction.

To establish that duty, the Anderson defendants rely heavily on Restatement (Third) of the Law Governing Lawyers, section 98, which provides iri part that “[a] lawyer communicating on behalf of a client with a nonclient may not ... [k]nowingly make a false statement of material fact or law to the nonclient....” Restatement (Third) of the Law Governing Lawyers § 98 (1998).

Comment a to section 98 provides:

This Section considers misrepresentations by a lawyer in the course of representing a client. Its rules may apply in representing a client in litigation, such as when negotiating a settlement, as well as in nonlitigation situations.

Restatement (Third) of the Law Governing Lawyers § 98 cmt. a (emphasis added).

In explaining the rationale for the rule, comment b to section 98 states:

A lawyer communicating with a non-client on behalf of a client is not privileged to make a material misrepresentation of fact or law to the nonclient. The law governing misrepresentation by a lawyer includes the criminal law (theft by deception), the law of misrepresentation in tort law and of mistake and fraud in contract law, and procedural law governing statements by an advocate .... Compliance with those obligations meets social expectations of honesty and fair dealing and facilitates negotiation and adjudication, which are important professional functions of lawyers ....
This Section applies equally to statements made to a sophisticated person, such as to a lawyer representing another client, as well as to an unsophisticated person.

Restatement (Third) of the Law Governing Lawyers § 98 cmt. b (citation omitted) (emphasis added).

Comment c to section 98 also explains that

[t]he law of misrepresentation applies to lawyers. For purposes of common-law damage recovery, reckless as well as knowing misrepresentation by a lawyer may be actionable.... A misrepresentation can occur through direct statement or through affirmation or a misrepresentation of another, as when a lawyer knowingly affirms a Ghent’s false or misleading statement. A statement can also be false because only partially true. If constrained from conveying specific information to a nonclient, for example due to confidentiality obligations to the lawyer’s client, the lawyer must either make no representation or make a representation that is not false.

Restatement (Third) of the Law Governing Lawyers § 98 cmt. -c (citations omitted).

Finally, comment g provides that “[i]n general, a lawyer who makes a fraudulent misrepresentation is subject to liability to the injured person when the other elements of the tort are established-” Restatement (Third) of the Law Governing Lawyers § 98 cmt. g.

Clearly, the Restatement takes the position that a lawyer who makes fraudulent misrepresentations to a nonclient, including a lawyer representing another client, is subject to liability when the other elements of that tort are satisfied. There are numerous cases that support this proposition. See, e.g., 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 6.7, 564-66 n. 1 (5th ed.2000) (citing cases from twenty-eight states holding that “[a]n attorney can be liable to a nonclient, even an adversary in litigation, for fraud or deceit.”).

However, these cases generally tend to involve circumstances where an adverse nonclient party in a transaction sues the attorney who made the fraudulent misrepresentations. Here, the adverse nonclients have not sued the attorney who made the fraudulent misrepresentations. Rather, the nondients have sued their own attorneys who represented them in the transaction. Those attorneys in turn are seeking indemnity from the attorney who made the fraudulent misrepresentations.

As mentioned, however, the Restatement recognizes that section 98 “applies equally to statements made to a sophisticated person, such as to a lawyer representing another client, as well as to an unsophisticated person.” Restatement (Third) of the Law Governing Lawyers § 98 cmt. b (emphasis added). If there can be a basis for liability when the injured lawyer sues the defrauding lawyer directly, we see no reason why the rule should not be the same where the injured lawyer sues the defrauding lawyer for indemnity. In fact, one law treatise recognizes as hornbook law the principle that “one who is ... induced to act by the misrepresentations of [ajnother, is entitled to indemnity for recovery by a third party.” See W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 51, at 342 (5th ed.1984).

Because of confidentiality prohibitions, a lawyer may generally refuse to provide information without breaching any duty. However, once the lawyer undertakes to provide information, that lawyer has a duty to provide the information truthfully. Cicone v. URS Corp., 183 Cal.App.3d 194, 202, 227 Cal.Rptr. 887, 891 (1986) (holding that “a duty is owed by an attorney not to defraud another, even if that other is an attorney negotiating at arm’s length”).

The facts in Cicone are strikingly similar to the facts here: A law firm that was a defendant in a malpractice action filed a cross-complaint against the buyer of the law firm’s former clients’ business and the buyer’s lawyer. The court recognized that the defrauded lawyer had a claim for equitable indemnity against the defrauding lawyer. Id. at 213, 227 Cal.Rptr. at 899; see also Scott v. Francis, 314 Or. 329, 334, 838 P.2d 596, 599 (1992) (recognizing defrauded lawyer had indemnity claim against defrauding lawyer).

We hold that once a lawyer responds to a request for information in an arm’s-length transaction and undertakes to give that information, the lawyer has a duty to the lawyer requesting the information to give it truthfully. Such a duty is an independent one imposed for the benefit of a particular person or class of persons. We further hold that a breach of that duty supports a claim of equitable indemnity by the defrauded lawyer against the defrauding lawyer. The district court erred in concluding otherwise.

Public policy favors a duty, running from an attorney representing a party to a commercial transaction, not to make fraudulent misrepresentations to an attorney representing the adverse party in the transaction. As the Restatement notes, “[c]ompliance with those obligations [to not knowingly make false misrepresentations of material law or fact] meets social expectations of honesty and fair dealing and facilitates negotiation and adjudication, which are important professional functions of lawyers.” Restatement (Third) of the Law Governing Lawyers § 98 cmt. b.

Similarly, in American Family Services Corporation v. Michelfelder, where the buyers sued the seller’s attorneys for fraudulent misrepresentation, the court commented on the importance of a lawyer’s honesty and trustworthiness in commercial transactions:

If [the buyer] could not rely on ... representations [of the seller’s attorneys], then [the buyer] would have to constantly contact the [sellers] to negotiate the transaction. As a result, the [sellers] would be distracted from running their business. One of a lawyer’s most marketable assets is that the lawyer’s expertise of legal nuances frees the client to focus on business matters while the lawyer handles legal matters. If, however, adverse parties cannot rely on the lawyer’s representations, then the lawyer’s benefit to the client diminishes, since the adverse party will understandably want to collect information from a reliable source and not from an unaccountable attorney.

968 F.2d 667, 674 (8th Cir.1992).

B. Active-Passive Liability.

Before concluding, we address Kennedy’s fall-back contention that we should not permit indemnity here because the Anderson defendants are really asserting a theory of active-passive liability, which this court has abandoned as a ground for indemnity.

The active-passive theory was premised on the principle that at least two parties must be negligent. Auto Underwriters Corp. v. Harrelson, 409 N.W.2d 688, 692 (Iowa 1987). The theory developed as a mechanism to avoid the harsh result that would sometimes occur from application of the rule that an indemnity claimant must be free from fault or negligence to recover. This court adopted the theory when contribution or apportionment between joint tortfeasors was not available. See Rees v. Dallas County, 372 N.W.2d 503, 506 (Iowa 1985). This court perceived the active-passive theory as “an extreme form of contribution,” Iowa Power & Light Co. v. Abild Construction Co., 259 Iowa 314, 323, 144 N.W.2d 303, 309 (1966), and in a sense, the theory “was a precursor of modern systems of comparative fault because it attempted to transfer ultimate legal liability to the defendant truly in the wrong,” Loose v. Offshore Navigation, Inc., 670 F.2d 493, 501 (5th Cir.1982).

Here, as the Anderson defendants point out, they are not alleging negligence on the part of Kennedy. Rather, they are alleging fraudulent misrepresentation — an intentional tort. Therefore, they conclude, their claim for indemnity cannot be said to be premised on the theory of, or characterized as, active-passive negligence.

