text:
    In the Matter of the WELFARE OF the CHILD OF L.F. L.W., Child.
    No. C8-01-52.
    Court of Appeals of Minnesota.
    Feb. 12, 2002.

      Leonardo Castro, Chief Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, for appellant.
    Amy J. Klobuchar, Hennepin County Attorney, Mary Martin Lynch, Assistant Hennepin County Attorney, Minneapolis, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, HANSON, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

TOUSSAINT, Chief Judge.

Appellant mother L.F., appeals the district court’s denial of her motion to vacate a default termination of her parental rights on the basis that (1) the default termination of her parental rights deprived her of due process of law because she did not receive notice that she must appear at the hearing; and (2) the district court abused its discretion by not reopening the default judgment. Because we conclude that due process requires' that a pretrial hearing notice must adequately notify parents that their presence is required at a pretrial termination hearing, termination of L.F.’s parental rights by default violates due process and the district court’s denial of her motion to vacate is reversed and remanded.

Facts

Appellant mother L.F., gave birth to L.W. on July 22, 1999. At delivery, L.F. tested positive for cocaine, opiates, and marijuana, while L.W. tested positive for cocaine and opiates. L.W. was born with life-threatening medical conditions requiring a heart and lung bypass operation. L.F. admitted to chemical dependency to crack cocaine and heroine, and pursuant to a Children in Need of Protection Services (CHIPS) petition, L.W. was placed in alternative custody upon her release from the hospital in August 1999.

L.W.’s CHIPS petition and L.F.’s prior delinquency case were consolidated, and the district court developed a case plan to address both. L.F. complied with the court ordered case plan until May 2000 when the delinquency action was dismissed. Subsequently, L.F. failed to submit to the case plan requirements, failed to visit L.W., and failed to keep in contact with her social worker.

On September 19, 2000, L.F. failed to attend the CHIPS hearing. She was then personally served with notice of a November 19, 2000, 9:00 a.m. hearing. Although her counsel was present, L.F. again failed to attend the November 2000 hearing, and the court proceeded in default. After hearing testimony from L.F.’s social worker and mother, the district court entered a default judgment termin'ating L.F.’s parental rights. At approximately 10:15 a.m., minutes after the proceeding concluded, the district court observed L.F. in the courthouse and told that her parental rights had been terminated.

L.F. moved to vacate the default judgment. The district court denied the motion, and L.F. now appeals the district court’s denial of her motion to vacate the default judgment.

Issue

Were L.F.’s due process rights violated at a pretrial termination of parental rights hearing where the notice for the hearing did not contain language requiring the parents to be present?

ANALYSIS

I.

For the first time on appeal, L.F. argues that entry of a default judgment as a result of her absence from the pretrial hearing violates her right to due process because she was (1) not afforded a full hearing or trial before termination of her parental rights at a pretrial hearing; (2) not afforded proper notice that her parental rights could be terminated if she failed to appear at the pretrial hearing; and (3) denied effective assistance of counsel because her counsel could not have been effectively prepared for trial at the pretrial hearing.

Generally, the failure to raise an issue at the district court is waiver of the issue on appeal. See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn.1981). However, this court may address issues beyond those presented by the parties at the district court as necessary in the “interests of justice,” but review may be limited by the parties failure to preserve the issues for appeal. Minn. R. CivApp. P. 103.04. Issues may be reviewed for the first time on appeal “where to decline to review would work an injustice or infringe upon a constitutional right.” Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn.App.1984). The issues raised by L.F. on appeal are constitutional and the record is adequate to allow this court to address the issue despite L.F.’s failure to raise it at the district court. In this particular circumstance we exercise our limited discretion under Minn. R. CivApp. P. 103.04, and review the issues raised by L.F. because it is in the best interest of justice.

A district court may enter a default judgment in a parental termination case when a parent fails to appear at a hearing. In re Children of Coats, 633 N.W.2d 505 (Minn.2001). In Coats, the parent was aware of the consequences of her absence because she had previously signed a notice at the courthouse clearly indicating not only that her presence was required but her absence would result in default proceedings. When she still failed to appear, her rights were terminated by default. Id. at 509-10.

In order for the district court to proceed in default, the parent’s notice of the hearing is required to contain a statement explaining that failure of the parents to appear at the hearing could result in an entry of a default judgment and termination of their parental rights. Minn. R. Juv. P. 54.01; see also Minn. R. Juv. P. 69.03, subd. 3e. In contrast, L.F.’s notice contained no statement that she must appear and that her failure to appear could result in the termination of parental rights by entry of default. We conclude that L.F.’s notice did not provide her adequate notice that failure to appear could result in the termination of her parental rights.

Counsel may substitute for the presence of parents. Minn. R. Juv. P. 72.02, subd. 1. However, L.F. was not represented by counsel at the pretrial hearing. Her counsel initially appeared, but requested withdrawal from the case. The district court granted her attorney’s request to withdraw and proceeded with the hearing. The absence of counsel coupled with a notice that did not explicitly notify the parents that their personal failure to appear would result in termination of their parental rights, leaves the interests of the parents unprotected. A proceeding lacking the protection of a party’s interests and rights cannot be considered a “real judicial proceeding.” Coats, 633 N.W.2d at 512 (quoting State ex rel. Butler v. Swenson, 243 Minn. 24, 28, 66 N.W.2d 1, 4 (1954)).

Consequently, the district court’s denial of L.F.’s motion to reopen is reversed and the case is remanded.

DECISION

Because the district court proceeded in default without notice to L.F. that her absence could result in the termination of her parental rights deprived L.F. of her due process rights, the district court’s denial to reopen the judgment is reversed and the case is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 ND 15
    In The Matter of The Application For DISCIPLINARY ACTION AGAINST Myron TESSMANN, Judge of Burlington, North Dakota Municipal Court. Judicial Conduct Commission of the State of North Dakota, Petitioner, v. The Honorable Myron Tessmann, Judge of the Municipal Court, Burlington, North Dakota, Respondent.
    No. 20020009.
    Supreme Court of North Dakota.
    Jan. 22, 2002.
   PER CURIAM.

[¶ 1] This is a disciplinary proceeding against Myron Tessmann who was serving as a municipal court judge in Burlington, North Dakota, at the commencement of formal proceedings. Tessmann has since resigned his position.

[¶ 2] On January 8, 2002, under Rule 14, Rules of the Judicial Conduct Commission, a Hearing Panel of the Judicial Conduct Commission submitted an Agreement signed by Paul W. Jacobson, Disciplinary Counsel, and Tessmann, and an Affidavit of Consent signed by Tessmann.

[¶ 3] In the Affidavit, Tessmann admitted to presiding over municipal court while smelling of an alcoholic beverage on a number of occasions, including, on or about November 9, 1999, July 3, 2001, July 17, 2001, and September 25, 2001. Tessmann further admitted his conduct violated Canon 2, North Dakota Code of Judicial Conduct, which provides “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities”. Additionally, Tessmann agreed to a sanction of censure by the Supreme Court and the limitation of not serving in the future as a municipal judge. The Hearing Panel accepted the Agreement and Tessmann’s Affidavit.

[¶4] Under R. Jud. Conduct Comm. 14(C), the respondent is required to sign an Affidavit indicating the respondent consents to the sanction, the consent is freely and voluntarily rendered, there is presently pending a proceeding involving allegations of misconduct, and the facts set forth in the affidavit are true. The Affidavit filed by Tessmann meets these requirements. Under R. Jud. Conduct Comm. 14(D), the Supreme Court must either reject the agreement or enter the order disciplining the respondent.

[¶ 5] ORDERED, the Agreement signed by Disciplinary Counsel and Myron Tessmann and the Affidavit of Tessmann are accepted; and

[¶ 6] IT IS FURTHER ORDERED, Myron Tessmann is censured for his violation of N.D.Code Jud. Conduct Canon 2, and is prohibited from serving as a municipal judge.

[¶ 7] Dated at Bismarck, North Dakota, January 16, 2002.

[¶ 8] GERALD W. VANDEWALLE, C.J., and CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.


author: GORS, Acting Justice.

text:
    2002 SD 3
    DAKOTA PORK INDUSTRIES, Plaintiff and Appellant, v. The CITY OF HURON, South Dakota, A Municipal Corporation, Defendant and Appellee.
    No. 21990.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided Jan. 2, 2002.
    Rodney Freeman, Jr., Jeff Burns of Churchill, Manolis, Freeman, Kludt, Shelton & Burns Huron, South Dakota, Attorneys for plaintiff and appellant.
    Neil Fulton, Robert B. Anderson of May, Adam, Gerdes and Thompson Pierre, South Dakota, Attorneys for defendant and appellee.
   GORS, Acting Justice.

[¶ 1.] Dakota Pork Industries (Dakota Pork) appeals the trial court’s grant of summary judgment to the City of Huron (City) on breach of express warranty and breach of implied warranty of fitness for a particular purpose. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Dakota Pork operated a pork processing plant in Huron, South Dakota, from 1987 until it ceased operations in July of 1997. In 1991, Dakota Pork entered into an agreement with the City whereby City would provide for Dakota Pork’s water needs in exchange for Dakota Pork’s water rights in the James River. Negotiations regarding this agreement took place over the course of a year. No special conditions or uses for water were expressed in the written contract.

[¶ 3.] Prior to May 24, 1994, a foreign substance, later determined to be calcium carbonate, appeared on the meat at Dakota Pork. On May 29, 1998, Dakota Pork filed a complaint against City for negligence, breach of express warranty, and breach of implied warranty of fitness for a particular purpose. City moved for summary judgment and a hearing was held February 26, 2001. The trial court granted City’s motion on all counts.

