author: WIGGINS, Justice. CARTER, Justice

text:
    UNITED FIRE & CASUALTY COMPANY, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.
    No. 03-0602.
    Supreme Court of Iowa.
    April 7, 2004.
    Rehearing Denied April 26, 2004.

      Maureen Roach Tobin of Whitfield & Eddy, P.L.C., Des Moines, for appellant.
    Peter M. Sand and Anita L. Dhar of Grefe & Sidney, P.L.C., Des Moines, for appellee.
   WIGGINS, Justice.

In this appeal, we must decide whether a settlement agreement approved by the workers’ compensation commissioner pursuant to Iowa Code section 85.35 (1999) barred a subsequent claim by the employer and its insurer for indemnification under section 85.21(3). The district court concluded the employer and its insurer could seek indemnification from the other insurer following the approval of a compromise special case settlement. We disagree, reverse the decision of the district court, and remand the case for entry of judgment for United Fire & Casualty Company (United Fire).

I. Background Facts and Proceedings.

On September 14, 1995, Patricia Akers (Akers) injured her back while employed for Woodmarc. Akers’ injury occurred while she was wiping wood stain from a cabinet. USF&G insured Woodmarc. Since that time, St. Paul Fire and Marine Insurance Company (St. Paul) acquired USF&G. Akers’ treating physician, Dr. Donna Bahls, diagnosed Akers with low back strain and degenerative joint disease of the lumbar spine. Dr. Bahls recommended conservative treatment. On May 10, 1996, Dr. Bahls opined, “I feel that she is at maximum medical improvement as far as her lumbar strain is concerned, and I do not feel that there is a permanent impairment rating to be rendered.” Akers quit her employment with Woodmarc, because she could not handle her pain. Akers filed a claim for workers’ compensation benefits against Woodmarc and St. Paul for the September 14,1995, injury.

On February 19, 1998, Akers suffered a new onset of pain in the same area as her 1995 injury, while employed for Coon River Bar & Grill, which was insured by United Fire. This injury occurred when she lifted a box of cola syrup. United Fire sent her to Dr. Lynn Nelson for treatment. Dr. Nelson determined that no significant aggravation of her prior back condition had occurred and released her from care. Dr. Nelson opined, “[H]er low back discomfort is most likely related to the degenerative disc disease. I do not feel that work restrictions are related in regards to her [1998] work injury.” Akers never filed a claim for workers’ compensation benefits against Coon River Bar & Grill or United Fire for the February 19, 1998, injury.

On November 2, 1998, Akers sought care from Dr. Daniel McGuire, who recommended spinal fusion surgery. Dr. McGuire performed the fusion on January 21, 1999. In a July 28, 1999, letter to Akers’ attorney, Dr. McGuire characterized the 1995 injury as “probably the main event” causing her injury. He stated, “It would appear that her low back complaints have been fairly consistent as you have documented since the work incident at Woodmarc almost four years ago.” He concluded Akers had a two percent impairment after the fusion surgery. He also restricted her lifting, bending, sitting, and twisting. At Dr. McGuire’s first deposition on September 20, 1999, he confirmed the opinions he gave in his July 28, 1999, letter.

On September 27, 1999, St. Paul filed an application for an order under Iowa Code section 85.21 to pursue United Fire for indemnification or contribution. The Iowa Workers’ Compensation Act allows an employer or carrier to seek an order from the workers’ compensation commissioner allowing it to file a contested case proceeding against another employer or carrier who may be responsible for all or part of the benefits paid to an employee by the requesting employer or carrier. Iowa Code § 85.21(3). St Paul’s application alleged that “claimant’s industrial disability and majority of medical expenses are due to a February 19, 1998, injury while working for Coon River Bar & Grill ... and [St. Paul] intendfs] to pursue reimbursement of the benefits paid from Coon River Bar & Grill and [United Fire] pursuant to this Order.” The deputy commissioner issued. an Order approving’ this request on September 27,1999.