The Anderson defendants make a good point. In Fleming v. Threshermen’s Mutual Insurance Co., the court was faced with the issue of “whether a negligent tortfeasor has a right to indemnity or contribution from an intentional joint tortfea-sor.” 131 Wis.2d 123, 124, 388 N.W.2d 908, 909 (1986). In holding that such a right of indemnity exists, the court explained:

[W]e have continued to uphold the rule that those guilty of intentional misconduct are not entitled to contribution. This ... is consistent with our decision ... that an intentional wrongdoer should not benefit from the contributory negligence of a plaintiff.
Recognizing the correctness of these decisions, we hold that a negligent tort-feasor has a right to indemnity from an intentional joint tortfeasor. Were we to allow a negligent tortfeasor only a right to contribution from an intentional joint tortfeasor, the intentional tort-feasor effectively would receive the benefit of contribution from the negligent tortfeasor, in direct conflict with the established law in this state. While this approach allows a defendant who is causally negligent to escape from liability in some circumstances, we believe that shifting the full responsibility for the loss to the intentional tortfeasor serves the policy of deterring conduct which society considers to be substantially more egregious than negligence.

Id. at 910-11 (citations omitted).

Similarly, we have held that Iowa Code chapter 668 — Iowa’s comparative fault chapter which establishes the right to contribution — -“does not cover fraud actions.” Freeman v. Ernst & Young, 516 N.W.2d 835, 837 (Iowa 1994). Therefore, as the Wisconsin court in Fleming concluded, to limit a negligent tortfeasor to only a right of contribution against an intentional tortfeasor would, in effect, amount to the intentional tortfeasor receiving the benefit of contribution from the negligent tortfeasor. Such a result is inconsistent with our comparative fault statute and our cases that do not allow contribution where fraud is involved. Additionally, as the Wisconsin court also concluded, “shifting the full responsibility for the loss to the intentional tortfeasor serves the policy of deterring conduct which society considers to be substantially more egregious than negligence.” Fleming, 388 N.W.2d at 911.

We conclude that the indemnity theory of active-passive liability does not apply here. We further conclude that Iowa Code chapter 668 does not undermine the Anderson defendants’ ability — as alleged negligent tortfeasors — to pursue an indemnity action against Kennedy — an alleged intentional tortfeasor.

VI. Disposition.

In sum, we conclude the Anderson defendants have a viable claim of equitable indemnity against Kennedy on the theory of breach of independent duty. The district court erroneously concluded otherwise. We therefore reverse the summary judgment ruling and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CADY, Justice. NEUMAN, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Mary Jane HAGER, Appellant.
    No. 99-1251.
    Supreme Court of Iowa.
    July 5, 2001.
    Rehearing Denied July 30, 2001.

      Dean Stowers of the Rosenberg Law Firm, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenowith and Jeff Noble, Assistant County Attorneys, for appellee.
   CADY, Justice.

In this appeal, we must decide if the district court may reject a plea agreement in a criminal case for the sole reason that it was tendered after a court-imposed deadline for the submission of plea agreements. We conclude the district court abused its discretion in refusing to accept the plea. We reverse the judgment and sentence imposed by the district court and remand the case for further proceedings.

I. Background Facts and Proceedings.

The facts giving rise to this criminal proceeding are both frightening and bizarre. They can best be described as a product of the common human inclination to jump to conclusions based on the perceptions of an event. They began when Mary Hager learned that her son, Rob, was a suspect in a bank robbery with an accomplice named Michael Weckman. Hager was well acquainted with Weckman. He had been Rob’s friend since junior high school. It was not a friendship Hager encouraged. In Hager’s words, Weckman was “evil.” On more than one occasion he had threatened Hager or her family with violence.

Television newscasts reported that local officials and FBI agents were searching for the two men. Rob, meanwhile, left messages on Hager’s answering machine, pleading for her help and claiming that Weckman had a gun to his head. He also called his girlfriend, Charity, who told Hager that Rob wanted to surrender. Charity planned to meet Rob under a bridge crossing the Des Moines River at SE 14th Street. Hager agreed to join her.

Hager drove to Charity’s apartment in her husband’s truck. She left a phone message with a Des Moines police detective about their plans. While waiting for the detective to return her call, Hager retrieved a loaded gun from the truck. She thought she might need it for protection. The detective never returned her call.

Hager and Charity, along with Charity’s fifteen-year-old sister, headed for the Harriett Street boat ramp on the Des Moines River in Charity’s Ford Bronco. It was about 2:30 a.m. When they reached the top of the hill leading down to the ramp, they observed a car facing the river with its trunk lid open. The women speculated that Rob’s body was in the trunk. Hager, who was in the open back seat of the Bronco, yelled for her son but received no response.

There were two individuals near the car next to the river. They were Jason Howell and Lynett Bradwell. However, they had no connection to the events up to this point in time. Instead, they were at the river fishing. Howell and Bradwell began to feel increasingly uneasy about the presence of the Bronco at the top of the hill and decided to leave. They thought perhaps the Bronco was stalled and the occupants needed help. They put their fishing gear in the trunk of their car and headed up the ramp toward where the Bronco was stopped.

As Bradwell and Howell approached the Bronco, they saw Hager lean over the back seat of the Bronco with her arms pointed toward them. Suddenly a shot rang out, and a bullet hit their vehicle. They quickly drove around the Bronco, saw another flash and heard another gun shot. Frightened that someone was out to kill them, they sped onto SE 14th Street.

Hager and Charity, still thinking Rob was in the trunk, gave chase at sixty miles per hour. Hager dialed 911 on her cell phone to summon help. Bradwell and Howell, meanwhile, pulled into a convenience store parking lot to call the police. As they ran from their car, Hager and Charity saw them and realized their mistake. They so advised the 911 dispatcher and met police at a nearby gas station where they were immediately arrested.

The State charged Mary Hager with terrorism with intent, a class “C” forcible felony, and going armed with intent, a class “D” felony. See Iowa Code §§ 708.6, .8 (1997). Hager’s counsel filed defenses of diminished capacity and self-defense or defense of others. See Iowa Code §§ 701.5 (intoxicants or drugs), 704.3 (defense of self or others). While preparing for depositions, defense counsel became concerned about Hager’s mental state. The trial date was continued, first to permit consultation with Hager’s psychiatrist and, later, to enable the psychiatrist to complete a formal forensic psychiatric evaluation. The examination resulted in a diagnosis of post-traumatic stress disorder and recurrent depression. At no time was Hager judged incompetent to stand trial or assist in her defense.

Plea negotiations between the State and Hager were ongoing. Hager, believing her actions were justified by fear for her son’s life, repeatedly expressed reluctance to plead guilty, even to substantially reduced charges with a recommendation by the State for probation.

Trial was eventually set for April 19, 1999, and the district court conducted a final pretrial conference on April 15. At the final pretrial conference, the State again offered to reduce the charges in exchange for a plea of guilty. Hager, however, reiterated her refusal to accept the plea offer. In response, the district court explained to Hager and her attorney:

[I]t is the practice in this district that any plea offers that result in a plea must take place no later than the last court day before the date of trial....
Under ... our standard procedure in Polk County, the Defendant could enter a plea of guilty as charged once the trial date arrives but we have been disinclined to take pleas to reduced charges on the morning of trial because of the inconvenience that [it] causes for the courts, counsel, witnesses, and the ... jurors....

Hager refused to budge in response to the admonition by the district court. The court then concluded the proceeding by saying, “The plea offer is not accepted and the case will simply go to trial.”

The case then came before the district court for trial as scheduled on April 19. Prior to the commencement of the selection of the jury, the State again offered Hager the plea agreement but did not believe the court would accept the plea at this point in the proceedings. Hager eventually expressed a willingness to accept the plea agreement and the attorneys consulted with the district court judge in chambers to determine if he would accept the plea. A bill of exceptions executed by the court summarized the proceedings:

On the morning of April 19,1999 prior to the commencement of jury selection, the court was advised by counsel for the State and the Defendant that the parties were interested in disposing of the charges against the Defendant pursuant to a plea agreement whereby the county attorney would reduce the charges against the Defendant and Defendant would enter Alford pleas to the reduced charges. The court explained to both counsel, as it had on the record on April 15, that such a disposition on the morning of trial was contrary to the court’s policy and was therefore unacceptable.