[¶ 4.] Dakota Pork appeals the issues of breach of express warranty and breach of implied warranty of fitness for a particular purpose.

STANDARD OF REVIEW

[¶ 5.] The standard of review for this Court in reviewing a trial court’s summary judgment is well settled:

Summary judgement is authorized ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. Cases involving the interpretation of written documents are particularly appropriate for disposition by summary judgment, such interpretation being a legal issue rather than a factual one.

Kimball Inv. Land, Ltd. v. Chmela, 2000 SD 6, ¶ 7, 604 N.W.2d 289, 292 (internal citations omitted).

ANALYSIS AND DECISION

[¶ 6.] The primary inquiry is whether City’s furnishing of water to Dakota Pork constitutes a sale of goods under Article 2 of the Uniform Commercial Code (UCC). Courts have adopted two conflicting viewpoints.

[¶ 7.] One viewpoint is expressed in the pre-UCC case of Canavan v. City of Mechanicville, 229 N.Y. 473, 128 N.E. 882 (1920). In Canavan the New York Court of Appeals examined the sale of water under the Uniform Sales Act. Under that Act, goods were defined in part as “all chattels personal other than things in action or money.” The court held that “[t]he furnishing of water, through a system of waterworks, by a water corporation, either private or municipal, to private consumers, at a fixed compensation, is a sale of goods within the meaning of the statute.... It is a sale of goods as if the water were collected and delivered in bottles for a price.” Id. at 883. See also Gall by Gall v. Allegheny County Health Dep’t, 521 Pa. 68, 555 A.2d 786, 789 (1989) (stating “[a]ll who have paid bills for water can attest to its movability”); Zepp v. Mayor & Council of Athens, 180 Ga.App. 72, 348 S.E.2d 673, 677 (1986) (stating that it does not find Coast Laundry v. Lincoln City, 9 Or.App. 521, 497 P.2d 1224 (1972) compelling, and that “[wjater, like electricity is a thing; it exists; it is ‘fairly identifiable’ as a movable at the time of identification to the contract for sale”).

[¶ 8.] The other viewpoint is expressed in Coast Laundry v. Lincoln City, 9 Or.App. 521, 497 P.2d 1224 (1972). In Coast Laundry an Oregon court held that the sale of water by a municipality is not governed by the UCC. Id. at 1228. The court analyzed Canavan, supra, in light of the UCC. The court stated, “[t]he definition of goods is based on the concept of movability and the term ‘chattels personal’ is not used. It is not intended to deal with things which are not fairly identifiable as movable before the contract is performed.” Id. (citing Official Comment, 1 Uniform Laws Ann. 79, 89 § 2-105 (1968)). The Coast Laundry court determined that water is not “fairly identifiable as movable before the contract is performed” and concluded that the sale of water does not constitute the sale of goods. Coast Laundry, 497 P.2d at 1228.

[¶ 9.] The UCC defines “goods” as all things “which are movable at the time of identification to the contract for sale[.]” SDCL 57A-2-105(l). Goods “must be both existing and identified before any interest in them can pass.” SDCL 57A-2-105(2). “Whatever can be measured by a flow meter has ‘movability’ as that term is used in connection with the definition of goods.” 1 R. Anderson, Uniform Commercial Code, § 2-105:19, at 560 (3rd ed 1981).

[¶ 10.] We agree with the conclusion reached in Canavan and find that the sale of water by a municipality is the sale of goods and a transaction which is governed by the UCC. Therefore, we next address the issues of breach of express warranty and breach of implied warranty of fitness for a particular purpose.

[¶ 11.] 1. Breach of express warranty.

[¶ 12.] Dakota Pork argues that City breached an express warranty in its contract. An express warranty is an affirmation of fact or promise that becomes the basis of the bargain between a buyer and seller. SDCL 57A-2-313. Dakota Pork admits that the contract did not contain an express warranty regarding water quality standards. Dakota Pork contends that, while it was not discussed in the contract, water quality was discussed in the negotiations and City was aware of the water needs and purposes. Dakota Pork relies on SDCL 57A-2-202 which provides:

Terms ... which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence ... of a contemporaneous oral agreement but may be explained or supplemented
(a) By course of dealing or usage of trade (§ 57A-1-205) or by course of performance (§ 57A-2-208); and
(b) By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. „

(emphasis added).

[¶ 13.] The CEO of Dakota Pork, Carl Kuehn, stated in his deposition that negotiations with City were extensive and addressed issues of quality, quantity, time and price. Kuehn also testified that Dakota Pork’s requirement for water was “potable or drinkable water that fell within the guidelines [which] the Environmental Protection Agency had established for potable water.”

[¶ 14.] City denies making any oral guarantees or express warranties regarding the water quality. City argues that because the contract is a complete and exclusive statement of the agreement between Dakota Pork and City, SDCL 57A-2-202(b) precludes the supplementation of terms to the contract. We agree. Supplemental terms cannot be introduced through contemporaneous statements because, in this case, the written contract was a complete and exclusive statement of terms. Furthermore, when asked to identify any express warranties relating to water quality, Dakota Pork simply referred to the contract, which was silent. Dakota Pork produced no evidence that City made or breached an express warranty. Dakota Pork’s alleged oral understanding with City is not consistent with the written contract. The express terms of the contract control in the face of inconsistency. SDCL 57A-l-206(4).

[¶ 15.] The trial court concluded that Dakota Pork failed to show a genuine issue of material fact regarding what water standards were required under the contract, or that the City furnished something less than potable or drinkable water under the EPA guidelines. We agree that the trial court properly granted summary judgment on this issue.

[¶ 16.] 2. Breach of implied warranty of fitness for a particular purpose.

[¶ 17.] The next issue is whether an implied warranty of fitness for a particular purpose applies. In Canavan, the court held that although the furnishing of water constitutes the sale of goods, there are no implied warranties of merchantability and fitness for a particular purpose. Canavan, 128 N.E. at 883. See also Sternberg v. New York Water Service Corp., 155 A.D.2d 658, 659, 548 N.Y.S.2d 247 (N.Y.A.D.1989) (adopting the holding in Canavan that no implied warranties attach). Likewise, the court in Coast Laundry held that because the sale of water was not the sale of goods, it carried no implied warranties of merchantability or fitness for a particular purpose. 497 P.2d at 1227-28. The court stated

While we have found decisions holding that suppliers of electric power, natural gas and bottled fuel gas may be held liable to their customers on the theory of ... breach of implied warranty, we have been cited to no authority nor have we found any holding there is an express or implied warranty of merchantability or fitness for a particular purpose in connection with the sale and supply of water.

Id. We agree and hold that the furnishing of water by a municipality through its water works system does not carry an implied warranty of fitness for a particular purpose.

[¶ 18.] We therefore affirm the trial court’s granting of summary judgment on both counts.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, concur.


author: SABERS, Justice.

text:
    2002 SD 5
    CORNER CONSTRUCTION COMPANY, a corporation, Plaintiff and Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation; and Cummings & Roll, Ltd., a corporation, Defendants and Appellees, Regent Insurance Company, a corporation; and Continental Insurance Company, a corporation, Defendants.
    Nos. 21880, 21888, 21897.
    Supreme Court of South Dakota.
    Argued Nov. 16, 2001.
    Decided Jan. 9, 2002.

      Veronica L. Duffy, Joseph M. Butler of Bangs, McCullen, Butler, Foye and Simmons, LLP, Rapid City, for plaintiff and appellant.
    Scott Sumner, Jerry D. Johnson of Banks, Johnson, Colbath, Kerr & Sumner, LLC, Rapid City, for defendants and ap-pellees United States Fidelity & Guaranty Co.
    William A. May of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, for defendants and appellees Cummings & Roll, Ltd.
   SABERS, Justice.

[¶ 1.] Corner Construction Company (Corner) filed an action seeking a declaratory judgment against United States Fidelity and Guaranty Company (USF & G) alleging that there was coverage for the faulty work of Corner’s subcontractors under its existing insurance policies. Corner also filed an action against Cummings and Roll (C & R) alleging that C & R had negligently advised Corner that there was no insurance coverage under its insurance policies. USF & G and C & R moved for summary judgment. The trial court granted summary judgment for USF & G holding that there was coverage under the insurance policies, but Corner was not covered because it failed to give proper notice. The trial court denied C & R’s motions. USF & G and C & R appeal on: (1) the issue of coverage. C & R also appeals: (2) the trial court’s decision that Corner’s claim was not barred by the applicable statute of limitation. Corner appeals on: (3) the issue of notice. We affirm Issue 1 in part and remand for factual determinations on Issues 1, 2 and 3.

FACTS

[¶ 2.] On May 29, 1986, Corner, as a general contractor, entered into a contract with Rapid City and the Rapid City School District (City/School) for the construction of a 65,000 square-foot, three-story, school administration building. Corner was required to perform all the work under the contract in constructing the building. Corner was responsible for the quality of its work and that of its subcontractors. It warranted that all work done on the building, including that done by its subcontractors, would be of good, workmanlike quality-

[¶ 3.] Corner hired three subcontractors to perform various portions of the construction. Cub Acoustical was hired to do the insulation work and the building’s external thermal envelope. Aldrich Air Conditioning was hired to install the heating and ventilation system. Tile Setters was hired to construct a fountain outside of the building. The subcontractors commenced work in early 1987.

