author: ZINTER, Justice.

text:
    2008 SD 28
    Ted E. DELKA, Plaintiff and Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant and Appellee, and Greentree Transportation Co., and Charlene Burd, Defendants.
    No. 24288.
    Supreme Court of South Dakota.
    Argued on April 25, 2007.
    Decided April 2, 2008.

      Sara Frankenstein, G. Verne Goodsell of Gunderson, Palmer, Goodsell & Nelson, L.L.P., W. Jason Groves of Groves Law Office Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Ronald J. Hall of Hall Law Firm, Aberdeen, South Dakota, Attorney for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Following an occupational disability, Ted E. Delka commenced this action against Greentree Transportation Company (Greentree); one of Greentree’s employees, Charlene Burd (Burd); and Continental Casualty Company (CCC). Delka pleaded nine causes of action arising out of his enrollment under Greentree’s group occupational accident insurance policy that Greentree had purchased from CCC for Greentree’s employees and independent contractors. The circuit court granted summary judgment dismissing CCC. Del-ka appeals. We affirm.

[¶ 2.] In 1999, Delka, a trucker residing in South Dakota, began working as an independent contractor for Greentree, a Pennsylvania company. Greentree required its independent contractors to have workers’ compensation insurance or occupational accident insurance (OAI) as a condition of employment. Burd advised Del-ka that group OAI was available through Greentree, and allegedly stated that it was “just like” workers’ compensation insurance. Delka did not have either type of insurance, and he enrolled under Green-tree’s group OAI policy with CCC. Upon enrollment, Delka received an insurance card, but alleges that he received no other information about the policy.

[¶ 3.] CCC is in the business of providing OAI. CCC employed Ameriplan Benefit Corporation (Ameriplan) as CCC’s underwriting manager. Greentree had applied to CCC for a group OAI policy. Southern States Insurance Agency (Southern States) acted as Greentree’s insurance agent or broker in the transaction. CCC issued the group policy to Greentree as the policyholder. Greentree purchased and received delivery of the policy in Pennsylvania. Therefore, the parties agree that Pennsylvania law governs the relationship between CCC as the insurer, Greentree as the policyholder, and Delka as an insured under the group policy. The parties further agree that, pursuant to their employment agreement, Pennsylvania law governs the relationship between Greentree and Delka.

[¶ 4.] Greentree’s contract of insurance with CCC required Greentree, not Delka, to pay the monthly premiums for the OAI. The premium was based upon the total number of independent contractors covered each month. Greentree’s cost of insurance for Delka was $92 per month. Greentree, however, deducted $125 per month from Delka’s checks, which was $38 per month (a total of $396) more than Greentree’s cost of OAI during the time Delka was employed. Allegedly, $18 of the monthly excess was deducted for a “contingent liability policy” that covered Greentree, and $15 was deducted for “Greentree’s losses” on independent contractor insurance. Delka contends that he had no knowledge of these additional premium deductions and alleges that he was being overcharged.

[¶ 5.] In 2000, Delka was involved in a work-related accident that rendered him unemployable. After his accident, Delka had his first contact with CCC: Delka received copies of his application and CCC’s policy. CCC subsequently paid Delka all disability and medical benefits afforded under Greentree’s OAI policy. Although there is no dispute that CCC fully complied with the terms of the group policy, the policy benefits were limited to five years, and Delka alleges that he is permanently disabled and will need further medical care for the rest of his life. Delka therefore contends that the OAI is insufficient to cover his disability and that Greentree and CCC are liable for misleading him in believing that OAI was just like workers’ compensation insurance.

[¶ 6.] Delka brought this suit on causes of action alleging deceit, bad faith, violation of South Dakota’s Unfair Trade Practices Act, violation of Pennsylvania’s Unfair Insurance Practices Act, negligent misrepresentation, breach of fiduciary duty, conversion, fraud and concealment, and negligence. The gravamen of all claims is that the OAI was misrepresented as being “just like” workers’ compensation insurance and Delka was overcharged. With respect to CCC and vicarious liability, Delka alleges that Greentree was CCC’s agent in the group insurance transactions and therefore, CCC is vicariously liable for Greentree’s acts and omissions. With respect to direct liability, Delka alleges that CCC misrepresented certain facts to Delka, had knowledge of overcharging for OAI, and breached duties it owed to Delka arising from obligations independent of the group insurance contract.

[¶ 7.] The circuit court granted summary judgment dismissing CCC on all claims. With respect to vicarious liability, the circuit court concluded that Greentree and Burd could not, as a matter of Pennsylvania law, be deemed CCC’s agents in enrollment and premium transactions involving group insurance. With respect to direct liability, the circuit court observed that Delka failed to assert that CCC made any representations to Delka prior to his accident. The court also concluded that CCC owed Delka no duty independent of its obligations under the group insurance contract.

[¶ 8.] Delka appeals raising the following issues:

1. Whether Greentree was CCC’s agent in the OAI group insurance transactions.
2. Whether CCC made misrepresentations or owed any duties to Delka independent of CCC’s obligations under the policy.

We review these issues under our familiar standard of review:

Summary judgment is authorized if 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 that the moving party is entitled to judgment as a matter of law. We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Summary judgment will be affirmed if there exists any basis which would support the trial court’s ruling.

Schwaiger v. Avera Queen of Peace Health Serv., 2006 SD 44, ¶7, 714 N.W.2d 874,

Agency

[¶ 9.] Delka contends that Green-tree acted as CCC’s agent in the marketing and servicing of the group insurance and therefore CCC is vicariously liable for Greentree’s alleged overcharging and misrepresentations. Pennsylvania’s law on agency with regard to group insurance is well settled. The United States Supreme Court, applying Pennsylvania law, concluded:

When procuring [a group] policy, obtaining applications of employees, taking payroll deduction orders, reporting changes in the insured group, paying premiums, and, generally, in doing whatever may serve to obtain and keep the insurance in force, employers [such as Greentree] act not as agents of the insurer [such as CCC], but for their employees [such as Delka] or for themselves.

Boseman v. Connecticut Gen. Life Ins. Co., 301 U.S. 196, 204-05, 57 S.Ct. 686, 690, 81 L.Ed. 1036 (1937) (citations omitted). The state and federal courts of Pennsylvania have also concluded that employers are not the agent of the insurer in group insurance transactions. See Henning v. Metro. Life Ins. Co., 546 F.Supp. 442, 446 (M.D.Pa.1982); Aetna Life Ins. Co. v. Messier, 173 F.Supp. 90, 96 (M.D.Pa.1959); Layman v. Cont’l Assur. Co., 416 Pa. 155, 160, 205 A.2d 93, 95-96 (1964); Hanaieff v. Equitable Life Assur. Soc. of U.S., 371 Pa. 560, 564, 92 A.2d 202, 204 (1952); McFadden v. Equitable Life Assur. Soc., 351 Pa. 570, 575, 41 A.2d 624, 626 (1945); Smith v. CNA Ins., 319 Pa.Super. 449, 462, 466 A.2d 629 n. 9, 466 A.2d 629, 636 n. 9 (1983).

[¶ 10.] In Hanaieff, the Pennsylvania Supreme Court acknowledged the split of authority on this agency question; nevertheless, it adopted the majority view holding that the employer acts as the agent of the employee, not the insurer:

[W]hile it is true that there is a diversity of opinion among the several jurisdictions as to whether, in the case of such group insurance policies, the employer occupies the role of agent of the employees or of the insurer, in our own State, as in the Supreme Court of the United States, this question has been definitely resolved against plaintiffs contention.