The case then proceeded to trial. The jury eventually returned verdicts of guilty to both charges of the trial information following a five-day trial. After the district court denied a motion for new trial and a motion in arrest of judgment, Hager was sentenced to a term of incarceration.

Subsequent post-trial hearings confirmed that the district court rejected the plea offer solely because it was presented after the plea deadline. The court explained during the hearing on a motion for new trial:

[T]he record is clear as to what transpired [on the morning of trial].... The Court indicated to counsel on the morning of trial a plea deadline had been set, the plea deadline had expired and as a consequence, the case would go to trial.

In overruling the motion, the district court further remarked:

This is simply a case in which the court set a guilty plea deadline for very good reasons and the Defendant did not avail herself of [it]....
This is not form over substance. This is concern not about Mary Jane Hager but about every other Mary Jane Hager that may need access to our courts and [e]nsuring that there are ample judges, jurors, witnesses, counsel available to deal with all of them.

Hager appeals. She raises numerous issues. However, our review is confined to the single issue of whether the district court abused its discretion by refusing to entertain the plea agreement based solely on the court’s policy of refusing pleas on the morning of trial.

II. Standard of Review.

We review a decision of the district court to reject a guilty plea for an abuse of discretion. See State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981). To the extent the issue also raises due process concerns, our review is de novo. State v. Griffin, 564 N.W.2d 370, 372 (Iowa 1997).

III. Plea Deadline.

Plea bargaining has long been recognized as “an essential component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971). Foremost, “[i]t leads to the prompt and ... final disposition of most criminal cases....” Id. at 261, 92 S.Ct. at 498, 30 L.Ed.2d at 432. This affords the prosecutor additional leverage in prosecuting other crimes, and allows defendants who acknowledge guilt to spare themselves and the public an expensive trial. See United States v. Jackson, 390 U.S. 570, 584, 88 S.Ct. 1209, 1217-18, 20 L.Ed.2d 138, 148 (1968). Yet, as common as plea agreements are in our criminal justice system, a defendant has no constitutional right to have a court accept a guilty plea. Wenzel, 306 N.W.2d at 771. Instead, “courts have discretion to refuse to accept [a] guilty plea[].” Farley v. Glanton, 280 N.W.2d 411, 415 (Iowa 1979); see Iowa R.Crim. P. 8(2)(b) (“court may refuse to accept a plea of guilty”). This discretion is necessary in light of the variety of considerations inherent in the process.

There may be a number of reasons for courts to refuse to accept a plea bargain. Those reasons, however, have "normally centered on doubts with the defendant’s guilt. See Farley, 280 N.W.2d at 413-16 (trial court refused to accept plea when it believed defendant had possible entrapment defense); see also State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974) (no requirement that court refuse plea when record supported defendant’s guilt). This case presents the first time we have considered the court’s ability to refuse a plea bargain because it was presented after deadlines for pleas established by the court.

The discretion possessed by trial courts to refuse to accept a guilty plea is broad but not unlimited. Farley, 280 N.W.2d at 415. Yet, the parameters of this discretion have no clear lines, and there are no established criteria or standards to consider in the exercise of discretion. United States v. Robertson, 45 F.3d 1423, 1437 (10th Cir.1995) (citing 1 Charles Alan Wright, Federal Practice and Procedure § 175.1 (1982)). Thus, we must examine the boundaries of this discretion by considering whether it is broad enough to permit a trial court to reject a plea offer for the sole reason that it is made after the expiration of a deadline for pleas.

A number of courts have held that a trial court acts within its discretion by refusing to accept a plea agreement tendered after a plea deadline. See United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir.1999); United States v. Ellis, 547 F.2d 863, 868 (5th Cir.1977); People v. Cobb, 139 Cal.App.3d 578, 188 Cal.Rptr. 712, 716 (1983); People v. Jasper, 17 P.3d 807, 813-14 (Colo.2001); People v. Grove, 455 Mich. 439, 566 N.W.2d 547, 558 (1997); State v. Brimage, 271 N.J.Super. 369, 638 A.2d 904, 908-09 (App.Div.1994). Other courts have determined that trial courts abuse their discretion by rejecting plea agreements because they did not meet a guilty plea deadline. See United States v. Shepherd, 102 F.3d 558, 562-63 (D.C.Cir.1996); Robertson, 45 F.3d at 1438; United States v. Moore, 916 F.2d 1131, 1135-36 (6th Cir.1990); State v. Sears, 208 W.Va. 700, 542 S.E.2d 863, 867-68 (2000); see also Hare v. Superior Ct., 133 Ariz. 540, 652 P.2d 1387, 1388-90 (1982) (rule imposing deadlines on the acceptance of pleas exceeded court’s jurisdiction). Although the factual circumstances in some of these cases may be responsible for producing the outcome, the pivotal dispute among the various courts centers on the balancing of the myriad of competing interests.

On one hand, there are many factors which weigh against the exercise of discretion to refuse to accept a guilty plea because it was presented after a guilty plea deadline. Plea agreements are not solely within the realm of courts. See Robertson, 45 F.3d at 1437-38. The differing roles of the court and the prosecutor within our system of justice can either broaden or narrow the discretion of courts to reject pleas depending on the type of plea agreement presented. While plea agreements that impact sentencing powers of courts generally fall within the discretion of the court, plea bargains which involve charging decisions are primarily within the discretion of the prosecutor. See id. at 1437. Thus, the court’s role becomes limited when the plea agreement presented to the court does not bind the sentencing powers of the court. See United States v. Miller, 722 F.2d 562, 564 (9th Cir.1983); United States v. Maggio, 514 F.2d 80, 82 (5th Cir.1975). The doctrine of separation of powers compels the judiciary to give respect to the independence of the executive branch. Miller, 722 F.2d at 565. When a plea agreement does not directly impact the sentencing powers of the court, as in this case, the decision to reduce the charges primarily rests with the discretion of the prosecutor. See id. at 564-66. This discretion is impeded when the court exercises its discretion by refusing to accept the plea. See id. at 566.

Plea agreements also affect fundamental interests of the defendant. Although the defendant has no constitutional right to present a plea, the process nevertheless involves interests as fundamental as freedom and imprisonment. See id. at 565. In the context of sentencing, where these same interests are present, we demand independent consideration by the sentencing court in each case, and reject the use of fixed policies. See State v. Jackson, 204 N.W.2d 915, 917 (Iowa 1973). Likewise, a fixed policy should not be followed in rejecting plea agreements. See Miller, 722 F.2d at 564-65. The exercise of discretion in the area of imprisonment and freedom has been one of the hallmarks of our judicial system.

On the other hand, it is important for our legal system to be effectively and efficiently administered. Consequently, the efficient processing of a case has become an important element in the administration of our courts, and a plea deadline in criminal cases is one method commonly utilized by courts to help manage increasing demands on the criminal dockets. Deadlines are a way to help distinguish those cases that do not ultimately need a trial from those cases that require a trial, at a point in the process to help ensure that the time and resources involved in the preparation for trial are not devoted to those cases that will ultimately be resolved by a guilty plea. A plea deadline becomes a cutoff point for administrative purposes, and enables the court to direct its trial resources to those cases in which the parties do not reach a plea agreement by a certain date. This is not only important to the efficient operation of our criminal docket, but also to the overall operation of our court system. Criminal cases are given priority over most civil cases. Consequently, civil trials are delayed when criminal cases are scheduled for trial but ultimately settled on the morning of trial by a plea bargain. See Cobb, 188 Cal. Rptr. at 713-14.

Additionally, strict adherence to guilty plea deadlines is justified as a means of giving the deadline integrity. See Ellis, 547 F.2d at 868. If parties are allowed to submit plea agreements after the deadline has passed, it would render the deadline meaningless. Id. Thus, deadlines operate with uniformity to all litigants.