[¶ 4.] City/School occupied the building in the latter part of 1987. Almost immediately after moving in, City/School began experiencing problems with the building’s heating and ventilation system, the concrete floor and the outdoor fountain. City/ School investigated further and discovered construction and design deficiencies.

[¶ 5.] The general contract between Cornér and City/School provided for mandatory arbitration with any award to be final and conclusive. In September 1992, City/School advised Corner that it planned to initiate an arbitration proceeding regarding the work of Corner’s subcontractors. City/School claimed damages in excess of $1 million.

[¶ 6.] Corner was insured by USF & G under a standard comprehensive general liability policy (CGL). The policies were issued by USF & G and countersigned by its general agent, C & R. They furnished completed operations coverage. Attached to the general policy was a broad form property damage endorsement (BFPDE) for which Corner paid an additional premium.

[¶ 7.] After Corner was advised of the pending arbitration proceeding, Corner’s president, Sherwood Corner, asked C & R whether Corner would be covered by its insurance policies for the faulty workmanship of its subcontractors and for the defense of the arbitration claim. Ross Roll, one of the owners of C <& R, advised Corner’s president that there was no coverage for the subcontractors’ work or for Corner under the CGL policy.

[¶ 8.] City/School filed a demand for arbitration against Corner and the building architect. A hearing was held on October 12, 1994. In November 1994, City/ School was awarded $180,500 against Corner and $98,500 against the architect.

[¶ 9.] In September 1997, Corner brought an action for declaratory judgment against USF & G. Corner also brought an action against C & R alleging that C & R negligently and erroneously advised Corner that there was no liability insurance coverage. Against USF & G, Corner sought a declaration that its CGL policy furnished liability coverage to Corner for damages caused by the faulty workmanship of Corner’s subcontractors. Corner also requested reimbursement for the costs of defending the arbitration proceeding and the amount paid in satisfaction of the arbitration award. Against C & R, Corner requested damages for C <& R’s negligence in advising Corner that there was no coverage available under its policy for the faulty workmanship of its subcontractors.

[¶ 10.] USF & G filed a motion for summary judgment claiming that the CGL policy did not cover liability for damages caused by Corner’s subcontractors and, in the alternative, that Corner failed to comply with the policy provisions relating to notice. C & R filed motions for summary judgment claiming that there was no coverage under the policies and that Corner’s suit was barred by the three-year limitation period in SDCL 15-2-14. The trial court determined that the BFPDE of the CGL policy covered Corner for the faulty workmanship of its subcontractors. It ultimately held, however, that there was no liability for coverage because Corner failed to comply with the written notice provision of the CGL policy and that USF & G did not waive the written notice provision. The trial court granted summary judgment in USF & G’s favor. The trial court denied C & R’s motions for summary judgment.

STANDARD OF REVIEW

[¶ 11.] Our standard of review for summary judgment is well established and is “whether a genuine issue of material fact exists and whether the law was correctly applied.” Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (citing Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted)).

[¶ 12.] “When interpreting insurance contracts, we have uniformly held them reviewable as a matter of law under the de novo standard.” National Sun Indus., Inc. v. S.D. Farm Bureau Ins. Co., 1999 SD 63, ¶ 7, 596 N.W.2d 45, 46 (citing Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 3, 566 N.W.2d 487, 489 (additional citations omitted)).

[¶ 13.] 1. WHETHER CORNER IS AFFORDED COVERAGE UNDER THE BROAD FORM PROPERTY DAMAGE ENDORSEMENT OF ITS CGL POLICY FOR THE FAULTY WORKMANSHIP OF ITS SUBCONTRACTORS.

[¶ 14.] The pertinent provisions of Corner’s insurance policies are those relating to bodily injury liability and property damage liability. The policies provide that:

The company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
A. bodily injury, or
B. property damage
to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements.

Under the exclusion provisions of the policies, the insurance does not apply to:

property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.

(Exclusion (o) (emphasis added)). The BFPDE, specifically section VI(A)(3), purchased by Corner modifies the above exclusion of the basic policy as follows:

VI. Broad Form Property Damage Liability Coverage (Including Completed Operations)

(A) Exclusions (k) and (o) are replaced by the following:

(3) with respect to the completed operations hazard and with respect to any classification stated in the policy or in the company’s manual as “including completed operations” to property damage to work performed by the named insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith.

(emphasis added).

[¶ 15.] The 1973 version of the BFPDE eliminated the phrase “on behalf of’ when discussing whose work is covered by the policies. In 1986, this CGL policy was amended, essentially incorporating the 1973 BFPDE endorsement section VI(A)(3) into the basic policy as exclusion L. This new provision is as follows:

1. “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

[¶ 16.] USF & G and C & R argue that there is no coverage available for Corner under its policies because USF & G is not legally obligated to insure against the faulty work of Corner’s subcontractors. USF & G and C & R argue that the omission of the phrase “on behalf of’ from the policy provisions does not extend coverage to subcontractors. Furthermore, USF & G and Corner claim that Corner is attempting to obtain coverage for its own liability under its contract with City/School and that the relevant insurance policies were intended to cover tort, not contract, liability.

[¶ 17.] The BFPDE exclusion operates when there is a completed operation as defined by the insurance policy. The BFPDE’s completed operations hazard provision is intended to provide coverage for risks that arise after the completion of a construction project, as here. Fireguard Sprinkler Sys., Inc. v. Scottsdale Ins. Co., 864 F.2d 648, 649-50, (9thCir.1988) (citing Dean Henderson, Insurance Protection for Products Liability and Completed Operations—What Every Lawyer Should Know, 50 Neb.L.Rev. 415, 441 (1971)). “The idea behind this exclusion is that liability insurance should not be a warranty or performance bond for general contractors because they control their work.” Fireguard Sprinkler Sys., Inc., 864 F.2d at 650 (citing Southwest Forest Indus. v. Pole Bldgs., Inc., 478 F.2d 185, 187 (9thCir.1973)).

[¶ 18.] The primary issue is whether a completed operations hazard exclusion in an endorsement to a CGL policy excludes coverage for damage to the final product, caused by the faulty work of subcontractors. Of key importance is whether the elimination of the phrase “on behalf of,” from the completed operations hazard provision, provides coverage for a named insured’s subcontractors. The question becomes whether a subcontractor’s work is a separate insurable risk.

[¶ 19.] A split of authority exists on this issue. One line of authority adopts the position that, because of the language of the CGL policies and their exclusions and endorsements, as well as the interpretation of these policies by the insurance industry, the work of subcontractors is covered. See Fireguard Sprinkler Sys., 864 F.2d at 651 (holding that the completed operations hazard provision in the BFPDE does not preclude coverage for losses caused by the work of subcontractors); Fejes v. Alaska Ins. Co., 984 P.2d 519 (Alaska 1999) (same); McKellar Dev. of Nevada, Inc. v. Northern Ins. Co., 108 Nev. 729, 837 P.2d 858 (1992) (same); Maryland Casualty Co. v. Reeder, 221 Cal.App.3d 961, 270 Cal.Rptr. 719 (Cal.App. 4 Dist.1990) (same); Southwest La. Grain Inc., v. Duncan, Inc., 438 So.2d 215 (La.App.1983) (same).

[¶ 20.] The other line of authority adopts the position that the elimination of the phrase “on behalf of’ is of little significance and that CGL policies were only intended to insure against tort liability for physical damage to others. See Bor-Son Bldg. Corp. v. Employers Commercial Union Ins. Co. of Am., 323 N.W.2d 58 (Minn.1982) (holding that the completed operations hazard provision does not recognize the faulty work of subcontractors as a separate insurable risk); Blaylock v. AIU Ins. Co., 796 S.W.2d 146 (Tenn.Ct.App.1990) (same).

[¶ 21.] The courts that have found coverage for the faulty work of subcontractors have done so on the basis that the language of the completed operations hazard exclusion in the BFPDE does not preclude such coverage. Fireguard Sprinkler Sys., 864 F.2d at 651. These courts have interpreted the deletion of the phrase “on behalf of’ as significant. The deliberate omission of the phrase lends credence to the position that the coverage exclusion in the completed operations hazard provision was only to apply to work performed by the named insured and not to subcontractors.

[¶ 22.] Furthermore, Fireguard Sprinkler Systems and its progeny have stated that the purpose of insurance is to insure against risks. Because a “general contractor’s liability policy insures against risks outside his or her control, such a risk surely can arise from a subcontractor’s work.” Id. at 653. Specifically,

[u]nder the usual coverage [] the insured has no insurance whatsoever for damage to a subcontractor’s work or for damage to his own work resulting from a subcontractor’s work. Therein lie the advantages of Broad Form Property Damage coverage including Completed Operations. Consequently, if an insured does not anticipate using subcontractors, the value of purchasing Broad Form Property Damage coverage with Completed Operations is questionable, in view of the additional premium required for it.

Id. at 652 (emphasis in original).

[¶ 23.] These courts have also looked at extrinsic evidence, particularly from the insurance industry, to determine the meaning of the completed operations hazard provision. According to one industry publication:

[t]he broad form property damage endorsement “eliminates coverage for property damage to work performed by the named insured if the property damage arises out of the named insured’s work or any portion of it. Thus, an insured has coverage for his completed work when the damage arises out of work performed by someone other than the named insured, such as a subcontractor .... The usual Completed Operations coverage (no Broad Form Property Damage endorsement attached) flatly excludes property damage to work performed by or on behalf of the named insured arising out of the work.”