371 Pa. at 564, 92 A.2d at 204. In Aetna Life the federal district court explained that the purpose of group insurance was to supply low-cost insurance for the protection of employees, and:

In procuring such [group] insurance, obtaining applications, taking payroll deductions, and paying premiums, the employer acts as agent for the employees and for themselves ... thus rendering their employees a service and promoting industrial goodwill.

173 F.Supp. at 96 (citations omitted). Therefore, under Pennsylvania law, Greentree, the employer/policyholder of the group insurance policy, was not the agent of CCC in the group insurance transactions involving Delka.

[¶ 11.] Delka, however, citing 1994 Pennsylvania insurance regulations, argues that because Greentree explained coverage, enrolled applicants, collected premiums, and was responsible for the delivery of certificates of insurance, we should recognize Greentree as CCC’s agent. See 31 Pa.Code §§ 37.1, 37.11, 37.17 (defining these types of activities as those that are performed by an agent). Although we may assume without deciding that Green-tree’s insurance activities could have fallen within these regulatory definitions, Delka still may not prevail because the authority for the regulations has been repealed. The “purpose of [those regulations was] to implement sections 601-639 of the act (40 [Pa. Cons.Stat.] §§ 231-279), by setting forth requirements and standards for the operation of a single licensing system for insurance agents and brokers in [Pennsylvania].” 31 Pa.Code § 37.2. The relevant enabling statutes (40 Pa. Cons.Stat. §§ 231-240, 251-282) for those regulations were, however, repealed. See 40 Pa. Cons.Stat. §§ 281-240, 251-282 (repealed by Dec. 6, 2002 P.L. 1183, No. 147 § 1) (repealing statutes which defined the broker/agent distinction). Moreover, under the replacement statutes, the prior licensing definitions of “agents” and “brokers” were abandoned in favor of a single category called “insurance producers.” See 40 Pa. Cons.Stat. §§ 310.1-310.14. And, under this superseding statutory definition of “insurance producers,” the types of group insurance activities upon which Delka relies are excluded from the definition of insurance producer. See 40 Pa. Cons.Stat. § 310.3(b).

[¶ 12.] We finally note that, notwithstanding Delka’s administrative regulation argument, the two post-1994 Pennsylvania decisions on this issue continue to follow the rule that there is no agency relationship between employers that provide group insurance benefits and the insurers that sell the policies to the employers. See Schurich v. Principal Fin. Group, No. Civ.A. 304CV2074, 2005 WL 1154490, at *4 (M.D.Pa.2005) (holding that employer does not act as insurer’s agent with respect to group insurance); McBride v. Hartford Life & Accident Ins. Co., Civ. No. 05-6172, 2007 U.S. Dist. LEXIS 169171, at *3 (E.D.Pa. Jan. 29, 2007) (same). We therefore conclude that, under Pennsylvania law involving group insurance policies, Green-tree was not CCC’s agent and CCC cannot be vicariously liable for Greentree’s alleged acts and omissions related to the group OAI transactions.

Direct Liability

Negligence and Bad Faith

[¶ 13.] Greentree purchased and was the policyholder of the OAI policy. CCC and Delka had no relationship until Delka’s enrollment under Greentree’s policy. CCC and Delka also had no communications until after Delka’s accident, at which time CCC provided the policy information and paid all benefits required by the contract. Because CCC fully performed its contractual obligations, there was no contractual duty running from CCC to Delka that would support Delka’s claim for negligence or bad faith.

[¶ 14.] Delka, however, argues that CCC is directly hable on duties independent of CCC’s obligations under the insurance contract. Delka contends that duties may be premised upon two experts who opined that CCC breached the duties of good faith and insurance standards of care in its marketing of the group insurance. Those experts opined that CCC had a duty to ensure that Greentree marketed the OAI with properly trained and licensed insurance agents, who would “assure [that CCC’s] insureds understood what their policy provide[d] and at what cost.” With two exceptions that we do address below, Delka has not cited Pennsylvania law requiring a duty under these theories. Because both parties rely primarily on South Dakota law establishing the existence of a duty, we generally limit our review to those authorities.

[¶ 15.] Delka points out that we have recognized that a duty may arise independent of a contract.

“[L]egal duty ... may spring from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud.”

Smith v. Weber, 70 S.D. 232, 236, 16 N.W.2d 537, 539 (1944) (quoting Rich v. New York Cent. H.R.R.R. Co., 87 N.Y. 382 (N.Y. 1882)). “Whether a duty exists is a question of law, fully reviewable by this Court on appeal.” Fisher Sand & Gravel Co. v. State, 1997 SD 8, ¶ 12, 558 N.W.2d 864, 867 (citing Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995)).

[¶ 16.] We have recognized that a professional duty may exist in the context of providing insurance services. See Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 227, 229-30 (S.D.1994) (acknowledging liability, but finding no factual basis for liability in that case). In considering whether a duty exists to provide professional services in a manner that does not cause economic damages to foreseeable third parties, this Court has not required privity of contract. Mid-Westem Elec., Inc. v. DeWild Grant Reckert & Assoc. Co., 500 N.W.2d 250, 254 (S.D.1993). The question is generally one of foreseeability. Maguire Ins., 518 N.W.2d at 229-30. Ultimately, the “duty arises either by legislation or by the common law, through the ever-changing movement of social, political, and economic forces.” Fisher v. Kahler, 2002 SD 30, ¶ 6, 641 N.W.2d 122, 125.

[¶ 17.] With respect to negligence before Delka was enrolled and had any relationship with CCC, Delka relies on his experts’ opinions that CCC failed to follow industry standards. As previously noted, those experts opined that CCC had a legal duty to market its insurance to Delka through trained, licensed insurance agents that would have provided correct information. As discussed above, however, Pennsylvania law explicitly exempts persons such as Burd (therefore Greentree) from insurance agent licensure. 40 Pa. Cons. Stat. § 810.3(b); supra ¶ 11 n. 6. Moreover, even if that statute did not apply, under Pennsylvania law, CCC’s duty was limited to furnishing Greentree with policy certificates/summaries: Greentree owed Delka any remaining duties. See 40 Pa. Cons.Stat. § 756.2(b)(2), infra ¶¶ 24-25. See also 1A Lee R. Russ et al., Couch on Insurance 3D § 8.10 (Clark Broadman Callaghan 1995) (citing Pennsylvania as a state that follows “venerable authority” requiring the employer to administer many of the “various acts required to make effective a policy of group insurance covering employees, such as obtaining the employees’ applications, taking payroll deductions orders, reporting changes in the insured group, paying premiums and the like”). Thus, we have been directed to nothing in the statutes or common law of Pennsylvania imposing upon CCC a pre-enrollment duty to potential employees/en-rollees such as Delka that would support Delka’s claim of negligence.