Those courts that have approved plea deadlines have generally determined that the traditional deference given to prosecutors to reduce charges and the interest of the defendant to plead guilty are outweighed by the needed judicial discretion to control the court schedule and effectively utilize court resources. See Gamboa, 166 F.3d at 1331; Ellis, 547 F.2d at 868; Grove, 566 N.W.2d at 558. Thus, they consider the discretion to refuse to accept a plea bargain to be broad enough for the court to reject plea bargains presented after a deadline. Id. Moreover, these courts recognize that court-imposed plea deadlines have good cause exceptions which permit some late pleas to be accepted and to overcome any claims of arbitrary action. See Jasper, 17 P.3d at 814.

The trial court in this case, in rejecting the late plea tendered by Hager, followed the rationale articulated by those courts which have approved plea deadlines. In particular, it observed that it was necessary to strictly adhere to the deadline in this particular case in order to achieve the greater overall goal of efficient management of our entire court system.

In our consideration of the competing interests at stake, we recognize the vital need to administer courts in an efficient manner. However, efficiency must always be compatible with fairness, and fairness must consider the fundamental principles which drive our system of justice and the rights and liberties of each individual. There are many procedures courts could employ that would quickly eliminate backlogs and enable our legal system to run with the efficiency of an assembly line, but they are not implemented because they would offend the principles fundamental to our system of justice.

Plea deadlines not only adversely impact prosecutorial discretion and individual interests, but strict adherence to deadlines impedes the very discretion of the court. Like the use of a fixed policy in sentencing, a fixed plea deadline is the very antithesis of discretionary decision-making. See Jackson, 204 N.W.2d at 916. It precludes the exercise of discretion. See Miller, 722 F.2d at 565. A court abuses its discretion when it fails to exercise any discretion.

The State argues the plea deadline in this case was not actually fixed because it included a good cause exception. Thus, the State asserts that the court did not strictly adhere to the deadline but necessarily considered any good cause ground that would have permitted a late plea. The State claims the good cause component to the deadline renders the decision-making process discretionary.

It is important to observe that the good cause exception to the deadline in the case was not broad enough to include a mere change of mind or a renegotiation of the plea bargain by the parties. Thus, the deadline is fixed for litigants, like Hager, who simply change their mind after the plea deadline. Moreover, the sole reason the court rejected the plea in this case was because it was late. The court strictly adhered to the deadline and refused to consider the individual pressures and indecision faced by Hager.

In balancing the need for deadlines against the fundamental principles which are impacted by deadlines, we further recognize that the underlying rationale supporting the deadlines is flawed. While deadlines are imposed as a means to eliminate the expense and time of assembling witnesses, jurors, and others for a trial that never occurs because the defendant pleads guilty on the morning of trial, the refusal to accept such a plea on the morning of trial only compounds the time and expense when the parties are forced to try the ease. The trial may last several days or weeks, and the expense is actually increased exponentially. Moreover, the function of a jury and the other components of a trial can at times extend beyond those matters that ultimately result in a verdict. At times, the very presence of a jury on the morning of trial can engender a desire from the defendant to plead guilty that cannot be replicated at any prior time in the process. Thus, the jury’s function to help resolve cases can be performed at times by its mere presence on the morning of trial. If the process results in a conclusion to a case on the morning of trial which was not possible the day before, the time and resources devoted to the case were not wasted. It is also important to consider that a criminal case that concludes by a trial often continues to burden the court system with the expense of an appeal, as in this case, or other postconviction proceedings. On the other hand, a plea of guilty results in the waiver of a variety of rights, and normally concludes the case without the expense of further proceedings. See State v. Hook, 623 N.W.2d 865, 867 (Iowa 2001).

In balancing administrative benefits of deadlines against those rudimentary principles which are impacted by the deadlines, we observe that our system of justice has some costs that cannot be necessarily eliminated or reduced by principles of efficiency recognized in private business or even in other aspects of government. Our system of justice must strive to be efficient, but efficiency in a justice system does not necessarily have the same meaning as it does in the operation of a business. The goals are different. Justice cannot be produced by an assembly line, and the principles of court administration must not become detached from those principles which lie at the heart of our system of justice. Instead, they must work in harmony with those basic principles inherent in our concept of a justice system.

We conclude the trial court in this case abused its discretion by refusing to consider the terms of the plea agreement solely because it was presented after the deadline for pleas set by the court. A missed plea deadline, alone, will not support the refusal to accept a plea agreement. There must be additional reasons. These additional reasons are broad and fall within the ambit of the court’s power over the administration of justice. See United States v. Severino, 800 F.2d 42, 46 (2d Cir.1986) (court may reject plea if it has reasonable grounds to believe it would be contrary to the sound administration of justice). They may relate to the terms of the plea bargain, the proper disposition of the case, or even any underlying impunity by a defendant toward the efforts by the court to control its docket through deadlines. Thus, a court could act within its discretion to refuse to accept a guilty plea after a missed deadline if the defendant ignores the deadline by making no reasonable effort to reach a plea agreement prior to the deadline.

Courts are given discretion in this area of the law, and fail to exercise it by strictly adhering to a plea deadline. The benefits of strict adherence to plea deadlines do not outweigh the need for judges to exercise discretion, the deference to the discretion of prosecutors, and the rights of the defendant. Moreover, Hager clearly suffered prejudice by the abuse of discretion. See Shepherd, 102 F.3d at 563.

IV. Conclusion.

We reverse the conviction and remand the case to the district court with directions to consider the request by Hager to enter a plea of guilty pursuant to the terms of the plea bargain offered prior to trial. In exercising discretion to accept or reject the plea, the court may not refuse the plea for the sole reason that it was tendered after the plea deadline.

REVERSED AND REMANDED.

All justices concur except NEUMAN and TERNUS, JJ., who dissent, and SNELL, J., who takes no part.

NEUMAN, Justice

(dissenting).

“There are some cases that in fairness are best resolved by a jury.” With these words, the district court summed up the failed attempt to get Mary Hager to plead guilty to reduced charges at the pretrial conference held on Thursday preceding her Monday trial. Now convicted of terrorism and going armed with intent, Hag-er blames the court and her lawyer for preventing her from tendering a favorable — but belated — guilty plea on the morning of trial. It’s an interesting tactic, but one we should not reward. I therefore respectfully dissent.

My quarrel with the majority’s reasoning is two-fold. First it utterly disregards the State’s principal argument supporting the district court’s decision — that there was, in fact, no plea agreement reached on the morning of trial. Even assuming ar-guendo the court had a fixed and unwavering policy that permitted no accommodation for “good cause,” no reversal based on abuse of discretion would be warranted. It is evident from the record that defense counsel was still cajoling Hager — unsuccessfully — on the morning of trial. No agreement was reduced to writing. Although Hager rests her due process argument on the fact that rule 9 requires “the disclosure of the agreement in open court,” the rule’s requirement presupposes that an agreement has been reached. See Iowa R. Crim. P.' 9(2). But beyond a vague reference to “reduced charges,” nothing before us reveals a firm charging concession by the State or, more importantly, a willingness by Hager to tender a guilty plea.

Second, the majority has joined the distinctly minority view concerning modern court administration. Those courts that recognize the value of plea deadlines as part of sound trial management protect against arbitrary rejection of belated pleas by tempering deadlines with exceptions to permit relief from the rule for good cause. Those same courts recognize, however, that good cause implicates “more than a mere change of mind or a renegotiation by the parties.” State v. Jasper, 17 P.3d 807, 814 (Colo. 2001). By rejecting that sound caveat here, the majority permits a defendant’s indecision to trump not only trial court discretion but sound administrative policy as well.

Despite my misgivings about the factual and legal bases for the majority’s decision, I am perhaps most puzzled by the prospect of what will happen on remand. What plea is there for the court to entertain? No doubt Hager, having once been convicted, will now be much more amenable to plea negotiations. But, despite the majority’s protestations to the contrary, that sounds to me more like manipulation than justice.

TERNUS, J., joins this dissent.