Maryland Casualty Co., 221 Cal.App.3d at 972, 270 Cal.Rptr. 719 (citing August, 1982, Fire Casualty & Surety Bulletin, published by the National Underwriters Association). Another frequently cited publication dismisses the idea that because a subcontractor’s work becomes part of the final product, it cannot be viewed as a separate insurance risk. Id. at 976, 270 Cal.Rptr. 719.

The editors have heard of instances in which insurers have denied coverage ... on the ground that the policy exclusion of injury to the named insured’s products (which is not amended by the Broad Form endorsement) eliminates coverage for any damage to the completed building, the completed building being a “product” of the named insured. In the opinion of the editors, that reasoning ignores the distinction between the “completed operations hazard” and the “named insured’s products” in the policy definitions. Moreover, that reasoning precludes any possibility of recovery under the Completed Operations feature of the Broad Form Endorsement, a feature for which the insured has presumably paid an additional premium.

Id.

[¶ 24.] The courts that have declined to find coverage for the faulty work of subcontractors have held that, when a general contractor enters into a contract, it assumes certain risks. Bor-Son Bldg. Corp., 323 N.W.2d at 61; Blaylock, 796 S.W.2d at 154. The Bor-Son court stated that “[i]n-cluded in those risks was the obligation to construct buildings free from defects and to remedy, on demand, any defects discovered within a year of completion.” Bor- Son Bldg. Corp., 323 N.W.2d at 61. The court ultimately concluded that “[s]ince the alleged building damages were the result of alleged breach of contract, there was no duty on [the insurer], the comprehensive general liability insurer, to defend the [ ] actions not to indemnify [the general contractor] for its contribution toward the settlement of those actions.” Id. at 62.

[¶ 25.] Here, the trial court determined that the insurance policies issued by USF & G “would have required [USF & G] to defend and indemnify [Corner] with respect to the claim made against [Corner] in connection with the construction of the City/School Administration building[.]” We agree, but only to the extent that the subcontractor’s defective work resulted in an accident or occurrence which resulted in property damage to the completed work of the general contractor and subcontractors.

[¶ 26.] In order to qualify for such coverage, Corner must show that the insuring clause under its policies is satisfied. The insuring clause states:

The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence^]

[¶ 27.] Generally, the CGL policy, together with the BFPDE exclusion, will not provide coverage for the subcontractor’s faulty workmanship, unless it results in an accident or occurrence which results in property damage to the work. See generally, Haugan v. Home Indem. Co., 86 S.D. 406, 414, 197 N.W.2d 18, 22 (1972) (holding that “there is no liability coverage afforded by the policies for damages caused by and confined to the insured’s own work or product”). If, however, the subcontractor’s faulty workmanship results in damage to other property, the damage will be covered. See id. (holding that “when the insured’s work or product actively malfunctions and causes damages to other property coverage is afforded.”).

[¶ 28.] Furthermore, the property damage must be caused by an occurrence. An “occurrence” is defined as an “accident” which is an event that is “unde-signed, sudden, and unexpected.” Taylor v. Imperial Casualty, 82 S.D. 298, 144 N.W.2d 856, 858 (1966) (citing Neale Const. Co. v. U.S. Fidelity and Guar. Co. 199 F.2d 591 (10Cir.1952)) (additional citations omitted).

[¶ 29.] As required by the insuring clause, there was an accident or unintended event, resulting in property damage that was neither expected nor intended by the insured, at least in respect to the following: Cub, which was hired to do the insulation work, left voids in the insulation between the studs and failed to securely attach the vapor barrier. The vapor barrier fell, causing temperature fluctuations and other ventilation problems. As a result, Corner’s own work was damaged by the faulty work of its subcontractor. Corner was forced -to remove the drywall, fix the vapor barrier, replace the drywall, and then retape, re-texture and repaint the portions of the building that had been damaged. Such damage is covered by the insuring clause in connection with the BFPDE. Accordingly, we affirm the trial court’s finding of coverage for Corner to this extent under the policy. When viewed in a light most favorable to Corner, we conclude that some of the facts giving rise to this lawsuit are within the coverage of the USF & G policy and BFPDE completed operations hazard exclusion. Since the trial court made no determination as to the extent of damages under this theory, we remand for that purpose.

[¶ 30.] 2. WHETHER THE TRIAL COURT ERRED WHEN IT HELD THAT CORNER WAS NOT ENTITLED TO COVERAGE UNDER ITS CGL POLICY BECAUSE IT FAILED TO PROVIDE USF & G WRITTEN NOTICE.

[¶ 31.] The trial court held that the policies issued by USF & G required written notice and that Corner failed to substantially comply with the policies’ written notice provision until after the arbitration proceedings had been completed, resulting in prejudice to USF & G. Corner argues that it immediately informed Ross Roll, an owner of C & R, of the pending arbitration proceeding and inquired as to whether there was coverage for the faulty workmanship of its subcontractors. C & R denies such statements were ever made. The trial court did not address the existence or nonexistence of such statements. Therefore, there is an issue of material fact which should be addressed.

[¶ 32.] If Corner did inform C & R of the arbitration proceeding pending against it, SDCL 59-6-5 is applicable. SDCL 59-6-5 provides:

As against a principal both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.

Accordingly, we remand for a factual determination on the issue of notice.

[¶ 33.] 3. WHETHER THE STATUTE OF LIMITATION HAS RUN ON CORNER’S CLAIM AGAINST C&R.

[¶ 34.] C&R claims that Corner’s action is barred by the three-year statute of limitation contained in SDCL 15-2-14(3). C&R contends that Corner’s negligent misrepresentation claim sounds in negligence and, therefore, falls under SDCL 15-2-14(3). C&R further argues that Corner failed to bring this action within three years of when it alleges C & R negligently informed it that there was no coverage under its insurance policies. C&R argues that the deposition testimony of Corner’s president establishes that the alleged advisement from C & R on the issue of coverage was given in September 1992. Corner commenced this action in September 1997. Accordingly, C & R asserts that Corner brought its action two years after the three-year limitation period expired. SDCL 15-2-14(3) provides:

Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within three years after the cause of action shall have accrued:
(3) An action for personal injury.

[¶ 36.] Corner argues that the six-year statute of limitation contained in either SDCL 15-2-13(1) or 15-2-13(5) is applicable in this case because its claim is based upon a contract, obligation, or liability. SDCL 15-2-13(1) and (5) provide:

Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within six years after the cause of action shall have accrued.
(1) An action upon a contract, obligation, or liability, express or implied, excepting those mentioned in §§ 15-2-6 to 15-2-8, inclusive, and subdivisions 15-2-15(3) and (4);
(5) An action for criminal conversation or for any other injury to the rights of another not arising on contract and not otherwise specifically enumerated in §§ 15-2-6 to 15-2-17[.]

The underlying claim appears to be based upon a contract, obligation, or liability and the six-year statute of limitation should apply. This is clearly not an action for personal injury. Furthermore, C & R should not be allowed to take advantage of misrepresentations, if any, in order to avail itself of a shorter statute of limitation. Under these circumstances, it is necessary to remand to the trial court to determine whether such alleged misrepresentations occurred.

[¶ 36.] We affirm Issue 1 in part and remand for factual determination of Issues 1, 2 and 3.

[¶ 37.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

      . The courts that have followed this line of reasoning have adopted the following premise regarding CGL policies:
      [t]he risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to protect against. The coverage is for tort liability for physical damage to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.

        Bor-Son Bldg. Corp., 323 N.W.2d at 63. Ultimately, the work performed by the subcontractors becomes the work of the general contractor and is therefore not a separate insurable risk.

      . This Court has stated that "[e]stoppel may be applied to prevent a fraudulent or inequitable resort to a statute of limitations.” L.R. Foy Constr. Co., Inc. v. South Dakota State Cement Plant Comm’n, 399 N.W.2d 340, 345 (S.D.1987) (holding that it was unjust to allow the defendant to benefit from its misrepresentations and use a shorter statute of limitations to bar the action against it). ”[A]n estoppel arises, where, by conduct or acts, a party has been induced to alter his position or do that which he would not otherwise have done to his prejudice.” Id. (citing Willadsen v. Crawford, 75 S.D. 161, 60 N.W.2d 692 (1953)). If a party can prove the essential elements of estoppel the applicable statute of limitation may be tolled. L.R. Foy Constr. Co., Inc., 399 N.W.2d at 344-45. Whether the plaintiff can demonstrate that the defendant's misrepresentations tolled the statute of limitation is a question of fact for the trier of fact. Id. at 346.


author: STREIT, Justice.

text:
    Merle SHATZER, Appellant, v. GLOBE AMERICAN CASUALTY COMPANY, a Division of GRE Insurance Group, Appellee.
    No. 00-0153.
    Supreme Court of Iowa.
    Dec. 19, 2001.
    Gene Yagla and Karla J. Shea of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellant.

      Timothy W. Hamann of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.
   STREIT, Justice.

Merle Shatzer was seriously injured in an automobile collision. He sued both the driver and owner of the other car. After he settled with their insurance companies Shatzer sued his own insurance carrier, Globe American Insurance Company, for underinsured motorist benefits. Globe filed a motion for partial summary judgment seeking a determination the underin-sured motorist benefits should be offset by amounts of private disability benefits Shat-zer received from his employer. The court denied Globe’s motion. Following a trial to the court, Shatzer was awarded damages for loss of income, pain and suffering, and future pain and suffering. The court reduced the award for future pain and suffering to reflect present value. Shatzer appeals arguing the court erred in reducing the award for future damages. Globe cross-appeals. Because we find the court incorrectly reduced Shatzer’s future damages and the court correctly denied Globe’s motion for partial summary judgment, we reverse on the appeal, affirm on the cross-appeal, and remand.