[¶ 18.] Delka has also directed us to no Pennsylvania statute or case indicating that after the contractual relationship was established by enrollment, CCC owed Delka any independent duty apart from the contract. We therefore look to our decision in Fisher Sand & Gravel Co., 1997 SD 8, 558 N.W.2d 864. In Fisher, this Court considered a situation where the relationship between the parties involved a contract and the plaintiff argued that failure to follow industry standards could also create a duty independent of that contract. Fisher acknowledged Delka’s above quoted independent duty language from Smith. See supra ¶ 15. Nevertheless, this Court concluded that when a contract exists and is not breached, no action in tort arising out of that relationship will lie. “[W]hen ‘the duties or obligations of the parties are contractual rather than fiduciary ... a breach of those express or implied duties can give rise only to a cause of action in contract, not one in tort.’ ” Fisher, 1997 SD 8, ¶ 18, 558 N.W.2d at 869 (quoting Beck v. Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985)). Although this Court has acknowledged exceptions to this general rule (involving first party insurance relationships), CCC satisfied all of its contractual duties to Delka, and Delka has not shown that any of the recognized exceptions apply. Therefore, the circuit court correctly applied the rule that “[i]f one in good faith fully complied with the contract, one cannot be held liable for actions arising out of the contract under a theory of negligence.” Id. ¶ 19, 558 N.W.2d at 869.

[¶ 19.] Delka has also failed to establish an independent duty giving rise to a cause of action for bad faith. Delka’s factual allegation for this theory is the “suggestion or assertion of a fact” that the OAI policy was equivalent to workers’ compensation insurance and that CCC was “intentionally suppressing facts” concerning the policy. There is no dispute, however, that CCC and Delka had no communications prior to Delka’s enrollment with Greentree. Therefore, CCC could not have misrepresented or suppressed facts that led to Delka’s decision to enroll in OAI rather than workers’ compensation insurance, and CCC cannot be liable on this theory.

[¶ 20.] Moreover, even if there were disputed issues of material fact concerning CCC’s representations to Delka regarding coverage or premiums, there is no common law cause of action under Pennsylvania law for such bad faith conduct on the part of insurers. D’Ambrosio v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 494 Pa. 501, 507, 431 A.2d 966, 970 (1981). Instead, insureds are relegated to Pennsylvania’s statutory remedy. See 42 Pa. Cons.Stat. § 8371 (statutory bad faith).

[¶ 21.] Delka did not, however, plead a cause of action under 42 Pa. Cons.Stat. § 8371. In Delka’s third amended complaint, he claimed that CCC violated the Pennsylvania Unfair Insurance Practices Act (UIPA).

[¶ 22.] Although Delka alleged violations of the UIPA, he has no cause of action under that act. The UIPA and the statutory bad faith statute (Section 8371) are independent acts providing different remedies. Furthermore, private persons cannot utilize the UIPA; it may only be enforced by the Insurance Commissioner of Pennsylvania. Smith v. Nationwide Mut. Fire Ins. Co., 935 F.Supp. 616, 620 (W.D.Pa.1996) (stating that “it is clear that there is no private cause of action under the UIPA”) (citations omitted); D'Ambrosio, 494 Pa. at 507, 431 A.2d at 969-70 (stating that the Insurance Commissioner of Pennsylvania is empowered to enforce the UIPA); Romano v. Nationwide Mut. Fire Ins. Co., 435 Pa.Super. 545, 552, 646 A.2d 1228, 1232 (1994) (stating: “It is clear that the UIPA and the Department of Insurance Regulations can only be enforced by the State Insurance Commissioner and not by way of private action.”).

[¶ 23.] On the other hand, the statutory bad faith legislation (Section 8371) specifically creates a cause of action for private persons. See Romano, 435 Pa.Super. at 551, 646 A.2d at 1231 (noting that the Supreme Court’s refusal to create a common law bad faith remedy led to the Legislature developing a statutory bad faith remedy, 42 Pa. Cons.Stat. § 8371). Although it has been stated that violations of UIPA may be used as evidence for a bad faith claim, the UIPA itself provides no private remedy without Pennsylvania’s bad faith statute (Section 8371). Romano, 435 Pa.Super. 545, 646 A.2d 1228 (holding that an insured may reference violations of UIPA to illustrate the bad faith claim). But see Parasco v. Pac. Indem. Co., 920 F.Supp. 647, 655 (E.D.Pa.1996) (explaining violations of the UIPA did not establish statutory bad faith per se). Ultimately, Delka did not bring his bad faith claim under his exclusive statutory remedy, nor has he cited other authority supporting an independent bad faith duty arising under the facts alleged in this case. Therefore, Delka’s bad faith claim fails.

[¶ 24.] Delka next contends that two statutory duties support negligence and bad faith. Delka first relies on SDCL 58-30-92. That statute prohibits the issuance of an insurance policy in this state through any person other than a licensed agent. The undisputed facts, however, reflect that the group policy was issued to Greentree through an agent (Southern States) in Pennsylvania. Moreover, the South Dakota Legislature could not have intended that the South Dakota statute on issuance of policies in this state applied to employees enrolling for group benefits with out-of-state employers. We finally observe that even if the statute applied to Delka’s enrollment, to interpret the statute in the manner Delka suggests would require all employers to employ insurance agents to provide its employees with any group insurance benefits. We do not read the statute to require such an absurd result.

[¶ 25.] Delka also argues that CCC breached a Pennsylvania statutory duty to deliver an individual certificate summarizing the insurance coverage. 40 Pa. Cons. Stat. § 756.2(b)(2) provides:

(b) Each group accident and sickness policy shall contain in substance the following provisions: ... (2) A provision that the insurer will furnish to the policyholder, for delivery to each employe[e] or member of the insured group, an individual certificate setting forth, in summary form, a statement of the essential features of the insurance coverage of such employe[e] or member and to whom benefits thereunder are payable. If dependents are included in the coverage, only one certificate need be issued for each family unit.

(Emphasis added.)

[¶ 26.] We note that this statute imposes two separate duties. First, the insurer (CCC) must “furnish” a certificate/summary to the “policyholder” (Greentree). Id. The statute separately requires that the “policyholder” (Greentree) must effect “delivery” of that certificate/summary on the “employe[e]” (Delka). Id. As is readily apparent, the statute does not impose any duty upon CCC to deliver the certificate/summary to Delka. That was Green-tree’s duty. Therefore, although this statute creates a duty for purposes of Delka’s claims against Greentree, the statute creates no duty for purposes of Delka’s claim against CCC.

[¶27.] Nevertheless, Delka contends there is a disputed issue of fact whether CCC furnished certificates/summaries to Greentree. Delka, however, failed to raise this issue to the circuit court. Delka’s arguments were limited to agency theories and direct liability with respect to overcharging. On appeal, Delka argues Burd’s deposition reflects that CCC may not have delivered summaries to Greentree. Delka did not, however, provide this portion of Burd’s deposition to the circuit court for its consideration. Therefore, this argument is waived.

[¶ 28.] Even if this argument were not waived, there is no material issue of disputed fact about the matter. Although Delka alleged that he never received a certificate/summary, that is not a material issue with respect to CCC because, as explained above, it was not CCC’s duty to deliver the certificate/summary to Delka. That was Greentree’s duty.

[¶ 29.] Finally, even if the issue were material, Delka failed to raise a factual dispute about the matter. CCC supported its Motion for Summary Judgment by submitting a Statement of Undisputed Facts, which specifically alleged in paragraph eight that:

CCC caused certificates to be prepared describing the benefits provided, to whom payable and the Group Policy limitations, and caused such certificates to be delivered to Greentree as Holder pursuant to the Group Policy provision. ...

Delka’s response did not, however, raise a disputed issue of fact about this assertion. Instead, Delka only generally asserted that he disputed paragraph eight. Delka responded:

Specifically, Delka disputes CCC’s “undisputed facts” as listed in CCC’s Statement of Undisputed Facts, ¶¶ 3, 8, 9, 22, 23, 27, 29, 30, 31, 34, 38, 39, 40, & 41.