      . Iowa Code section 708.6 states, in pertinent part:
      A person commits a class "C” felony when the person, with the intent to injure or provoke fear or anger in another, shoots ... a dangerous weapon at, into, or in a ... vehicle ... and thereby places the occupants or people in reasonable apprehension of serious injury....
      Section 708.8, defining the crime of going armed with intent, states:
      A person who goes armed with any dangerous weapon with the intent to use without justification such weapon against the person of another commits a class "D” felony-

      . The plea bargain offered by the State would have reduced the charges to two counts of assault with a weapon, an aggravated misdemeanor.

      . The plea deadline policy was an unwritten rule implemented by the district judges in Polk County. It was established after the Chief Judge of the Fifth Judicial District created a committee to improve the processing of felony cases in Polk County. The policy provided that the district court would not accept plea agreements to lesser charges on the day of trial without compelling circumstances or good cause.

      .The basic difference between the plea discussions on the morning of trial and the plea agreement offered at the pretrial conference was that the plea bargain on the morning of trial involved an Alford plea. Hager earnestly believed that her actions were not criminal under the circumstances, and she could not plead guilty to a crime she believed she did not commit. The Alford plea would have allowed Hager to enter a plea without an admission of guilt.

      . We recognize the decision by the trial court to refuse the plea bargain was based on a plea agreement that was never memorialized, and an issue may arise on remand as to the terms or existence of the agreement. Notwithstanding, the record is clear that the State was not opposed to resolving the case by a plea agreement on the morning of trial. Thus, even if the parties never formalized the plea bargain before presenting it to the trial court on the morning of trial, Hager suffered prejudice because the trial court decision denied her the opportunity to finalize the plea agreement with the State. If the parties are unable to reach a plea agreement on remand, the district court shall schedule the case for trial.


author: SNELL, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR JOHNSON COUNTY, Defendant.
    No. 99-1836.
    Supreme Court of Iowa.
    July 5, 2001.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and Linda M. Paulson, Assistant County Attorney, for plaintiff.
    Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for defendant.
   SNELL, Justice.

This case comes to us on further review from the court of appeals, where the district court’s opinion was upheld. Because we determine that a sentencing court has no authority to drop the third digit of an intoxilyzer reading, we vacate the decision of the court of appeals and sustain the writ. The case is remanded to the district court for resentencing.

I.Factual Background and Procedure

The facts providing the basis for this appeal are quite simple. A drunk driver, Seth Matthew Scott, provided two readings to Johnson County police on the night he was arrested. His preliminary breath test conducted at the scene of the offense was .13. Later, he gave an intoxilyzer reading of ,153. Scott pled guilty to OWI, first offense, a serious misdemeanor. Iowa Code § 321J.2(2)(a) (1999). He requested a deferred judgment.

The sentencing court considered the two test results together, stating: “The Court does not disregard either test” and finds the preliminary breath test result was the “most proximate to the Defendant’s blood alcohol concentration at the time he operated his motor vehicle.” The court then chose to drop the third digit of the .153 intoxilyzer reading and grant a deferred judgment. The State argues each action was in error. First, because the relevant statute clearly holds that preliminary breath tests should be discarded in sentencing proceedings, the court was not at liberty to be persuaded, if indeed it was, by the preliminary breath test reading. See id. § 321J.5(2). And second, because a defendant is precluded from receiving a deferred judgment if his test result is greater than .15, the decision to drop the third digit enabled the court to grant the OWI offender a deferred judgment where it would have been otherwise unable to do so. See id. § 321J.2(3)(a)(l).

The State filed a writ of certiorari with this court. We chose to let the court of appeals decide the merits of the writ. Although the court of appeals recognized that the district court impermissibly considered the preliminary breath test reading, it found this was not reversible error, as the court also considered the intoxilyzer results. It then determined that the district court properly discarded the third digit of the intoxilyzer reading because the district court took judicial notice of the machine’s manual, which it felt indicated that the first two digits are “determinative.” On further review, the State argues that under a plain reading of section 321J.2(3)(a)(l), the district court is not authorized to drop the third digit of a reading admitted into evidence.

II. Scope and Standard of Review

Our review on writ of certiorari is for correction of errors at law. Hewitt v. Iowa Dist. Ct., 538 N.W.2d 291, 292 (Iowa 1995). To the extent we are required to pass judgment on the district court’s interpretation of a legislative provision, we likewise review for legal error. State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998). “When the text of a statute is plain and its meaning clear, the court should not search for a meaning beyond the express terms of the statute.... ” Henriksen v. Younglove Constr., 540 N.W.2d 254, 258 (Iowa 1995). Only when we “find[ ] a statute is ambiguous or that reasonable minds could differ as to its meaning, ... should [we] look to the rules of statutory construction for the interpretation.” State v. Maher, 618 N.W.2d 303, 304 (Iowa 2000) (citing State v. Rodgers, 560 N.W.2d 585, 586 (Iowa 1997)).

III. Issue on Appeal

We agree with the court of appeals that by considering the preliminary breath test score, the district court acted contrary to section 321 J.5(2), which reads:

The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to prove that a chemical test was properly requested of a person pursuant to this chapter.

Iowa Code § 321J.5(2) (emphasis added).

It is apparent here that the district court was partially persuaded by the lower preliminary breath test score to grant a deferred judgment, otherwise there was no need to affirmatively state the court chose not to disregard it. Clearly, this decision is contrary to section 321J.5(2). Id.; accord State v. Iowa Dist. Ct., 617 N.W.2d 33, 35-36 (Iowa Ct.App.2000) (overruling the decision to grant a deferred judgment when the preliminary test score was .15, but the intoxilyzer score was .161). The trial court is not at liberty to be persuaded to grant a deferred judgment by considering a preliminary breath test score. A sentencing decision influenced by improperly considering a preliminary test result is a decision based on an error of law. Iowa Code § 321 J.5(2); accord Iowa Dist. Ct., 617 N.W.2d at 35 (“The Code section ... plainly states the preliminary test may not be used in any court action except for the limited purpose so defined, which does not include use for determining a sentencing option.”).

The court of appeals recognized this error, but held it was not reversible error because the district court’s sentence was also based upon an intoxilyzer score of .15. The district court arrived at this number by dropping the third digit of the .153 reading as per the machine’s operating manual, which indicated that “only the first two digits are used.” Such an action was contrary to section 321J.2(3)(a)(l). The district court does not have authority to drop the third digit of an intoxilyzer reading for any reason.

Iowa Code section 321J.2(3)(a)(l) states that a deferred judgment may not be granted if a defendant’s intoxilyzer test results exceed .15. This provision reads:

3. a. Notwithstanding the provisions of sections 901.5 and 907.3, the court shall not defer judgment or sentencing ... if any of the following apply:
(1) If the defendant’s alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with this chapter exceeds .15, regardless of whether or not the alcohol concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the test equals an alcohol concentration of .15 or more.

Iowa Code § 321J.2(3)(a)(l) (emphasis added). The defendant’s results here were .153. This score is greater than .15 in all respects. As such, the defendant was not eligible for a deferred judgment.

It is a well-known fact that intoxilyzer machines display three digits. Our cases which discuss intoxilyzer readings overwhelmingly relate the score using a three-digit number. Bruno v. Iowa Dep’t of Transp., 603 N.W.2d 596, 597 (Iowa 1999); State v. Nelson, 600 N.W.2d 598, 599 (Iowa 1999); State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999); State v. Johnson, 569 N.W.2d 603, 604 (Iowa 1997); State v. Lloyd, 513 N.W.2d 742, 743 (Iowa 1994); State v. Rosenstiel, 473 N.W.2d 59, 61 (Iowa 1991), overruled on other grounds by State v. Cline, 617 N.W.2d 277 (Iowa 2000). The legislature likely knew this fact when it composed section 321J.2(3)(a)(l). It chose the number .15 as its cut-off, not .159.