I. Background Facts

Shatzer suffered serious injuries in an automobile accident. The other vehicle was driven by Boyd Bartholomew and owned by Chris Johnson. Shatzer received multiple injuries as a result of the accident, including two broken ribs, contusions, and a brain injury. On June 6,1997, Shatzer sued Bartholomew and Johnson and settled with their insurance companies for the policy limits of them two policies — a combined $45,000.

On the day of the car accident, Shatzer was insured by Globe American Insurance Company. His policy included $20,000 for underinsured motorist (UIM) benefits. On July 17, 1998, Shatzer sued Globe for the UIM benefits. Globe admitted the policy applied to the accident, but refused to pay Shatzer, claiming Shatzer’s injuries did not exceed the $45,000 already paid to him by the tortfeasors.

Globe filed a motion for partial summary judgment seeking a determination the amount payable under Shatzer’s UIM coverage should be reduced by the amount of disability benefits Shatzer received from his employer. The court denied Globe’s motion for partial summary judgment.

After a trial to the court, the court awarded Shatzer $26,000 for loss of income, $15,000 for pain and suffering, and $30,000 for future pain and suffering. The court reduced the award for future pain and suffering to a present value of $7500. In total, the court awarded Shatzer $48,700. The court reduced this amount by the $45,000 Shatzer received from the tortfeasors and awarded Shatzer a final sum of $3700.

Shatzer filed a 179(b) motion arguing the court neglected to award $7,176.99 for medical expenses and erred in reducing future pain and suffering to present value. The court granted the motion with respect to the additional medical expenses, but denied the part of the motion requesting the court not reduce the award for future pain and suffering. Shatzer appeals from this adverse ruling.

On appeal, Shatzer contends the court erred in reducing the award for future damages to present value. Globe cross-appeals arguing the court erred in overruling its motion for partial summary judgment in which Globe sought to offset the total award for private disability benefits Shatzer received from his employer.

II. Scope of Review

The court reduced Shatzer’s award for future damages to present value pursuant to Iowa Code section 624.18 (1999). Statutory challenges are reviewed for errors at law. Iowa R.App. P. 4; State v. Klawonn, 609 N.W.2d 615, 518 (Iowa 2000) (citing State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997)). Review of a district court’s grant or denial of summary judgment is for correction of errors at law. Westfield Ins. Cos. v. Economy Fire & Cas. Co., 623 N.W.2d 871, 876 (Iowa 2001) (citing Krause v. Krause, 589 N.W.2d 721, 724 (Iowa 1999)). A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Iowa R. Civ. P. 237(c); Westfield Ins. Cos., 623 N.W.2d at 876 (citing LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 306 (Iowa 1998)). We review the record in the light most favorable to the non-moving party. Id.

III. The Merits

The court awarded Shatzer $30,000 for future pain and suffering. Pursuant to Iowa Code sections 624.18(2) and 668.8 (1999), the court reduced the award to present value. Shatzer argues the court erred in reducing the award for future damages. Two Iowa Code provisions are relevant to this issue. First, the Iowa Comparative Fault Act provides “all awards for future damages shall be calculated according to the method set forth in section 624.18.” Iowa Code § 668.8. Second, Iowa Code section 624.18(2) provides:

In all personal injury actions where the plaintiff recovers a sum of money that, according to special verdict, is intended, in whole or in part, to address future damages of the plaintiff, that portion of the judgment that reflects the future damages shall be adjusted by the court or the finder of fact to reflect the present value of the sum.

Id. § 624.18(2). Both code provisions are applicable only to actions filed after July 1, 1997. 1997 Iowa Acts ch. 197, § 16 (codified at Iowa Code § 624.18(2)).

Shatzer filed the original action against the tortfeasors on June 6, 1997. He filed suit against Globe to recover his underin-sured motorist benefits on July 17, 1998. Globe argues because Shatzer filed suit against Globe after July 1,1997, the future damages award must be reduced to present value pursuant to Iowa Code section 624.18(2). Shatzer argues the suit against Globe relates back to the original action filed against the tortfeasors. He argues Iowa Code section 624.18(2) does not apply to this future damages award.

Shatzer had a contract with Globe for automobile insurance coverage. Shatzer’s insurance contract with Globe included coverage for UIM benefits. UIM insurance is a first party coverage arrangement that provides individuals with indemnification in the event a negligent motorist is not adequately insured for damage that results from a motor vehicle accident. 3 Alan I. Widiss, Uninsured and Underin-sured Motorist Insurance § 32.1, at 13-14 (2d ed.2001) [hereinafter Widiss]. Under such a contract, Shatzer is entitled to receive compensation he would have recovered from the owner or operator of an underinsured motor vehicle because of bodily injury. See id. § 39.1, at 309. We must determine the amount Shatzer was legally entitled to recover from the tortfea-sors for the wreck.

In Iowa, an award of damages for future pain and suffering must be reduced to present value pursuant to Iowa Code section 624.18(2). This section is applicable to actions filed after July 1, 1997. 1997 Iowa Acts ch. 197, § 16 (codified at Iowa Code § 624.18(2)). When the accident occurred on May 3, 1997, the statute was not yet in effect. Shatzer’s insurance contract provides coverage for

compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be caused by the accident and arise out of the ownership, maintenance or use of the underinsured motor vehicle.

Shatzer filed suit against the tortfeasors on June 6, 1997. Because the suit against the tortfeasors was initiated before the effective date of the statute, Shatzer was legally entitled to recover damages for his injuries without a reduction of future damages to present value. In calculating Shat-zer’s future damages, the court imposed the requirements of Iowa Code section 624.18(2) when the statute was not then in effect. Consequently, the court erred in reducing the future pain and suffering award from $30,000 to $7500. We reverse and remand for the entry of judgment without said reduction.

IV. Limits of Liability

While Shatzer recuperated from the injuries sustained in the accident, he received disability benefits from his employer, John Deere & Company. Globe filed a motion for partial summary judgment seeking a determination the award should be reduced by the amount of disability benefits Shatzer received from his employer. The court denied Globe’s motion finding the language of the policy did not require Shatzer to reimburse the insurer for any disability benefits received by his employer. Globe cross-appeals.

This issue presents a question of contract interpretation. The pertinent insurance contract provision provides UIM coverage will be reduced by “[ajmounts paid or payable under any workers’ compensation, medical or disability benefits law, or any similar law.” (Emphasis added.) Globe contends this provision contemplates the type of disability benefits Shatzer received from his employer. We must determine whether Globe’s insurance policy provision requires an offset for benefits received pursuant to a private contract.

We have not before examined the policy provision at issue under the present facts. We have, however, addressed this issue with regard to workers’ compensation, social security benefits, and “disability benefits.” In Matthess v. State Farm Mutual Automobile Insurance Co., we held a policy provision which provided for reduction for workers’ compensation benefits received is valid as it fulfilled the object of avoiding duplication of insurance. Matthess v. State Farm Mut. Auto. Ins. Co., 548 N.W.2d 562, 565 (Iowa 1996). In another case involving uninsurance, we held the insurer may receive credit against the insured’s social security disability benefits attributable to the accident. Gentry v. Wise, 537 N.W.2d 732, 737-38 (Iowa 1995). Similarly, where an insurance policy provided a reduction for “disability benefits,” we held the insurer was permitted to reduce a jury verdict awarded in favor of the insured by the amount of disability benefits received under a disability policy. Jackson v. Farm Bureau Mut. Ins. Co., 528 N.W.2d 516, 517 (Iowa 1995). In each case, we permitted offset of benefits where the insurance contract explicitly named the particular type of benefit as an exclusion.

In the present case,-we must look to the language of the policy provision to determine whether the UIM benefits should be reduced by private disability benefits received by the insured. The well-known maxim of construction known as ejusdem generis has force in this case. This maxim aids in ascertaining the meaning of a statute or other written instrument, such as a contract. The rule in its most specific application means “of the same kind, class, or nature.” Under this doctrine, specific words following more general words restrict “application of the general term[s] to things that are similar to those enumerated.” Metier v. Cooper Transp. Co., 378 N.W.2d 907, 912-13 (Iowa 1985) (quoting 2A N.J. Singer, Sutherland Statutory Construction § 47.17 (4th ed.1984)); see Restatement (Second) of Contracts § 203(c), at 93 (1981); 3 Arthur L. Corbin, Corbin on Contracts § 547, .at 176 (1960). Applying this rule to the case before us, the issue becomes whether private disability benefits are of the same kind, class, or nature as payments made under “workers’ compensation, medical or disability benefits law or any similar law” so the terms can be grouped and considered together.

Insurers may include in their contracts “terms, exclusions, limitations, conditions, and offsets to avoid duplication of insurance or other benefits.” Iowa Code § 516A.2. However, the insurance contract must contain any limitations or exclusionary clauses in clear and explicit language. See Prudential Ins. Co. of Am. v. Martinson, 589 N.W.2d 64, 65 (Iowa 1999) (citations omitted); see also Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 461 N.W.2d 291, 294 (Iowa 1990) (exceptions and conditions,in insurance policies will be enforced only if the language is clear and unambiguous). Provisos not included in the insurance contract will not be enforced. 3 Widiss § 41.7, at 431.