This general response failed to raise a genuine issue of material fact as required by SDCL 15-6-56(e). “The party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.” McDowell v. Citicorp U.S.A., 2007 SD 53, ¶ 22, 734 N.W.2d 14, 21 (citations omitted); see also Himrich v. Carpenter, 1997 SD 116, ¶ 18, 569 N.W.2d 568, 573 (noting “[w]hen challenging a summary judgment, the non-moving party ‘must substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.’ ”) (citations omitted). Delka’s general objection to paragraph eight of CCC’s statement of facts is precisely the type of general allegation that Rule 56 prohibits. Therefore, Delka failed to raise a material issue of disputed fact concerning CCC’s duty to furnish summaries to Greentree, and the circuit court did not err in concluding that CCC violated no statutory duty. Delka’s remaining causes of action asserting direct liability are discussed below.

Deceit

[¶ 30.] Delka’s third amended complaint did not allege statutory deceit. The common-law tort involves a misrepresentation of fact. The tort requires:

[A] representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with the intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.

Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶ 24, 573 N.W.2d 493, 502 (citations omitted). It is undisputed, however, that CCC and Delka never communicated with each other prior to Delka’s accident. Therefore, CCC could not have misrepresented any fact relating to premiums or coverage that caused Delka to purchase the OAI.

[¶ 31.] In any event, Delka presented no evidence that CCC intended to deceive him. In fraud and deceit claims, “[s]ummary judgment is proper [when a plaintiff] produces no evidence of deceitful intent on [defendant’s] part....” Garrett v. BankWest, Inc., 459 N.W.2d 833, 847 (S.D.1990) (citation omitted). See also Roper v. Noel, 32 S.D. 405, 143 N.W. 130, 132 (1913) (stating that when “the connection of [defendant] with the fraud and deceit, if any, rests solely upon conjecture .... [A] case should not [even] be submitted to [a] jury.”) (citation omitted). It is Delka’s duty to assert facts suggesting CCC’s intent to deceive in both the trial and the summary judgment context. Because Delka did not identify any fact suggesting CCC’s intent to deceive, summary judgment was correctly granted.

Unfair Trade Practices

[¶ 32.] Delka contends that CCC breached duties it owed Delka under South Dakota’s Unfair Trade Practices Act, SDCL ch. 58-33. CCC sold and delivered the OAI policy to Greentree in Pennsylvania. Burd’s representations to Delka regarding the OAI policy took place over the phone, with Delka in South Dakota and Burd in Pennsylvania. Although the parties agree Pennsylvania law applies, Delka argues that CCC violated SDCL ch. 58-33 by making deceitful statements concerning coverage. Although Delka does not cite any particular statute in that chapter, SDCL 58-33-5 prohibits insurer misrepresentation concerning insurance coverage.

[¶ 33.] The alleged misrepresentations, however, only took place between Delka and Greentree through Burd, Greentree’s employee. Delka makes no claim of direct communications between Delka and CCC. Therefore, CCC cannot be directly liable for Delka’s claims of misrepresentation. Those claims are merely a restated version of the barred agency claims.

Fiduciary Duty, Conversion, Fraud and Concealment

[¶ 34.] A fair reading of Delka’s complaint reflects that he only alleged “defendant Greentree” breached fiduciary duties and committed conversion. No such allegation was made against CCC. Furthermore, Delka’s cause of action for fraud and concealment alleges the same factual and legal basis for the causes of action previously dismissed. Summary judgment was correctly entered on these remaining claims.

[¶ 35.] Affirmed.

[¶ 36.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Allegedly, another $35 was deducted for "bobtail deadhead” insurance, but the actual premium for that insurance was only $18. CCC did not provide the "bobtail deadhead” insurance: it was provided to Greentree by another company.

      . The circuit court noted that there was sufficient evidence at the summary judgment stage to conclude that CCC may or should have had knowledge that Greentree was charging more than its cost of insurance. The circuit court concluded, however, that absent an agency relationship, that knowledge was not material because CCC had no other duty to Delka other than CCC’s duties under the contract.

      . One treatise has observed that group insurance policies provide affordable insurance coverage to a pool of people through a common central entity, like an employer. 1A Lee R. Russ, et al., Couch on Insurance 3D § 7.1 (Clark Broadman Callaghan 1995). One of the reasons group policies remain an inexpensive source of insurance is because the employer performs much of the costly administrative process, presumably for the benefit of its employee. Id.

      . We also acknowledge the split of authority on this issue. Although Delka urges us to adopt the minority view applied in other jurisdictions, under the parties' choice of law agreement, we apply Pennsylvania law.

      . Even if the regulations were effective, the preexisting statutes, which provide authority for the regulations cited by Delka, applied to the requirements for licensure and certification rather than the agent's duty to potential enrollees of a group insurance policy. See 40 Pa. Cons.Stat. § 232 (repealed by Dec. 6, 2002 P.L. 1183, No. 147 § 1). See also 31 Pa.Code § 37.2 (stating the regulations "set[] forth requirements and standards for the operation of a single licensing system ”) (emphasis added); and 31 Pa.Code §§ 37.1-37.84 (setting forth state requirements and fees for certification and licensure of insurance agents and brokers).

      .Although the Pennsylvania Legislature did not repeal 40 Pa. Cons.Stat. §§ 241-246; those statutes govern "the termination of certain agency contracts in effect for more than four years." Faust Agency, Inc. v. Pennsylvania Ins. Dept., 734 A.2d 932, 933 n. 2 (Pa. Cmwlth.1999); see also Leach Agency, Inc. v.

        Foster, 133 Pa.Cmwlth. 425, 426, 576 A.2d 1156, 1156 (Pa.Cmwlth. 1990).

      . 40 Pa. Cons.Stat. § 310.3 provides in relevant part:
      (a) General rule. — Except as provided in subsection (b), a person shall not sell, solicit or negotiate a contract of insurance in this Commonwealth unless the person is licensed as an insurance producer for the line of authority under which the contract is issued.
      (b) Exceptions. — The following persons shall not be insurance producers for purposes of this act:

      (4) A person that does any of the following, provided no commission is paid for the services:
      (i)Secures and furnishes written information for the purpose of group life' insurance, group property and casualty insurance, group annuities, group or blanket accident and health insurance.
      (ii) Performs administrative services related to the enrollment of individuals under plans.
      (iii) Issues certificates under plans or otherwise assists in administering plans.
      (iv) Performs administrative services related to mass marketed property and casualty insurance.
      (v) Provides risk management services to a business entity.
      (vi) Performs administrative functions, provides clerical support or enrolls renters on behalf of the rental company which offers insurance coverages in connection with and incidental to the rental of motor vehicles.

      . Delka does assert a contractual duty to audit and examine Greentree’s records for overcharging employees. Delka also contends that, as CCC’s underwriting manager, Ameri-plan held itself out to provide marketing services, and those marketing services should have better informed Delka of the nature of OAI. Those contractual provisions, however, only gave CCC "the right to inspect and audit” and the right to use Ameriplan's other services. We do not view CCC’s rights under its contract with Ameriplan as inuring for the benefit of Delka. CCC's contractual rights were intended for the protection and benefit of CCC rather than potential enrollees like Delka.

      . Delka alleges that CCC breached a “public policy duty” in its dealings with Delka, including a public policy duty to inform insureds of the cost of the premium. Delka, however, only cites authority for the general proposition that duties may arise from public policy. He cites no authority supporting the proposition that there is a public policy duty on the part of a group insurer regarding its policyholder's marketing and premium collection practices relating to enrollees. Therefore, although we address the marketing and premium collection duties that are supported by authority, we do not address any amorphous public policy duty.