Instead of filing its section 85.21 action against United Fire, St. Paul pursued a settlement with Akers. On October 5, 1999, St. Paul, Woodmarc, and Akers filed a compromise special case settlement agreement with the workers’ compensation commissioner pursuant to Iowa Code section 85.35. The bona fide dispute alleged in the agreement was whether the claimed injury arose out of or in the course of Akers’ employment with Woodmarc. The compromise special case settlement agreement specifically stated the agreement covered the September 14, 1995,’ injury date. The compromise special case settlement included the following clause:

The parties agree that all payments made in the amount of $39,972.42 are made pursuant to an already filed order per § 85.21 of the Code. It is understood between these parties that the insurance carrier of the employer will proceed pursuant to that code section with a'claim against United Fire and Casualty and Coon River Bár and Grill for payments of benefits arising from an injury date [of] 2/19/98.

The workers’ compensation commissioner approved the compromise special case settlement on October 6,1999.

On November 4, 1999, St. Paul filed its section 85.21 contested case action against United Fire with the workers’ compensation commission. St. Paul sought indemnification from United Fire for the entire amount it paid Akers under the compromise special case settlement. In connection with the section 85.21 action, Dr. McGuire gave a second deposition in October of 2001. St. Paul’s attorney conducted the direct examination. On direct examination, Dr. McGuire stated Akers’ 1998 injury was an “aggravation” of the 1995 injury. He also conceded both the 1995 and 1998 injuries represented significant reasons why he performed the surgery on Akers. On cross-examination by United Fire’s attorney, however, Dr. McGuire identified the precipitating event for the surgery as the 1995 injury. Dr. McGuire also reiterated he would not have recommended surgery absent a four to five-year history of problems relating to the 1995 injury.

United Fire moved for summary judgment, which the commissioner denied. The matter proceeded to hearing on December 18, 2001. On' February 6, 2002, the deputy workers’ compensation commissioner filed his decision. The deputy interpreted section 85.35 and concluded a compromise special case settlement under section 85.35 did not constitute a final bar to St. Paul’s right to indemnification or contribution under section 85.21(3). The deputy found both the 1995 injury at Woodmarc and the 1998 injury at Coon River Bar & Grill to be significant causes of Akers’ disability. The deputy further found the commuted value of Ak-ers’ weekly benefits' for the industrial disability caused by both injuries exceeded the cash paid to Akers by St. Paul under the compromise special case settlement. The deputy noted the full responsibility' rule applies to situations when there are two different injuries with two different employers. He then found that the disability caused by the 1995 injury was not ascertainable; thus, he was unable to apportion the disability between the two injuries. For these reasons, the deputy ordered United Fire to reimburse St. Paul the entire amount St. Paul paid to Akers pursuant to the compromise special case settlement.

United Fire appealed within the agency and on October 2, 2002, the workers’ compensation commissioner issued its appeal decision affirming and adopting the arbitration decision as the final agency action. The appeal decision stated:

It would have been preferable for St. Paul to have brought its action for reimbursement by asserting a date of injury of February 19, 1998, rather than September 14,1995. United Fire and Casualty was not deceived or prejudiced, however, because the nature and theory of St. Paul’s claim was concisely stated. That error, if it was an error, does not require a different outcome.

On judicial review, the district court affirmed the agency decision. United Fire appeals.

II.Issues.

We must determine whether approval of the compromise special case settlement barred St. Paul’s right to indemnification or contribution, under section 85.21(3). If that right is not barred, we must next determine whether there was substantial evidence to support the agency’s findings that the 1998 incident caused Akers’ industrial disability or medical expense.

III. Scope of Review.

Our review of a district court’s decision on judicial review of an agency decision is to correct erroneous interpretations of law. Iowa Code § 17A.19(8)(6) (2001). The commissioner’s factual findings are binding on this court if supported by substantial evidence. See Iowa Code § 17.-A.19(10)(/)(l) (defining substantial evidence as “the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance”). “The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity.” Iowa Code § 17A.19(8)(a).