In the case before us, the language of the policy provision does not clearly and unambiguously provide UIM benefits will be reduced by the amount of private disability benefits received by the insured from his or her employer. The insurance contract states Globe’s limit of liability payable for UIM coverage will be reduced by “amounts paid or payable under any workers’ compensation, medical or disability benefits law or any similar law.” It clearly does not count private disability benefits as a reduction.

In conclusion, we find Globe is not expressly authorized or permitted to offset the private benefits Shatzer received from his employer. The offset provision is inapplicable as to the private disability benefits received by Shatzer. Since we find there is no genuine issue of material fact, we conclude the district court properly denied Globe’s motion for partial summary judgment.

We affirm on the cross-appeal, reverse on the appeal, and remand for the entry of judgment without said reduction.

Costs taxed against appellee.

REVERSED ON APPEAL, AFFIRMED ON CROSS APPEAL, AND REMANDED.

      . Globe contends Shatzer could have prevented this result by initiating suit against Globe at the same time Shatzer sued the tortfeasors on June 6, 1997.

      . The insurance contract here reduced coverage for amounts paid under any "medical or disability benefits law." (Emphasis added.)


author: STREIT, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. Mark Paul HISCHKE, Appellant.
    No. 00-1924.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Randall Jackson, Assistant County Attorney, for appellee.
   STREIT, Justice.

Mark Hischke made an eleventh-hour decision to deny possession of marijuana after previously admitting to the police and his lawyer the marijuana belonged to him. Hischke’s trial counsel, John Bishop, informed the court Hischke intended to commit perjury. After a jury trial, the court convicted Hischke of possession of marijuana. Hischke appeals contending he was denied effective assistance of counsel when his trial lawyer alerted the court to his “personal belief’ Hischke planned to present perjured testimony. Because we find Bishop had good cause to believe Hisch-ke’s proposed testimony would be deliberately untruthful, we affirm.

I. Facts

On December 5, 1999, Waterloo police officers executed an arrest warrant on Eric Twesme at his apartment. When the officers arrived, Twesme and Mark Hisch-ke were present in the apartment. Twesme answered the door and permitted the officers to enter. In the apartment, the officers saw syringes, spoons, and cotton. The officers asked Hischke to wait in the hallway where he consented to a search of his person. The officer discovered a syringe in Hischke’s shirt pocket. Before going to the police station, Twesme asked the officers for a jacket. One of the officers saw a leather jacket in the apartment draped over the back of the chair where Hischke had been sitting. The officer asked Twesme if the jacket was his and Twesme said it did not belong to him. Hischke admitted ownership of the jacket but said he was not responsible for anything in the pockets. During a consent search, the police officer found a small bag of marijuana in the jacket.

Mark Hischke was charged with possession of marijuana in violation of Iowa Code section 124.401(5) (Supp.1999). On the day the trial was scheduled to begin, Hischke’s attorney, John Bishop, moved to withdraw from the case. Bishop stated his client initially claimed ownership of the marijuana but shortly before the trial Hischke denied ownership. Bishop explained to the court,

It’s my personal belief that Mr. Hisch-ke’s original statements to me that the marijuana was his was the truth, and if Mr. Hischke requires me to present evidence otherwise I think I would be presenting perjured testimony, and so I don’t feel I can ethically be permitted to do that. But Mr. Hischke wishes to present that defense and that’s, I guess, the dilemma we have here.

The district court informed Hischke he would not be permitted to testify as to the ownership of the marijuana. Hischke declined to testify and the jury found him guilty as charged.

On appeal, Hischke contends he was denied effective assistance of counsel when Bishop informed the court he believed his client was going to present perjured testimony. Hischke argues it is not sufficient for an attorney to merely “believe” a client intends to commit perjury. Hischke asks us to adopt a standard that requires an attorney to have “actual knowledge” the client’s testimony will be false. Hischke argues prejudice should be presumed.

The State contends an attorney need only have a “firm factual basis” for believing a client plans to lie before taking any measures designed to prevent such perjury. The State argues Bishop satisfied this standard.

II. Scope of Review

We review claims of ineffective assistance of counsel de novo. State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001) (citing State v. DeCamp, 622 N.W.2d 290, 292 (Iowa 2001)). Ordinarily, we prefer to leave ineffective assistance of counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 785 (Iowa 2001) (citing State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997)). We will review such claims on direct appeal if the record is clear and trial counsel’s actions cannot be explained by plausible strategic or tactical considerations. Id.

III. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, Hischke must demonstrate both ineffective assistance and prejudice. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). Both elements must be proven by a preponderance of the evidence. Id. If a claim lacks one of the elements of an ineffective assistance of counsel claim, it is not necessary for us to address the other element. Id.

Hischke must first prove Bishop’s performance was not within the normal range of competence. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). We measure the attorney’s performance by standards of reasonableness consistent with “prevailing professional norms.” Ledezma, 626 N.W.2d at 142 (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)). We begin our analysis with the presumption Bishop performed competently. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. Claims of ineffective assistance of counsel are more likely to be found where counsel lacked diligence as opposed to the exercise of judgment. Ledezma, 626 N.W.2d at 142 (citing 3 Wayne R. LaFave et al., Criminal Procedure § 11.10(c), at 714 (2d ed.1999)).

Bishop believed his client planned on committing perjury. Trial counsel may not knowingly present perjured testimony. See Nix v. Whiteside, 475 U.S. 157, 174-75, 106 S.Ct. 988, 998, 89 L.Ed.2d 123, 139-40 (1986); Iowa Code Prof'l Resp. DR 7-102(4), 7-102(7). When counsel knows a client has committed perjury or plans on doing so, counsel may reveal the perjury to the court. Nix, 475 U.S. at 174,106 S.Ct. at 998, 89 L.Ed.2d at 139; Iowa Code Profl Resp. DR 4-101(A). On this appeal, we must determine whether Bishop performed competently and reasonably in deciding to inform the court his client intended to present perjured testimony.

The central issue before us is what standard of knowledge is required before a lawyer may inform the court of his or her client’s plan to commit perjury. There are several factors to consider in making this determination: (1) how certain counsel was the proposed testimony was false; (2) at what stage of the proceedings counsel discovered the plan; and (3) the ways in which the attorney may be able to dissuade his or her client from committing perjury. See Nix, 475 U.S. at 188-89, 106 S.Ct. at 1005, 89 L.Ed.2d at 148-49.

Other jurisdictions have addressed the standard to be applied when a lawyer informs the court his or her client intends to commit perjury. Some courts require a lawyer to have knowledge “beyond a reasonable doubt” before disclosing to the court the belief a client is planning on committing perjury. See, e.g., Shockley v. State, 565 A.2d 1373, 1379 (Del.1989); Commonwealth v. Alderman, 292 Pa.Super. 263, 269, 437 A.2d 36, 39 (1981). Other courts have adopted the “firm factual basis” standard. See, e.g., United States v. Long, 857 F.2d 436, 445 (8th Cir.1988) (“clear expression of intent to commit perjury” is required before a lawyer may alert the court); U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir.1977); State v. James, 48 Wash.App. 353, 367, 739 P.2d 1161, 1169 (1987). Another court requires a “good faith determination” by counsel the defendant will commit perjury when he testifies. People v. Bartee, 208 Ill.App.3d 105, 107-08, 153 Ill.Dec. 5, 566 N.E.2d 855, 857 (1991). Certain other courts require counsel to engage in an independent investigation of the facts before determining the defendant’s anticipated testimony will constitute perjury. See, e.g., State v. DeGuzman, 68 Haw. 14, 17, 701 P.2d 1287, 1291 (1985); People v. Schultheis, 638 P.2d 8, 11 (Colo.1981). But see State v. Lloyd, 48 Md.App. 535, 546, 429 A.2d 244, 250 (1981) (lawyer’s decision not to call alibi witness to testify was justified where lawyer was convinced alibi witness would commit perjury); Alderman, 437 A.2d at 39 (it was not necessary for lawyer to conduct independent investigation of facts where lawyer knew beyond a reasonable doubt certain witness would perjure himself if called to testify and defendant’s change of story was implausible).

We have not addressed this particular issue in Iowa since 1978. At that time, we addressed this issue within the context of a case with factual circumstances very similar to the case before us. See State v. Whiteside, 272 N.W.2d 468, 470 (Iowa 1978). In Whiteside, the lawyer relied on the defendant’s pronouncement shortly before trial that was inconsistent with his story during the initial phases of the proceedings. In asserting self-defense the defendant initially claimed he “thought” the victim had a gun but he did not actually see the gun. Then, before trial, the defendant told counsel he intended to testify he did see a gun because without such testimony he was “dead.” Id. at 471. We concluded a lawyer is required to be convinced with good cause to believe the defendant’s proposed testimony would be deliberately untruthful. Id. Moreover, the lawyer was not required to conduct an independent investigation of the facts before determining his client planned to commit perjury. We reaffirm our holding in Whiteside.

We now turn to the facts before us to determine whether Hischke was denied effective assistance when Bishop alerted the court to Hischke’s plan to testify falsely. These are the relevant facts as they occurred before Hischke’s change in story. Immediately before Hischke’s arrest, he told the police officers he owned the leather jacket but was not responsible for anything inside the pockets. This statement indicates Hischke was aware the officers would find something illegal in the jacket. Consistent with Hischke’s declaration of ownership, Twesme told the police officers the leather jacket did not belong to him. Hischke then wore the leather jacket to the police station. During his initial contact with Bishop, Hischke stated the jacket belonged to him.