      . We parenthetically note that the certificates of insurance CCC furnished to Green-tree for delivery to enrollees stated in bold on the first page: "THIS IS NOT WORKERS’ COMPENSATION INSURANCE,” (emphasis in original), and the insurance identification cards stated above the space for the Driver’s Signature: "This Occupational Accident Plan is not a replacement for Workers’ compensation Insurance.” (Emphasis added).

      . Beck recognized that in some cases the acts constituting a breach of contract may also result in breaches of duty that are independent of the contract and may give rise to causes of action in tort. Beck, 701 P.2d at 801 n. 3. Some of those examples include intentional acts against an insured. Id. For example, failure to bargain in good faith, fraudulent activity, and certain conduct under unfair practice acts may result in tort liability independent from the concurrent contractual liability. Id. Such conduct is not at issue in this case or it is hereafter discussed.

      . Delka does point out that bad faith can also arise from a frivolous or unfounded refusal to investigate or communicate with the insured. See Frog, Switch Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742, 751, n. 9 (C.A.3, 1999). Although we agree with this proposition, Delka's reliance on Frog is misplaced. That case involved an insurer's failure to defend its insured. This case does not involve a first party insured's claim for failure to defend. Delka’s remaining authorities also involved conduct that is not relevant to Greentree's representations, marketing, and premium collection practices.

      . That statute provides:
      No authorized insurer may issue or cause to be issued any policy, duplicate policy, or insurance contract covering a subject of insurance that is resident, located or to be performed in this state through any person who is not licensed as an agent under this chapter. Violation of this section is a Class 2 misdemeanor.
      SDCL 58-30-92.

      . Delka relies on Bierly v. John Hancock Mutual Life Insurance Co., 13 Pa. D. & C.3d 40, 46 (Pa.Com.P1.1979), for the proposition that both the insurer and the policyholder had a duty to deliver a summary to Delka. Although Bierly confirms that both the insurer and the policyholder have duties under the statute, it reinforces that the statutory duties are separate and distinct: “[40 Pa. Cons.Stat. § 756.2(b)(2)] places a duty upon both the insurer to provide, and the policyholder to deliver, a summary of the group insurance plan's features to the employe[e].” Id. (emphasis added).

      . The dismissal of Delka's negligence and bad faith causes of action also disposes of Delka’s negligent misrepresentation claim.

      . The elements of statutory deceit require an affirmative misrepresentation or intentional suppression of facts. SDCL 20-10-2.

      . SDCL 58-33-5 provides:
      No person shall make, issue, circulate, or cause to be made, issued, or circulated, any estimate, circular, or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby or the dividends or share of the surplus to be received thereon, or make any false or misleading statement as to the dividends or share of surplus previously paid on similar policies, or make any misleading representation or any misrepresentation as to the financial condition of any insurer, or as to the legal reserve system upon which any life insurer operates, or use any name or title of any policy or class of policies misrepresenting the true nature thereof. Violation of this section is a Class 2 misdemeanor.

      . Delka’s brief also asserts direct liability on causes of action for "concealment, amongst others.” Because there is no direct liability argument and authority on concealment and other unidentified causes of action, we do not address them.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellant v. ATTORNEY DOE NO. 639, Appellee.
    No. 07-1866.
    Supreme Court of Iowa.
    April 18, 2008.
    Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for appellant.
    David L. Brown and Alex Wonio of Hansen, McClintock & Riley, Des Moines, for appellee.
   WIGGINS, Justice.

Attorney Doe No. 639 is an Iowa attorney who had an ethics complaint filed against him with the Iowa Supreme Court Attorney Disciplinary Board (Board). The Board is responsible for investigating ethics complaints made against attorneys licensed to practice law in Iowa. Iowa Ct. R. 34.8(1). After completing its investigation, the Board has the option to continue the matter, dismiss the ethics complaint, privately admonish the attorney, publicly reprimand the attorney, or file a formal complaint with the Grievance Commission of the Supreme Court of Iowa (Commission). Id. r. 34.11(l)-(5). After completing its investigation, the Board decided to file a formal complaint against Attorney Doe with the Commission.

The Commission is a separate entity from the Board. Id. r. 35.1(1). Our court has given the Commission the task of conducting a hearing on a formal complaint filed by the Board. Id. r. 35.1(2). The Board has the obligation to prosecute any complaint it files with the Commission. Id. r. 34.11(5). After conducting a hearing, the Commission may dismiss a formal complaint, privately admonish the attorney, or file a report with our court recommending the attorney be reprimanded or the attorney’s license be suspended or revoked. Id. r. 35.9. In the matter before us, the Commission found Attorney Doe’s conduct violated various provisions of the Iowa Code of Professional Conduct and issued Attorney Doe a private admonition.

When the Commission issues a private admonition, the Board can ask our court for permission to appeal the Commission’s disposition. Id. r. 35.11(2). To do so the Board must file an application seeking permission to appeal, and the application must be filed within ten days after the Commission files its disposition with the clerk of the supreme court. Id. We “may grant such appeal in a manner similar to the granting of interlocutory appeals in civil cases under the Iowa Rules of Appellate Procedure.” Id. If the Board fails to file an application seeking permission to appeal the disposition of the Commission within ten days after the Commission files its disposition, the Commission’s determination is final. Id. r. 35.9.

The Board decided to file an application requesting us to review the Commission’s decision to issue Attorney Doe a private admonition. Attorney Doe filed a resistance to the application and a motion to dismiss the Board’s application alleging the Board was one day late in filing its application; therefore, this court should not consider the application. The Board admitted it filed its application one day late due to its inadvertence, but resisted the motion to dismiss relying on our decisions in Committee on Professional Ethics & Conduct v. Michelson, 345 N.W.2d 112 (Iowa 1984), Committee on Professional Ethics & Conduct v. Behnke, 276 N.W.2d 838 (Iowa 1979), and Taylor v. Department of Transportation, 260 N.W.2d 521 (Iowa 1977). We granted the Board’s application for permission to appeal and ordered the parties to brief and submit the motion to dismiss with the appeal on the merits.

Relying on Michelson, Behnke, and Taylor, the Board contends the ten-day time limit to file an application for permission to appeal a disposition of the Commission is not a mandatory deadline and will not prevent this court from reviewing the Commission’s disposition unless Attorney Doe can show the delay was prejudicial. Attorney Doe contends the ten-day deadline is mandatory and the principles of law we applied in those cases do not apply to a late application filed under rule 35.11(2).

We have drawn a distinction between those statutes and rules that are mandatory and jurisdictional and those that are merely directory. See Taylor, 260 N.W.2d at 522. We have stated:

Mandatory and directory statutes each impose duties. The difference between them lies in the consequence for failure to perform the duty.... If the prescribed duty is essential to the main objective of the statute, the statute ordinarily is mandatory and a violation will invalidate subsequent proceedings under it. If the duty is not essential to accomplishing the principal purpose of the statute but is designed to assure order and promptness in the proceeding, the statute ordinarily is directory and a violation will not invalidate subsequent proceedings unless prejudice is shown.

Id. at 522-23.

‘Whether the statute [or rule] is mandatory or directory depends upon legislative intent. When statutes [or rules] do not resolve the issue expressly, statutory construction is necessary.” Id. at 522. Therefore, we look to the purpose of a rule when determining whether it is mandatory or directory.