The legislature has clearly recognized that intoxilyzer test results are reliable and accurate enough to form the basis for a defendant’s sentence. Iowa Code § 321J.2(3)(a)(l) (indicating that breath test results can be considered for sentencing). Further, this section was recently amended to disallow a margin of error reduction to the score for sentencing determinations. See 1998 Iowa Acts ch. 1188, § 3; see also Guzmanr-Juarez, 591 N.W.2d at 2-4 (finding that the legislative intent was to preclude score reduction by the margin of error even before the amendment). The margin of error for this machine is 1.004 (a three-digit number). By disallowing the lowering of the scores by .004, the -legislature was aware that those with a score of .16 would not have the benefit of a decreased score into the “safe territory” recognized by the district court and the court of appeals. This is likely because the legislature did not intend this area to be a safe harbor, as it is greater than .15. Likewise, this evidences an intent by the legislature not to resolve the machine’s shortcomings in favor of defendants for purposes of sentencing.

Previous cases have recognized that a three-digit reading above .15 justifies stricter sentencing. See, e.g., State v. Rettinghaus, 591 N.W.2d 15, 16 (Iowa 1999). Specifically, Guzmanr-Juarez involved a defendant with a .154 reading that the court refused to lower by the margin of error. Guzman-Juarez, 591 N.W.2d at 2. We held that the statute precludes the lowering of the score by the margin of error, thus, the defendant’s inability to receive a deferred judgment was allowed to stand. Although we were not asked if the third digit could be dropped, we noted: “Because the defendant’s test results were more than .15, the trial court correctly ruled that the defendant was not eligible for a deferred judgment.” Id. at 4 (emphasis added). Moreover, we clearly acknowledged that if the score were reduced by its margin of error, it would lead to a different result. “The intoxilyzer certification established a margin of error of 1.004.... Applying [this] figure to the defendant’s alcohol concentration of .154 results in a number that does not exceed .15,” which would “mak[e] him eligible for a deferred judgment.” Id. at 2 & n.l. These statements evidence a clear and unmistakable recognition that because the defendant’s score was .154, he was ineligible for a deferred judgment.

Further, if the legislature did not intend the three-digit reading to be used, there would be no need to disallow the use of the margin of error reduction. See generally Jenney v. Iowa Dist. Ct., 456 N.W.2d 921, 923 (Iowa 1990)(“We assume an amendment is adopted to accomplish a purpose and was not simply a futile exercise of legislative power.”). For example, if a court is allowed to drop the third digit of a .154 reading, the defendant is always eligible for a deferred judgment regardless that he did not receive the margin of error reduction. Therefore, the language prohibiting a margin of error reduction would be useless and unnecessary.

Accordingly, we find that section 321J.2(3)(a)(l) does not give the district court discretion to drop the third digit. Clearly, the legislature’s preference is that this subsection be interpreted against granting deferred sentences. This is evidenced by its decision to amend the subsection in 1998, quelling any doubt that a score can be reduced by its margin of error. See 1998 Iowa Acts ch. 1138, § 3.

When a statute’s plain meaning is clear, an attempt to suggest it is ambiguous to lead to a favorable result must fail. See Maher, 618 N.W.2d at 305 (“If the statute in question is not ambiguous, the determination is complete.”). When a statute is not ambiguous, we are not at liberty to search for a meaning outside its terms, e.g., by looking at an operating manual. Id.; Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Carp., 606 N.W.2d 359, 363 (Iowa 2000); Henriksen, 540 N.W.2d at 258. As such, when a statute’s interpretation comes down to the plain meaning versus a manual’s direction — plain meaning must prevail. See Teggatz v. Ringleb, 610 N.W.2d 527, 530 (Iowa 2000). The statute indicates any number over .15 defeats a deferred judgment sentence. “To adopt the [district court’s] interpretation of this statute would require us to read something into the law that is not apparent from the words chosen by the legislature. This we cannot do.” Guzman-Juarez, 591 N.W.2d at 2. As such, in the present case, “the court selected a sentence not allowed by law under the facts of [the] case.” Iowa Dist. Ct., 617 N.W.2d at 35.

The defendant argues that a conclusion contrary to the district court’s interpretation would violate his constitutional due process rights. He also contends that the State’s interpretation of section 321J.2(3)(a)(l) renders this section void for vagueness. We find these arguments unpersuasive.

The defendant suggests that using the third digit is imprecise. He argues that if our court allows the use of the third digit, this obviates the State’s burden, thus offending his right to due process. We disagree. First, nowhere in the manual does it state or even hint that the third digit is inaccurate. Second, section 321J.2(3)(a)(l) deals with sentencing, where the burden is no longer beyond a reasonable doubt. After guilt has been determined, evidence to support the sentence need only be proven by a preponderance of the evidence. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (“The standard of proof during the sentencing stage is lower than the standard used during trial.”); Rettinghaus, 591 N.W.2d at 17 (“Outcome determinative sentencing data need only be found to exist by a preponderance of the evidence.”). Even if the third digit may be somewhat less precise, because the burden is the lesser preponderance of the evidence standard, no due process violation occurs by allowing use of the third digit for sentencing. Rettin-ghaus, 591 N.W.2d at 16-17.

The defendant’s void for vagueness argument is similarly meritless because the statute is sufficiently definite to alert the ordinary citizen of its meaning. The average person knows or should know that .153 is greater than .15. As such, our interpretation has no constitutional impediments.

DECISION OF COURT OF APPEALS VACATED; WRIT SUSTAINED; CASE REMANDED FOR RESENTENCING.

All justices concur except NEUMAN, J., who takes no part.


author: VAITHESWARAN, Judge.

text:
    STATE of Iowa, Plaintiff-Appellant, v. Joel Lawrence FRIEND, Defendant-Appellee.
    No. 00-1027.
    Court of Appeals of Iowa.
    April 11, 2001.

      Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Victoria Siegel, County Attorney, and Mark Tremmel, Assistant County Attorney, for appellant.
    Robert E. Breckenridge of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellee.
    Heard by STREIT, P.J., and HECHT and VAITHESWARAN, JJ.
   VAITHESWARAN, Judge.

A grandfather traveled to Iowa with his young grandson. While here, the grandson and grandfather rode in a truck driven by Joel Friend, the child’s uncle. An officer stopped the truck for traffic violations, observed signs of intoxication in Friend, and arrested him for operating a motor vehicle while intoxicated. The State charged Friend with OWI and child endangerment. Iowa Code §§ 321J.2(l)(a), (2)(a); 726.6 (1999). Friend moved to dismiss the latter charge on the ground he was not a parent, guardian, or person having custody or control of the child as required by Iowa Code section 726.6. Because the facts were essentially undisputed, the district court treated the motion as a motion for adjudication of law points. The court struck the child endangerment charge from the trial information after concluding Friend did not fall within the class of persons who could be charged with the crime. We disagree with the court’s conclusion and, accordingly, reverse and remand.

I. Scope of Review

Our review of a ruling on a motion for adjudication of law points is for errors of law. State v. Maher, 618 N.W.2d 303, 305 (Iowa 2000).

II. Control Under Child Endangerment Statute

Iowa Code section 726.6 states in pertinent part:

A person who is the parent, guardian, or person having custody or control over a child or a minor under the age of eighteen with a mental or physical disability, commits child endangerment when the person does any of the following:
a. Knowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety.

The sole issue we must decide is whether Friend had “control” over his young passenger. We conclude he did.

Iowa Code chapter 726 does not define “control” or explain' what distinguishes “control” from “custody.” However, the Iowa Supreme Court has provided guidance in construing both terms. In State v. Johnson, 528 N.W.2d 638 (Iowa 1995), the court was asked to decide the meaning of “custody” in Iowa Code section 726.3, a related provision addressing harm to children or other dependent persons. Johnson, 528 N.W.2d at 640. The court stated “legal custody” was a narrower term than “custody,” which, in turn, was narrower than “control.” Id. Comparing section 726.3 to 726.6, the court stated:

[A]n individual could have “control” over a child without also having ordinary custody of a child. “Control” only refers to the state of having restricting or governing power over someone, while “custody” implicates not only a power of oversight but also a responsibility for the care of an individual.