Shortly before the trial was scheduled to begin, Hischke learned of the enhanced sentence that would accompany his third conviction on a charge of possession of marijuana. At this time Hischke changed his testimony and told Bishop the jacket did not belong to him. Hischke claims he had only been taking “the rap” for his friend Twesme but would no longer do so because of the enhanced punishment Hischke faced. This statement is questionable because of its lateness.

In addition to the facts above, other factors contributed to Bishop’s objectively reasonable basis for believing Hischke intended to commit perjury. The police officers found a syringe in Hischke’s shirt pocket when they patted him down outside of the apartment. Hischke was visiting a friend who had an outstanding warrant for selling morphine and who lives in an apartment openly littered with drug paraphernalia. As stated above, this was not Hischke’s first brush with the law. He has two prior marijuana convictions.

Given these facts, we find Bishop performed competently and reasonably in deciding to inform the court of Hischke’s recent change in testimony. Bishop’s belief was reasonable under these circumstances. He did not merely suspect or guess Hischke would commit perjury. The facts do not support a finding it was simply Bishop’s “gut-level belief’ Hischke planned to commit perjury. See James, 739 P.2d at 1169. Moreover, his decision to act on this personal belief is entirely consistent with “prevailing professional norms.” Ledezma, 626 N.W.2d at 142 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Bishop was “convinced with good cause to believe defendant’s proposed testimony would be deliberately untruthful.” Whiteside, 272 N.W.2d at 471. Further, it was not necessary for Bishop to conduct an independent investigation of the facts.

We decline to adopt the standard of “actual knowledge” suggested by Hischke. Such a standard would be virtually impossible to satisfy unless the lawyer had a direct confession from his or her client or personally witnessed the event in question. Consequently, the standard of actual knowledge would eviscerate the rules of professional responsibility forbidding a lawyer from presenting perjured testimony.

In finding Bishop’s performance was within the normal range of competence we are not stating Bishop was required to take the particular course of action he chose to pursue. This has not been presented to us. We recognize when counsel is faced with the situation of client perjury, he or she has competing interests at stake. Counsel must contend with duties of zealous advocacy, confidentiality, and loyalty to the client. On the other hand, these interests are counter-balanced by duties of accountability to the courts and justice. In order to accommodate these competing interests, there are various appropriate options a lawyer may choose among to decide how to handle such a situation. See Model Rules of Profl Conduct R. 3.3 (1999).

IY. Conclusion

We conclude Hischke’s trial counsel acted reasonably when he informed the court his client intended to commit perjury. Hischke satisfied the requisite standard that a lawyer must be “convinced with good cause to believe the defendant’s proposed testimony would be deliberately untruthful.” Because we find Hischke was not denied effective assistance of counsel, we do not address whether Hischke has demonstrated prejudice. We affirm.

AFFIRMED.

All justices concur except CARTER, J., and LAVORATO, C.J., who concur specially.

CARTER, Justice

(concurring specially).

I concur in affirming defendant’s conviction.

This case vividly illustrates the difficulty in determining whether a lawyer has a sufficiently convincing reason to believe a client is about to commit perjury. I have no disagreement with the test, which the opinion of the court employs for making such determinations consistent with the lawyer’s ethical obligation. Nor do I question the conclusion of defendant’s counsel in the present case in the face of that test. The decision could have gone either way on these facts.

This case does not discuss, because the issue is not raised, whether the action that defendant’s counsel took upon becoming convinced of the impending perjury was proper. I am convinced that it was not. My disagreement with defense counsel’s action flows from a belief that it is never proper for counsel to advise the court that counsel believes a client will testify falsely. Such conduct will inevitably damage the client’s case beyond repair.

Counsel who reach the conclusion that a client is about to testify falsely should first attempt to dissuade the client from giving the offending testimony. If unsuccessful, counsel should attempt a quiet withdrawal from the representation. The reasons set forth in the application to withdraw should only identify the existence of an unspecified attorney-client disagreement that might compromise the attorney’s ethical responsibilities. At no time should the matter of impending perjury be disclosed. If the attempt to withdraw fails, then counsel should proceed with the case and conduct any questioning of the witness so as not to invite the suspected perjury. If the suspected perjury nonetheless occurs, counsel should make no reference of it in arguing the case to the trier of fact. I believe that if a lawyer proceeds in this manner, he or she may fully satisfy the lawyer’s ethical obligation to prevent perjury without the necessity of advising the court as to the client’s intent to testify falsely.

Lavorato, C.J., joins this special concurrence.

      . We do not rule on the appropriateness of the trial court's response because Hischke did not appeal this issue. For the same reason, we do not rule on the appropriateness of trial counsel’s reaction to the court's indication that Hischke would not be allowed to testify.


author: CADY, Justice.

text:
    In the Matter of the INQUIRY CONCERNING Patrick C. McCORMICK, District Associate Judge, Third Judicial District, Patrick C. McCORMICK, Respondent.
    No. 01-1301.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Thomas J. Miller, Attorney General, Roxann M. Ryan and Harold Young, Assistant Attorneys General, for the commission.
    Mayer Kanter, Sioux City, for respondent.
   CADY, Justice.

This is a judicial disciplinary action against a district associate judge for engaging in a political activity and misrepresentation. It is before us on an application by the state Judicial Qualifications Commission. The Commission recommended the judge be publicly reprimanded. We grant the application and agree on our review that the appropriate sanction for the unethical conduct engaged in by the district associate judge is a public reprimand.

I. Background Facts and Proceedings.

Patrick C. McCormick is a district associate judge in the third judicial district of Iowa. He primarily holds court in Wood-bury County. He was appointed to the bench in 1996 after practicing law in Iowa for thirty years. His father was a district court judge before him, and his grandfather was an Iowa lawyer. He has had no prior discipline imposed against him either as a judge or as a lawyer. Judge McCormick is married and lives with his wife in Sioux City.

Prior to the November 2000 elections, Judge McCormick was contacted by a campaign worker for Woodbury County Sheriff David Amick. Sheriff Amick was seeking reelection to office and was involved in a contested race. The campaign worker asked Judge McCormick if the campaign could place a sign supporting Sheriff Amick in the election outside Judge McCormick’s home. Judge McCormick and Sheriff Amick were close professional friends, and Judge McCormick was the chairperson of a local committee that was considering the construction of a new county jail. Judge McCormick also had a son who worked for the sheriffs office. Judge McCormick consented to the campaign worker’s request, and a campaign worker subsequently placed a sign in the front yard of his home. Judge McCormick believed the sign was proper as long as his wife also consented. His wife did not object to the sign after it was placed in the yard of their home.

On January 16, 2001, the Commission wrote Judge McCormick to advise him it was investigating a complaint it received regarding the campaign sign in his yard. The investigation was conducted by the Iowa Attorney General’s office, which was assisted by the Department of Criminal Investigation.

On February 5, 2001, Judge McCormick wrote a letter to the Commission. He acknowledged the presence of the campaign sign in his front yard prior to the November election, but explained that his wife had been contacted by a campaign representative and authorized placement of the sign.

On March 2, 2001, the chairperson of the Commission wrote Judge McCormick to inform him that the complaint against him had been dismissed based on a preliminary investigation. Coincidentally, on the same date, Judge McCormick wrote the Commission to explain that his earlier explanation for the sign was false, and that he was the person who consented to the placement of the sign in his yard. The two letters crossed in the mail.

Judge McCormick testified at the Commission hearing that he initially used his wife to excuse his conduct because he thought it was the easiest way to respond to the complaint. However, he decided to truthfully respond to the Commission after his conscience began to bother him. Judge McCormick said he had difficulty sleeping at night and working during the day after writing the first letter to the Commission. He finally wrote the second letter after seeking advice from another judge.

Following a hearing, the Commission found Judge McCormick violated the canons of judicial conduct by placing a political sign in his yard. See Iowa Code of Judicial Conduct, Canon 2(B) (lending prestige of office to advance interests of others); Canon 7(A)(1)(b) (judge should not publicly endorse a candidate for public office); Canon 7(A)(3) (judge should not engage in political activity). It also found Judge McCormick violated the canons of judicial conduct by misrepresenting the circumstances surrounding the sign place-merit to the Commission in his letter of February 5, 2001. See Canon 1 (judge should obey high standards of conduct); Canon 2(A) (judge should act to promote public confidence and integrity of the judiciary). The Commission also found both acts violated Iowa Code section 602.2106(3)(b) (2001) (willful misconduct in office and conduct which brings office into disrepute).

The Commission recommended that Judge McCormick be publicly reprimanded. It relied on Judge McCormick’s efforts to rectify his misrepresentation to the Commission as a mitigating factor.

II. Scope and Standard of Review.

Our standard of review of a recommendation of judicial discipline by the commission on judicial qualifications is de novo. In re Inquiry Concerning Holien, 612 N.W.2d 789, 790 (Iowa 2000). Ethical violations must be proven by a convincing preponderance of the evidence. In re Inquiry Concerning Stigler, 607 N.W.2d 699, 705 (Iowa 2000).