In Taylor, the appellant sought a dismissal of a license revocation proceeding because the department failed to provide a hearing within the statutory period. Id. We held Iowa Code section 321B.8, which established the time limit in which a hearing must be set, was directory because the statute was passed to keep dangerous drivers off the road, and construing the statute as mandatory would undermine the legislative objective by providing a technical basis for avoiding license revocation. Id. at 523. We also held the violation of this directory statute did not prejudice Taylor because he was able to keep his license for a longer period of time than he otherwise would have had his hearing been held during the statutory time frame. Id. at 524.

We applied the same analysis in Michelson where the Commission failed to provide an attorney a hearing within thirty days from the date of service of the complaint as required by rule 118.7, currently rule 35.7. Michelson, 345 N.W.2d at 117. We held the rule was directory because the purpose of the time limit contained in the rule is to expedite disciplinary proceedings in order to protect both the public and the lawyer concerned. Id. Further, we found Michelson was not prejudiced by the delay; therefore, the failure of the Commission to comply with the deadline did not invalidate the proceedings. Id.

A similar approach was applied in Behnke, when the Commission failed to file its disposition within the time required by rule 118.9, currently rule 35.9. Behnke, 276 N.W.2d at 841-42. For the same reasons given in Michelson, we held the rule is directory, the delay did not prejudice Behnke, and the Commission’s failure to comply with the deadline did not invalidate the proceedings. Id. at 842.

Our opinions in Michelson, Behnke, and Taylor are distinguishable from the present case. In all three of these opinions, the matter being decided by the tribunal was properly before it. Additionally, the statutes and rules discussed in those opinions did not provide consequences for the tribunals’ failure to timely carry out their duties. Finally, the tribunals, not the parties invoking the jurisdiction of the tribunals, caused the delay in the proceedings.

The Board must file its application for permission to appeal within ten days from when the Commission files its disposition. Iowa Ct. R. 35.11(2). Here, a party, not the tribunal, caused the delay in proceedings by failing to meet this deadline. The rule states the consequence for failing to file an appeal within the required time is that the Commission’s decision becomes final. Id. r. 35.9. This language clearly evidences intent by this court to make the ten-day filing requirement mandatory, not directory. See Zick v. Haugh, 165 N.W.2d 836, 837 (Iowa 1969) (holding rule pertaining to time for taking an appeal to supreme court from an order, judgment, or decree of the lower court is mandatory and jurisdictional).

Once the ten-day period for seeking permission to appeal expired, the Commission’s private admonition of Attorney Doe became final. Accordingly, the Board’s untimely application was insufficient to allow this court to review the Commission’s action. Therefore, we grant Attorney Doe’s motion to dismiss the Board’s application.

APPEAL DISMISSED.

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

      . The identity of an attorney who receives a private admonition from the Commission is to remain confidential unless the supreme court, on review of the disposition of the Commission, decides to impose discipline. Iowa Ct. R. 35.11(3).


author: CADY, Justice. WIGGINS, Justice

text:
    STATE of Iowa, Appellee, v. Greagory Allen BEARSE, Appellant.
    No. 06-0916.
    Supreme Court of Iowa.
    April 18, 2008.

      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William E. Davis, County Attorney, and Joseph A. Grubisich and Robert Weinberg, Assistant County Attorneys, for appellee.
   CADY, Justice.

In this appeal from a guilty plea and sentencing for third-degree sexual abuse, we must decide whether trial counsel was ineffective in failing to object to an alleged breach of a plea agreement by the prosecutor. We conclude the prosecutor breached the plea agreement and counsel was ineffective in failing to object. We preserve the claim that defense counsel was ineffective for failing to file a motion in arrest of judgment to challenge the alleged involuntariness of the plea. We affirm the conviction, but vacate the sentence and remand for resentencing.

I. Background Facts and Proceedings.

Greagory Bearse was charged by trial information with the crime of sexual abuse in the third degree in violation of Iowa Code section 709.4(2)(c )(4) (2005). The State claimed Bearse engaged in a long-term sexual relationship with a fourteen-year-old girl. Bearse was thirty-seven years old at the time. The relationship was revealed after the girl became pregnant. Bearse’s attorney eventually negotiated a plea agreement with the State prior to trial. The agreement required Bearse to enter a plea of guilty to the charge and required the State to recommend against incarceration at the time of sentencing, “recognizing that the court may grant a deferred judgment or place the defendant on probation.” The plea agreement was formalized in writing.

Bearse subsequently entered a plea of guilty to sexual abuse in the third degree at a hearing before the district court. The district court was informed of the plea agreement at the hearing, and the plea colloquy revealed the sentencing court was not bound to follow the State’s sentencing recommendation. Following the hearing, the department of correctional services conducted a presentence investigation. The presentence investigation report ultimately recommended Bearse be incarcerated.

Bearse appeared for sentencing in district court with his attorney. The prosecuting attorney who appeared for the State was not the same prosecutor who had negotiated the plea agreement and had appeared for the State at the guilty-plea hearing.

During the course of the sentencing hearing, the court asked the State to make a sentencing recommendation. In response, the prosecutor stated “[t]he State concurs in the recommendation of the pre-sentence investigation report, your honor, for incarceration.” The court immediately informed the prosecutor that the recommendation by the State was inconsistent with the plea agreement. The prosecutor acknowledged the existence of some confusion based on the contents of his file. Yet, after the correct terms of the plea agreement were identified, the prosecutor merely said: “Your Honor, the court is not bound by the plea agreement. The State is, so we’ll ... abide by the plea agreement. The court has the presentence investigation report.” Counsel for Bearse did not object to the comments by the prosecutor.

At the conclusion of the sentencing hearing, the court sentenced Bearse to an indeterminate term of incarceration not to exceed ten years. The court detailed its reasons for imposing incarceration, which included the age difference between Bearse and the victim and an absence of remorse on the part of Bearse. The court did not mention the prosecutor’s recommendation as a sentencing factor. Additionally, Bearse was not sentenced to the special life sentence provided for in Iowa Code section 903B.1, and no mention of the special life sentence appears in the record.

Bearse appeals and asserts two claims of error. First, he makes a two-part argument that the prosecutor breached the plea agreement by failing to recommend against incarceration, and his trial counsel was ineffective by failing to object to the breach. Second, Bearse argues his trial counsel was ineffective for failing to file a motion in arrest of judgment after the court failed to inform him at the guilty-plea hearing of the special life sentence applicable to his case. Even though the district court failed to impose the special sentence, Bearse points out the provisions would be applicable to him in the event resentencing is required.

We transferred the case to the court of appeals. The court of appeals affirmed the judgment and sentence of the district court. It determined defense counsel was not ineffective because the prosecutor did not breach the plea agreement. The court of appeals found the record inadequate for consideration of Bearse’s second ineffective-assistance-of-counsel claim and preserved the issue for postconviction proceedings. We granted further review.

II. Standard of Review.

We review ineffective-assistance-of-counsel claims de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).

III. Discussion.

A. Breach of Plea Agreement.

1. Error preservation. Bearse concedes his trial attorney did not object during the sentencing hearing when the prosecutor allegedly breached the plea agreement. Consequently, he claims the failure to object amounts to ineffective assistance of counsel. We consider this claim on appeal. See State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).