Id. at 641. Under this definition, a person need not have responsibility for a child to exert control over that child. Therefore, Iowa Code section 726.6 encompasses conduct by persons other than legal or ordinary custodians.

This conclusion is supported by the historical evolution of Iowa Code section 726.6. See Johnson, 528 N.W.2d at 641 (stating we may look to prior form of statute to discern legislative intent). Before 1985, the provision applied to “[a] person who is the parent or adoptive parent or any person having custody of any minor.” See Iowa Code § 726.6 (1983). In 1985, the legislature amended the provision to add the term “control.” Iowa Code § 726.6. By virtue of this amendment, the legislature expressed a clear legislative intent to extend the coverage of Iowa Code section 726.6.

Having concluded the reach of Iowa Code section 726.6 is broad, we further conclude the provision encompasses Friend’s act of driving the vehicle in which his young nephew was a passenger. Although Friend was not charged with overseeing his nephew’s welfare while in Iowa, he was in control of the truck immediately before the officer stopped it. Cf. Schwind v. Gibson, 220 Iowa 377, 385, 260 N.W. 853, 858 (1935) (stating negligence of driver could not be imputed to guest riding in car who has no control or right to control operation of car). Therefore, he was also in “control” of his nephew for purposes of Iowa Code section 726.6.

For these reasons, we reverse the district court’s ruling striking the child endangerment charge from the trial information and remand for- further proceedings.

REVERSED AND REMANDED.

      . The parties agree that Friend was not the parent, guardian, or person having legal or ordinary custody over the child. The parties also agree in principle that, under the holding of State v. Caskey, 539 N.W.2d 176, 177 (Iowa 1995), certain intoxicated persons who drive a car containing children would be guilty of child endangerment. Cf. State v. Cruz, 152 Misc.2d 436, 576 N.Y.S.2d 978, 981 (1991) (noting "it takes little imagination” to recognize harm to children implicit in driving them while intoxicated).

      . The 2001 Code, not applicable here, amends Iowa Code section 726.6 to define "person having control over a child or a minor” in part as a "person who operates a motor vehicle with a child or such a minor present in the vehicle.” This provision answers for future cases the precise issue facing us here. See S.F. 63, 79th Gen. Assem., (Ia.2001).


author: SACKETT, Chief Judge.

text:
    Robert CONNOR, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
    No. 00-0293.
    Court of Appeals of Iowa.
    May 9, 2001.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Raines, Assistant County Attorney, for appellee.
    Heard by SACKETT, C.J., and HUITINK and ZIMMER, JJ.
   SACKETT, Chief Judge.

Applicant-Appellant Robert Connor appeals following the district court’s denial of his claim for postconviction relief. Connor contends his right to counsel was violated when the district court failed to make inquiry after Connor contended his attorney had a conflict of interest because (1) the attorney filed a motion claiming Connor’s petition for postconviction relief was frivolous before any evidentiary hearing was held, and (2) Connor had filed an ethics complaint against the attorney. We reverse and remand.

Connor pled guilty to two counts of third-degree sexual abuse, one count of second-degree kidnapping and one count of gang participation and was sentenced. Connor filed an application for postconviction relief challenging the conviction, and the matter was set for hearing. The attorney representing Connor in the postconviction proceedings, Thomas Preacher, moved to withdraw as Connor’s attorney, contending Connor’s application was frivolous. Connor advised the district court he had filed an ethics complaint against Preacher. Connor contended that because of the complaint Preacher had a conflict and requested the matter be continued and a new attorney be appointed for him. The district court denied Connor’s motions as well as Preacher’s motion to withdraw. The district court received arguments and ruled that appellant had been well represented by Preacher, and that Preacher had fulfilled his responsibility to review the proceedings against Connor. Connor’s claim for relief was denied.

Connor contends the district court denied him his right to counsel by failing to inquire into Preacher’s conflict of interest. Connor argues that he was entitled to have the court make an inquiry to determine whether Preacher had a conflict of interest, and because the district court failed to do so, the district court did not have all the facts before making a ruling.

The State recognizes that when a conflict of interest is brought to a trial judge in a criminal proceeding, the judge is required to inquire into the possible conflict. See Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333, 345 (1980). The State advances, however, that Connor is not entitled to relief because the Sixth Amendment right to counsel under the federal Constitution does not apply in a state postconviction collateral attack on a criminal conviction. We agree with the State that the Sixth Amendment right to counsel does not apply to a postconviction procedure. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640, 671 (1991)

However, the Iowa legislature has seen fit to provide counsel for postconviction applicants. Iowa Code section 822.5 provides:

... unless the applicant is confined in a state institution and is seeking relief [under section 822.2(5) or (6) ] the costs and expenses of legal representation shall ... be made available to the applicant in the preparation of the application, in the trial court, and on review if applicant is unable to pay.

In Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994) the State argued, as the State does here, that Dunbar was not constitutionally entitled to the assistance of counsel in postconviction relief proceedings and consequently could not challenge the denial of his application for postconviction relief by claiming ineffective assistance of postconviction relief counsel. In Dunbar the Iowa court rejected the State’s argument in its holding that the Coleman case did not affect Dunbar’s ability to claim ineffective assistance of posteonviction relief counsel because such a claim was not constitutionally based in Iowa. Id.; see also Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988) (court held no “state or federal constitutional grounds” for counsel in postconviction relief proceedings). In Dunbar, the court noted that the Iowa Code gave the district court discretion to appoint postconviction counsel. Dunbar, 515 N.W.2d at 14. The court reasoned that the right to counsel “necessarily implies that counsel be effective.” Id. Consequently once counsel is appointed in a postconviction proceeding the petitioner has a right to the effective assistance of this counsel. Id.; see also Patchette v. State, 874 N.W.2d 397, 398 (Iowa 1985).

Representation is presumed competent and a defendant has the burden to prove by a preponderance of the evidence that counsel was ineffective. Dunbar, 515 N.W.2d at 15. It is reasonable to assume that effective assistance requires that counsel be free from any conflict of interest.

This case requires a two-part analysis: we address 1) whether the Dunbar right to effective counsel in a postcon-viction proceeding also requires, as it does on direct appeal, that upon request by the defendant, the trial court determine post-conviction counsel to be conflict-free; and 2) whether we should expect the trial court to proceed in the same manner it would if the defendant were making a constitutional claim. We answer both questions in the affirmative.

When a defendant makes a timely objection, the trial court in a Sixth Amendment challenge has an obligation to conduct an adequate inquiry to determine whether an actual conflict exists. See Atley v. Ault, 191 F.3d 865, 870 (8th Cir. 1999). If a trial court fails to discharge this duty, prejudice is presumed. See id. The failure of the trial court to make an inquiry into the factual basis of the conflict is not excused because the trial court was aware of possible conflicts. Id. at 871, 191 F.3d 865. Nor is it excused because of the possibility that the conflict is remote. See id. at 872, 191 F.3d 865. Nor does a court’s concern that a defendant is engaging in dilatory practice excuse its responsibility to inquire. See id. at 873, 191 F.3d 865. The district court erred in failing to inquire into the alleged conflict.

Secondly, when a defendant makes a timely objection, Dunbar would appear to instruct that Connor has the same rights he would have if this were a constitutional challenge. A claim an attorney has a conflict of interest is a burden to effective assistance of counsel. See Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426, 437-438 (1978); Atley, 191 F.3d at 870.

The record shows Connor filed an ethics complaint against Preacher and that he attempted to relate the facts of the complaint to the district court but was denied the opportunity to do so. The State argues that the specific ethics claim Connor made does not appear on the record and that Connor’s allegations are vague. But nowhere in the record can we find even the facts upon which the complaint was lodged. The district court erred in failing to inquire into the alleged conflict. We reverse and remand to the district court with instructions to make the required inquiry and to rule accordingly. We do not suggest what that ruling should be.

REVERSED AND REMANDED.