III. Violations.

A. Political activities.

The strength of our judicial system is due in large part to its independence and neutrality. See Charles W. Wolfram, Modem Legal Ethics § 17.5.1, at 980 (1986) [hereinafter Wolfram]. These twin qualities help remove outside influences from judicial decision-making, and promote public respect and confidence in our system of justice. Yet, judicial independence does not come without some personal sacrifice by judges. Judicial independence and neutrality require judges to limit or abstain from involvement in a variety of activities commonly enjoyed by others in the community, including politics.[] See id. Thus, beyond voting, judges must generally eschew most political connections. Id. § 17.5.4, at 986. The only exceptions in Iowa are political activities geared toward improving the law, the legal system, or the administration of justice, and some limited activities by judges in response to active opposition in their own retention elections. See Canon 7(A)(3), 7(B)(2). Canon 7(A) of the judicial code prohibits other political activities by judges, as a means to help maintain an independent judiciary and public respect and confidence in it. See Wolfram, § 17.5.4, at 986-87.

Under Canon 7(A)(1)(b) and (3), a judge may not publicly endorse a candidate for public office or engage in any other common political activities. Thus, a judge who allows a candidate for public office to place a sign in support of the candidate outside the judge’s home publicly endorses a candidate for public office and engages in a prohibited political activity.[] Judge McCormick clearly violated Canon 7. This activity also violated Canon 2(B). A judge lends the prestige of his or her office to advance the private interests of others by publicly endorsing a candidate for a public office. See Canon 2(B).

B. Misrepresentation.

A judge who makes a false statement to a judicial commission engages in conduct that adversely impacts the integrity of the judiciary and erodes public confidence in the judicial process. See Canon 1 (judge should uphold the integrity and independence of the judiciary); Canon 2(A) (judge should act in a manner promoting public confidence in the judiciary). Truth and honesty lie at the heart of the judicial system, and judges who conduct themselves in an untruthful manner contradict this most basic ideal. Consequently, a judge who misrepresents the truth tarnishes the dignity and honor of his or her office.

The evidence in the case clearly reveals Judge McCormick made a false statement in the letter he wrote to the Commission. He violated Canon 1 and Canon 2(A). The false letter also constituted willful misconduct, as well as conduct which brings the judicial office into disrepute, in violation of section 602.2106(3)(b). Thus, we turn to consider the sanction to impose.

IV. Sanction.

The focus of sanctions in judicial disciplinary proceedings is not to punish the individual judge, but to restore and maintain the dignity, honor, and impartiality of the judicial office, and to protect the public from further excesses. In re Stigler, 607 N.W.2d at 710; In re Horned, 357 N.W.2d 300, 302 (Iowa 1984). Thus, the sanction imposed must be commensurate with the conduct involved so that the integrity of the entire judicial process will be vindicated and reaffirmed. See In re Inquiry Concerning Eads, 362 N.W.2d 541, 551 (Iowa 1985).

Our prior cases have identified both aggravating and mitigating factors that bear upon the appropriate sanction in a particular case. See In re Holien, 612 N.W.2d at 793 (conduct in the performance of judicial duties prejudicial to the administration of justice); In re Stigler, 607 N.W.2d at 710 (conduct that denies individuals fundamental procedural rights; length and character of judge’s service); In re Carstensen, 316 N.W.2d 889, 895 (Iowa 1982) (persistent pattern or practice of conduct). Some courts have distilled these factors, and others, into a nonexclusive list to consider in imposing discipline on a judge. This list is a helpful guide in structuring the appropriate discipline in a particular case. The factors include:

(a) whether the misconduct is an isolated instance or evidenced a pattern of [mis]conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge’s official capacity or in his [or her] private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his [or her] conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his [or her] position to satisfy [any] personal desires.

In re Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987); accord In re Chaisson, 549 So.2d 259, 266 (La.1989) (adopting criteria established in Deming); In re Brown, 461 Mich. 1291, 625 N.W.2d 744, 745 (1999) (listing similar criteria, and referencing American Judicature Society, How Judicial Conduct Commissions Work 15-16); see also ABAJBNA Lawyers’ Manual on Professional Conduct 01:838-39 (aggravating factors), 01:839^40 (mitigating factors) (1992). Nevertheless, in the end, each case must be carefully analyzed based on the particular transgressions involved. In re Stigler, 607 N.W.2d at 710.

Examined in light of the relevant factors, the misrepresentation in this case was clearly the most serious infraction. The political activity engaged in by Judge McCormick was a single, isolated event that occurred outside the courtroom in the course of his private life. Judge McCormick acknowledged his wrongdoing and was committed to refrain from engaging in the conduct again. Although most political activities undermine the integrity of the judicial system, the political activity engaged in by Judge McCormick in this case was not extensive or pervasive. Where a violation involves conduct that is negligent in nature, with little known injury, an admonition or a private reprimand is normally appropriate. See In re Inquiry Concerning a Judge, 788 P.2d 716, 725 (Alaska 1990).

Misrepresentation, on the other hand, is a more serious violation. A dishonest judge directly threatens public confidence in the judicial system and tarnishes its respect and integrity. See In re Kroger, 167 Vt. 1, 702 A.2d 64, 72 (1997). The harm is extensive. Even a single incident can have grave consequences. Id. Notwithstanding, there are mitigating factors in this ease. Foremost is the evidence that Judge McCormick corrected his misrepresentation before it was discovered and at a time when his sole motivation to do so was his personal distaste for his prior actions and his desire for the truth to be spoken so the Commission could base its decision upon the truth. Furthermore, the conduct did not involve misrepresentation while under oath. Cf id. (judge failed to tell truth after taking an oath to tell the truth when testifying as a witness at a public hearing). It was also an isolated act, uncharacteristic of his long, exemplary career as a lawyer and judge. Judge McCormick was profusely apologetic, and recognized the harm he caused.

We have not previously disciplined a judge for the type of conduct engaged in by Judge McCormick in this case. Yet, our review of sanctions imposed in other jurisdictions for misconduct involving deceit have ranged from reprimands, to suspensions, to removal, depending on the particular circumstances involved. See Adams v. Comm’n on Judicial Performance, 10 Cal.4th 866, 42 Cal.Rptr.2d 606, 897 P.2d 544, 568, 571 (1995) (removal of judge who provided false information to the judicial qualifications commission); In re Frank, 753 So.2d 1228, 1242 (Fla.2000) (public reprimand for judge for making false statement to grievance commission); In re Ford-Kaus, 730 So.2d 269, 277 (Fla.1999) (removal of judge who demonstrated a pattern of deceit); In re Inquiry Concerning Fowler, 602 So.2d 510, 510-11 (Fla.1992) (public reprimand for judge who pled guilty to offense of furnishing false information to a police officer about an accident); In re Bybee, 716 N.E.2d 957, 962-63 (Ind.1999) (public reprimand for a judge for misrepresentation contained in a campaign brochure concerning another candidate for judicial office); In re Brennan, 433 Mich. 1204, 447 N.W.2d 712, 713-14 (1989) (public censure for law review article by judge containing plagiarized material); Kroger, 702 A.2d at 73 (one-year suspension for judge who presented false testimony at grievance commission hearing); In re Disciplinary Proceeding Against Ritchie, 123 Wash.2d 725, 870 P.2d 967, 968 (1994) (repeated misrepresentations warranted removal from bench); In re Disciplinary Proceedings Against Dreyfus, 182 Wis.2d 121, 513 N.W.2d 604, 605 (1994) (fifteen-day suspension for filing false case reports).

Similarly, our discipline of lawyers in Iowa for conduct involving misrepresentation has covered the full spectrum of sanctions, from reprimands to revocation. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ackerman, 611 N.W.2d 473, 474 (Iowa 2000). We have said misrepresentation by an attorney constitutes seri ous misconduct. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306, 308 (Iowa 1996). Misrepresentation is serious misconduct because “[fjundamental honesty is the base line and mandatory requirement to serve in the legal profession.” Comm, on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990). “The court system and the public [it] servefe] are damaged when our officers play fast and loose with the truth.” Id. Clearly, these same observations we have made about lawyers apply to judges. Likewise, the resulting sanctions should typically be comparable. Generally, the sanctions we have imposed for lawyers have varied due largely to the nature of the misrepresentation and whether it involved a pattern of conduct. See Ackerman, 611 N.W.2d at 474-75. This same approach can generally be observed in those cases by courts from other jurisdictions involving misrepresentation by judges.

Considering all the circumstances in this case, we conclude a public reprimand is a more appropriate sanction than a suspension, although the decision is very close. In reaching this conclusion, we give weight to the recommendation of a public reprimand by the Commission. Furthermore, the circumstances of this case are more aligned with those cases from other jurisdictions that imposed a public reprimand for similar misconduct. Finally, there are mitigating factors previously identified that support the imposition of a public reprimand. Although Judge McCormick’s indiscretion in submitting false information to the Commission was serious, he revealed his true character by his subsequent actions in revealing the truth. Consequently, we reprimand Judge McCormick for his conduct.

JUDICIAL OFFICER REPRIMANDED.

      . The Anglo-American paragon for a judge is a person who is "learned in the law" and is "independent of governmental, political, social, economic, [and] other predisposing influences.” Wolfram, § 17.5.1, at 980. This independence allows a judge to decide cases based solely on legal principles and judicial experience and thinking. Id. Consequently, the judicial canons that have developed in our country not only limit the manner in which a judge may be involved in politics, but also in finance, business, the practice of law, and many other public and private activities. Id. The broad nature of the restricted activities poignantly reveals the extent of the personal sacrifice that can be made by judges to maintain judicial independence.

      . We do not address those circumstances governing the responsibilities of a judge whose spouse places a political campaign sign in the yard of the marital home. Judge McCormick testified he was responsible for placing the sign in this case, and we confine our analysis to the facts of this case.