2. Adequacy of record for review. Bearse argues his counsel was ineffective for failing to object to the prosecutor’s breach of the plea agreement. “If an ineffective assistance of counsel claim is raised on direct appeal from the criminal proceedings, the court may decide the record is adequate to decide the claim or may choose to preserve the claim for determination under chapter 822 [postconviction proceedings].” Iowa Code § 814.7(3). “Although claims of ineffective assistance of counsel are generally preserved for postconviction relief proceedings, we will consider such claims on direct appeal where the record is adequate.” Horness, 600 N.W.2d at 297. The record in this case clearly reflects the written plea agreement and the circumstances giving rise to Bearse’s claim that the prosecutor breached the agreement, as well as defense counsel’s response. As such, we find the record adequate to review Bearse’s first ineffective-assistance-of-counsel claim on direct appeal.

3. Failure to perform essential duty. A successful ineffective-assistance-of-counsel claim requires proof by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. at 298. In analyzing the first prong of the test, we presume counsel acted competently. Id. Counsel cannot fail to perform an essential duty by merely failing to make a meritless objection. Id. at 297. Consequently, to determine whether counsel faded to perform an essential duty in failing to object to the prosecutor’s recommendation, we must first determine whether the State breached the plea agreement. Id. If the State did not breach the plea agreement, defense counsel could not have been ineffective.

We begin our consideration of this question by recognizing the important role plea agreements play in our scheme of justice and the concomitant need for strict compliance with those agreements.

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971).

While proper use of plea agreements is essential to the efficient administration of justice, improper use of the agreements threatens the liberty of the criminally accused as well as “the honor of the government” and “public confidence in the fair administration of justice.” State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa 1974). Violations of plea agreements “adversely impact the integrity of the prose-cutorial office and the entire judicial system.” State v. King, 576 N.W.2d 369, 370 (Iowa 1998). Further, “‘[b]ecause a plea agreement requires a defendant to waive fundamental rights, we are compelled to hold prosecutors and courts to the most meticulous standards of both promise and performance.’ ” Harness, 600 N.W.2d at 298 (quoting State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185, 192 (1995)). For all those reasons, “ ‘violations of either the terms or the spirit of the agreement’ require reversal of the conviction or vacation of the sentence.” Id. (quoting Stubbs v. State, 114 Nev. 1412, 972 P.2d 843, 844 (1998)).

In this case, the prosecutor initially breached the plea agreement as the result of confusion or perhaps inattention. A prosecutor must take care to properly carry out all obligations and promises of the state in good faith. This duty requires each prosecutor who enters a courtroom on behalf of the state in every case to understand the state’s obligations under a plea bargain and to strictly comply with those obligations. “The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done.” Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. The prosecutor is not merely the representative of an ordinary party in a private controversy, “but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir.1978) (describing the role of the United States Attorney). As such, “our time-honored fair play norm and accepted professional standards” require strict compliance. Kuchenreuther, 218 N.W.2d at 624. Thus, inadvertence by a prosecutor will not excuse noncompliance.

A fundamental component of plea bargaining is the prosecutor’s obligation to comply with a promise to make a sentencing recommendation by doing more than “simply informing] the court of the promise the State has made to the defendant with respect to sentencing.” Horness, 600 N.W.2d at 299. The State must actually fulfill the promise. Where the State has promised to “recommend” a particular sentence, we have looked to the common definition of the word “recommend” and required

the prosecutor to present the recommended sentence[] with his or her approval, to commend the sentenee[] to the court, and to otherwise indicate to the court that the recommended sen-tenee[][is] supported by the State and worthy of the court’s acceptance.

Id. (citing Webster’s Third New International Dictionary 1897 (unabr. ed.1993) (defining “recommend” to mean (1) “to mention or introduce as being worthy of acceptance, use, or trial,” (2) “to make a commendatory statement about as being fit or worthy,” (3) “to bring forward as being fit or worthy,” (4) “present with approval,” (5) “indicate as being one’s choice for something or as otherwise having one’s approval or support,” (6) “offer or suggest as favored by oneself’)); see also United States v. Brown, 500 F.2d 375, 377 (4th Cir.1974) (requiring the prosecutor’s recommendation be “expressed with some degree of advocacy”).

The record in this case not only demonstrates noncompliance with the express terms of the plea agreement, but also with the spirit of the plea agreement. Despite the prosecutor’s initial confusion about the terms of the plea agreement, the applicable plea agreement clearly required the State to recommend against incarceration. Yet, even after the initial confusion was resolved and the prosecutor understood the terms of the agreement, he failed to comply with the obligation of the State to recommend that Bearse not be incarcerated. Instead, he merely indicated the State would “abide by the agreement,” but only after first telling the court it was “not bound by the plea agreement,” followed by a reminder that the court had “the presen-tence investigation report.” We have said “[t]he State’s promise to make a sentencing recommendation ... [carries] with it the implicit obligation to refrain from suggesting more severe sentencing alternatives.” Horness, 600 N.W.2d at 299 (recognizing the plea agreement “is of little value to the defendant” if the State is allowed to recommend alternative sentences); see also State v. Birge, 263 Neb. 77, 638 N.W.2d 529, 536 (2002) (finding breach of a plea agreement cannot be cured by prosecutor’s offer to withdraw improper remarks, even in case where district court affirmatively stated it was not influenced by the improper comments). Not only did the State in this case mistakenly recommend incarceration at the outset, but it clearly suggested incarceration should be imposed by referring to the presentence investigation report (which recommended incarceration) and reminding the court that it was not bound by the plea agreement. The State clearly breached the plea agreement by suggesting more severe punishment than it was obligated to recommend.

The argument by the State that it ultimately complied with the plea agreement ignores our previous jurisprudence requiring the prosecutor to do more than merely inform the court of the promise made by the State. Horness, 600 N.W.2d at 299. The agreement in this case required a recommendation against incarceration. The State’s initial recommendation of incarceration and subsequent agreement to “abide by the plea agreement” do not amount to a recommendation against incarceration. The prosecutor did not present the recommended sentence with his approval or commend a sentence to the court other than incarceration, such as probation. Consequently, the State failed to fulfill the promise under the plea agreement to recommend against incarceration.

Having found a breach of the plea agreement, we must next consider whether defense counsel failed to perform an essential duty by failing to object to the breach. We have previously held defense counsel has a duty to object to the breach of a plea agreement:

When the State breached the plea agreement, the defendant’s trial counsel clearly had a duty to object; only by objecting could counsel ensure that the defendant received the benefit of the agreement. Moreover, no possible advantage could flow to the defendant from counsel’s failure to point out the State’s noncompliance. Defense counsel’s failure in this regard simply cannot be attributed to improvident trial strategy or misguided tactics.

Id. at 300 (citations omitted). As such, defense counsel failed to perform an essential duty.

4. Prejudice. The ineffective-assistance-of-counsel claim by Bearse also requires that he demonstrate prejudice. In determining prejudice, we have rejected the standard that, “but for his counsel’s failure to object, he would have received a different sentence.” Id. (citing State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999)). Instead, “the defendant must simply show that the outcome of the [sentencing] proceeding would have been different.” Id. at 300-01 (citing Carrillo, 597 N.W.2d at 500). In Homess, we said:

The proper objection by the defendant’s attorney would have alerted the sentencing court to the prosecutor’s breach of the plea agreement. In that circumstance, the court would have allowed the defendant to withdraw his guilty plea[ ], or would have scheduled a new sentencing hearing at which time the prosecutor could make the promised recommendations. The outcome of the defendant’s sentencing proceeding was different, however, because defense counsel did not make the necessary objection. Consequently, the defendant was sentenced by the court at a hearing tainted by the prosecutor’s improper comments.