      . The court in Dunbar referred to Iowa Code section 633A.5 which chapter was transferred to 822 in 1993.


author: TOUSSAINT, Chief Judge

text:
    Linda HOLMSTROM, as Trustee for the Estate of Bradley Scott Holmstrom, Deceased, Plaintiff, v. ILLINOIS FARMERS INSURANCE COMPANY, an Illinois corporation, licensed to do business in the State of Minnesota, Respondent, and Viking Insurance Company of Wisconsin, Appellant.
    No. C4-01-78.
    Court of Appeals of Minnesota.
    July 10, 2001.

      Robert William Roe, Maplewood, (for plaintiff).
    Burke Jerome Ellingson, Brendel and Zinn, Ltd., St. Paul, (for respondent Illinois Farmers Insurance Co.).
    David H. Oskie, Walter G. Bauch, Oskie & Bauch, P.A., St. Paul, (for appellant Viking Insurance Company of Wisconsin).
    Considered and decided by RANDALL, Presiding Judge, TOUSSAINT, Chief Judge, and ANDERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge

Appellant Viking Insurance Company challenges summary judgment in favor of respondent Illinois Farmers Insurance Company, arguing the district court erred in applying the closeness to the risk analysis to excess underinsured motorist coverage sought where the injured person was not an occupant of a motor vehicle or motorcycle. Because Minn.Stat. § 65B.49, subd. 3a(5) (2000), specifically allows injured pedestrians seeking excess underin-sured motorist coverage to select any limit afforded by a policy under which they are insured, we reverse.

FACTS

On August 30, 1997, a motorist struck and killed Bradley Scott Holmstrom as he, walked along Highway 36 in Stillwater. At the time of the accident, Holmstrom resided at his parents’ home and was insured as a resident family member under his father’s automobile insurance policy with respondent Illinois Farmers Insurance Company (Farmers). In addition, Holmstrom owned his own car and was a named insured on a policy issued by appellant Viking Insurance Company (Viking). The Farmers policy had underinsured motorist (UIM) limits of $100,000, and the Viking policy had UIM limits of $30,000.

After respondent Linda Holmstrom, as trustee for the estate, settled with the driver’s insurance company, she sought excess UIM coverage under the Farmers policy. Farmers moved for summary judgment, arguing that the “closeness to the risk” analysis required the estate to seek excess UIM coverage under the Viking policy alone. The district court agreed and granted summary judgment for Farmers. Viking appeals.

ISSUE

Does “closeness to the risk” analysis apply to selection of excess UIM coverage where the injured person was not occupying a motor vehicle or motorcycle at the time of the accident?

ANALYSIS

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The interpretation of a statute and the interpretation of insurance policies are questions of law that this court reviews de novo. Nathe Bros., Inc. v. American National Fire Ins. Co., 615 N.W.2d 341, 344 (Minn.2000).

“The relevant guide when underinsured motorist coverage is imposed by operation of law is the language of the No Fault Act.” Osterdyke v. State Farm Mut. Auto. Ins. Co., 420 N.W.2d 900, 903 (Minn.1988). Minn.Stat. § 65B.49, subd. 3a(5) (2000) provides for excess UIM coverage as follows:

If at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and unclerinsured motorist coverages available to the injured person is the limit specified for that motor vehicle. However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured. The excess insurance protection is limited to the extent of covered damages sustained, and further is available only to the extent by which the limit of liability for like coverage applicable to any one motor vehicle listed on the automobile insurance policy of which the insured person is an insured exceeds the limit of liability of the coverage available to the injured person from the occupied motor vehicle.
If at the time of the accident the injured person is not occupying a motor vehicle or motorcycle, the injured person is entitled to select any one limit of liability for any one vehicle afforded by a policy under which the injured person is insured.

Id.

“In separate paragraphs, this statute first states the uninsured/underinsured entitlements of those who occupy a motor vehicle and then declares the benefits for those, such as pedestrians, who do not.”

Northrup v. State Farm Mut. Auto. Ins. Co., 601 N.W.2d 900 (Minn.App.1999), review denied (Minn. Jan. 25, 2000). The first paragraph governs injuries to those occupying a vehicle, and allows the injured person who is not the named insured, or the spouse, minor, or resident relative of the named insured on the policy of the occupied vehicle to seek excess UIM coverage from another insurance policy. See Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7, 10-12 (Minn.2000). The second paragraph governs injuries to those not occupying a vehicle and indicates the injured person may select any one limit afforded by a policy under which the person is insured. Cf. Continental Cas. Ins. Co. v. Teachers Ins. Co., 532 N.W.2d 275, 277 (Minn.App.1995) (holding that where injured pedestrian selects UIM benefits from one of two separate insurers, selected insurer may receive contribution from unselected insurer), review denied (Minn. June 6, 1995).

The district court applied the “closeness to the risk” analysis to conclude that Holmstrom could only seek excess UIM coverage under the Viking policy. In Heinen v. Illinois Farmers Ins. Co., 566 N.W.2d 378, 381 (Minn.App.1997), we held that a child resident in his parents’ home, who is a named insured under his own automobile insurance policy and also an omnibus insured under his parents’ automobile policy, may recover UIM coverage only from the policy under which he is a named insured because the policy is closer to the risk. Here, the district court stated that “the Heinen decision is directly on point and nearly factually indistinguishable from the present case.”

There is one factual distinction, however, that is quite relevant. In Heinen, the injured person was an occupant of a motor vehicle. Here, the injured person was not an occupant of a motor vehicle. While the statute provides a priority of coverage when the injured person is an occupant of a vehicle, when the injured person is not an occupant of a vehicle the injured party may select any limit afforded by a policy under which they are insured. Minn.Stat. § 65B.49, subd. 3a(5). The statute reflects a clear legislative policy that injured pedestrians are entitled to greater latitude in selection of excess UIM coverage than injured occupants of motor vehicles. The first paragraph of subdivision 3a(5) establishes a priority of coverage for occupants of motor vehicles. But the second paragraph of subdivision 3a(5) specifically provides that injured pedestrians are entitled to select any limit afforded by a policy under which they are insured. Because the statute plainly allows the injured party to select a policy for excess UIM coverage, the closeness to the risk analysis does not apply.

Even if the closeness to the risk analysis were relevant, the district court ignored a threshold inquiry. The closeness to the risk doctrine applies when more than one insurance policy is potentially applicable, and the loss cannot be apportioned among the insurers without violating the “other-insurance” clause of at least one policy. Norton v. Tri-State Ins. Co., 590 N.W.2d 649, 654 (Minn.App.1999), review denied (Minn. May 26, 1999). “The closeness-to-the-risk doctrine is used only if a court first determines that the applicable policies’ other-insurance clauses conflict.” Id. (citation omitted). Here, the district court did not first find that the policies’ other-insurance clauses conflict. Indeed, it is unclear how the district court could have made any such finding as only one of the two policies was in the record before the court.

Finally, Farmers argues that Bradley Holmstrom was not an insured under the Farmers policy for purposes of section 65B.49, subd. 3a(5), resorting to the definition of insured found at Minn. Stat. § 65B.43, subd. 5 (2000). See Becker, 611 N.W.2d at 13 (applying statutory definition of insured to first paragraph of subdivision 3a(5)). But the Farmers policy here does not define insured in the same manner as the statute. Rather the policy provides that “[ijnsured person” means “you or any family member,” and “[fjamily member means a person related to you by blood, marriage or adoption who is a resident of your household, including ward or foster child.” Because an insurance policy is a contract, the extent of an insurer’s liability is generally governed by its terms so long as the policy does not omit coverage required by law. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998). By the Farmers’ policy’s terms, Holmstrom was an insured person.

DECISION

The district court erred in applying the closeness to the risk analysis to excess UIM coverage sought by an injured pedestrian. Under Minn.Stat. § 65B.49, subd. 3a(5) (2000), injured pedestrians seeking excess underinsured motorist coverage may select any limit afforded by a policy under which they are insured.

Reversed.