Id. at 300 (citations omitted).

The State asserts that the absence of an objection in this case did not result in prejudice at sentencing because the sentencing judge knew the State was obligated to recommend against incarceration, and the tactics employed by the prosecutor to imply the State nevertheless actually wanted the court to impose a sentence of incarceration had no impact on the sentencing decision of the court. The State points out the sentencing judge enumerated the factors upon which the ten-year indeterminate sentence was based, and the State’s recommendation of incarceration was not one of those. In Carrillo, we noted that

we have no way of knowing what sentence this judge would have imposed had the State [performed its obligation under the plea agreement], and we certainly will not speculate about the sentence a different judge would have imposed had [defendant’s] counsel objected and the case been set for resentencing.

597 N.W.2d at 501. We likewise refuse to engage is such speculation in this case. See Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (finding error and remanding even though sentencing court stated it would have given the same sentence had prosecutor fulfilled plea bargain); Birge, 638 N.W.2d at 536 (same). Moreover, the ability of the sentencing court to stand above the fray and overlook the conduct of the prosecutor cannot be used by the State to minimize the prejudice component of the analysis. Our system of justice requires more and does not allow prosecutors to make sentencing recommendations with a wink and a nod. The concept of justice has a far greater meaning.

Additionally, as in Homess, an objection by defense counsel leads to a procedure that alerts the court to correct the taint by allowing the defendant to withdraw the plea or by scheduling a new sentencing hearing with a prosecutor who will make the promised recommendation. 600 N.W.2d at 801. Thus, the outcome of the sentencing proceeding in this case would have been different if defense counsel would have objected. The sentencing hearing would have been rescheduled, or the plea of guilty would have been withdrawn. Consequently, Bearse has shown his counsel was ineffective.

5. Remedy. Having determined counsel was ineffective, we must decide what remedy is appropriate. Bearse asks us to vacate the conviction and allow him to plead anew. When the district court erroneously fails to remedy a prosecutor’s breach of the plea agreement, we will “determine the appropriate remedy necessary to ensure the interests of justice are served — either withdrawal of the guilty plea or resentencing before another judge.” See King, 576 N.W.2d at 371 (determining defendant was entitled to specific enforcement of the bargained-for plea agreement and remanding for resentenc-ing). The interests of justice are adequately served in this case by remanding for resentencing. Bearse can still receive the benefit of his bargain under the plea agreement if the State carries out its obligation at resentencing. Consequently, there is no need to expend the added prosecutorial and judicial resources that would be required by vacating the conviction and allowing the process to start anew. Therefore, we affirm the conviction, but vacate the decision of the court of appeals, vacate Bearse’s sentence, and remand the case for resentencing.

B. Special Life Sentence. Iowa Code section 903B.1 requires that a person convicted of an offense under chapter 709

shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for the rest of the person’s life, with eligibility for parole as provided in chapter 906.

This provision essentially requires sex-abuse offenders to remain on parole or probation for life. The word “shall” in the statute indicates the legislature intended the special life sentence to be mandatory. See Iowa Code § 4.1(36)(a) (requiring that unless otherwise specifically provided by the legislature, “[t]he word ‘shall’ imposes a duty”); State v. Tenny, 493 N.W.2d 824, 826 (Iowa 1992) (stating “ ‘shall’ indicates mandatory intent unless the context indicates otherwise”).

Bearse argues the district court failed to advise him of the special life sentence prior to accepting his plea of guilty, which rendered his guilty plea involuntary and unintelligent. In order to challenge a guilty-plea proceeding on appeal, a defendant must file a motion in arrest of judgment. Iowa R.Crim. P. 2.24(3)(a); State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). Counsel for Bearse failed to file the required motion. “However, this failure does not bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)).

The State argues defense counsel could not have been ineffective for failing to raise the special life sentence by filing a motion in arrest of judgment because Bearse was not sentenced under the special provision. Yet, on remand, Bearse will face resentencing under all applicable provisions, and he will be subject to the special sentencing provision. Thus, even if Bearse failed to preserve his claim by filing a motion in arrest of judgment, we can consider whether the failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel.

In considering a claim of ineffective assistance of counsel on direct appeal, Iowa Code section 814.7(3) allows us to evaluate the record surrounding an ineffective-assistance-of-counsel claim and choose whether we will decide the claim on direct appeal or preserve it for postconviction proceedings. As mentioned earlier, we apply the well-settled, two-prong test to analyze Bearse’s ineffective-assistance-of counsel claim. Bearse “must demonstrate (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice.” Id.

Even assuming defense counsel failed to perform an essential duty by failing to file a motion in arrest of judgment, Bearse cannot meet his burden to prove he was prejudiced by the failure on this record. As we clarified in Straw, a defendant who relies on an ineffective-assistance-of-counsel claim to challenge the adequacy of a guilty plea has the burden to prove “there is a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial.” Id. at 138. In Straw, we explained:

Under the “reasonable probability” standard, it is abundantly clear that most claims of ineffective assistance of counsel in the context of a guilty plea will require a record more substantial than the one now before us.... [Tjhere is nothing in this record to indicate whether or not Straw’s trial counsel told him about the possibility of consecutive sentences. Such evidence could be a significant part of our prejudice analysis. This case exemplifies why claims of ineffective assistance of counsel should normally be raised through an application for postconviction relief. In only rare cases will the defendant be able to muster enough evidence to prove prejudice without a postconviction relief hearing.

Id. As in Straw, the record before us on this direct appeal is devoid of evidence indicating Bearse would not have pleaded guilty, but would have insisted on going to trial. In the absence of such evidence, we must preserve the claim for postconviction proceedings. To do otherwise, would be to adopt a per se rule of prejudice and shift the burden to the State. See id. at 137 (refusing to adopt a per se rule of prejudice). We refused to do so in Straw, and we again refuse to do so here. This record makes it impossible for Bearse to muster sufficient evidence to satisfy his burden of demonstrating prejudice. His claim should be preserved for postconviction proceedings.

IY. Conclusion.

We vacate the decision of the court of appeals and sentence of the district court and remand for resentencing before a new district court judge.

DECISION OF COURT OF APPEALS VACATED; SENTENCE VACATED; CASE REMANDED.

All justices concur except WIGGINS, J., who concurs in part and dissents in part.

WIGGINS, Justice

(concurring in part and dissenting in part).

I concur in the majority’s opinion vacating Bearse’s sentence and remanding the case for resentencing on the grounds the prosecutor breached the plea agreement. However, for the reasons set out in the dissent in State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006) (Lavorato, C.J., dissenting), I dissent from the majority’s decision to preserve Bearse’s claim of ineffective assistance of counsel based on the district court’s failure to advise him of the special life sentence prior to accepting his guilty plea. I would apply a per se prejudice rule, vacate the judgment of conviction, and remand the case to allow the defendant to plead anew because the district court failed to advise Bearse of the special life sentence.

      . Iowa Code section 903B.1 requires that a person convicted of an offense under chapter 709
      shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for the rest of the person's life, with eligibility for parole as provided in chapter 906.

      . In Straw, the defendant appealed from judgments and sentences entered following guilty pleas. Id. at 130. As in this case, the defendant complained that “his counsel rendered ineffective assistance by failing to file a motion in arrest of judgment after the district court did not inform him of the maximum punishment he could face by pleading guilty.” Id.