IV. Statutory Interpretation.

Our goal in interpreting the Workers’ Compensation Act “is to determine and effectuate the intent of the legislature.” Aluminum, Co. of Am. v. Quinones, 522 N.W.2d 63, 65 (Iowa 1994). “We look to the object to be accomplished, the mischief to be remedied, or the purpose to be served, and place on the statute a reasonable or liberal construction which will best effect, rather than defeat, the legislature’s purpose.” Beier Glass Co. v. Brundige, 329 N.W.2d 280, 283 (Iowa 1983). Moreover, the court interprets workers’ compensation law according to the language the legislature has chosen. Zomer v. West River Farms, Inc., 666 N.W.2d 130,133 (Iowa 2003).

Finally, we must determine whether we will give deference to the agency’s interpretation of section 85.35. Iowa Code § 17A.19(11). Given that the legislature did not vest discretion with the agency to interpret this section, we must determine if we will defer to the agency’s interpretation pursuant to section 17A.19(11)(&). We conclude we will not defer to the agency’s interpretation, because the statute is clear, detailed, does not need “special expertness for adequate comprehension,” and is not “highly technical.” Mosher, 671 N.W.2d at 510-11.

Y. Analysis.

Although we have never decided the effect of a special case settlement on the employer’s and its insurer’s right to indemnification or contribution under Iowa Code section 85.21, we have examined their right to indemnification under section 85.22. Bankers Standard Ins. Co. v. Stanley, 661 N.W.2d 178 (Iowa 2003). Under section 85.22(1), if an employee recovers damages from a third party for an injury, for which the employee received workers’ compensation benefits, the employee is required to repay the employer and its insurer from the recovery an amount equal to the workers’ compensation benefits the employee received, less attorney fees. Iowa Code § 85.22(1). A compromise special case settlement, however, bars indemnity claims by an employer and its insurer under section 85.22(1). Bankers Standard Ins. Co., 661 N.W.2d at 183. A compromise special case settlement not only precludes the right of the employer and its insurer to be indemnified by the employee when the employee receives funds from a third party, it also precludes the right of the employer and its insurer to pursue any legal right to indemnification against a third party. Id. at 182-83. Once the parties enter into a compromise special case settlement, the employee is free to pursue a claim against a third party without the requirement of reimbursing the employer and its insurer. The employer’s and its insurer’s relinquishment of their right to indemnification is part of the consideration an employee receives when the parties enter into a special case settlement. Id. at 182.

Section 85.21(3) creates the right to indemnification or contribution for a payor of benefits against another employer or its insurer who may be liable to the employee for all or part of the benefits paid by the payor. Iowa Code § 85.21(3). St Paul attempts to distinguish our holding in Bankers Standard, because the two parties to the compromise special case settlement in the present case are not the same parties to the section 85.21(3) action. This is a distinction without meaning.

Bankers Standard makes it clear that a compromise special case settlement bars the right to indemnification under section 85.22(1). Bankers Standard, 661 N.W.2d at 182-83. The extinguishment of the right to indemnification includes any right the employer and its insured may have against third parties. Id. Bankers Standard’s reasoning is equally applicable to St. Paul’s right to indemnification or contribution under section 85.21(3). Under the plain language of section 85.35, the compromise special case settlement “constitute[s] a final bar to any further rights arising under” chapter 85, including St. Paul’s right to indemnification or contribution under section 85.21(3).

St. Paul also argues Banker’s Standard is distinguishable from the present case, because the language in the compromise special case settlement agreement preserved St. Paul’s right to proceed against United Fire under section 85.21. We do not find this argument persuasive. The approval of the compromise special case settlement terminated the workers’ compensation commissioner’s jurisdiction over any claims arising out of a properly approved compromise special case settlement. White v. Northwestern Bell Tel. Co., 514 N.W.2d 70, 74 (Iowa 1994). The language of the compromise special case settlement cannot revive the commissioner’s jurisdiction for the 1995 injury. Id. at 75.

The only right St. Paul attempted to reserve in the compromise special case settlement was its right under section 85.21 to “proceed pursuant to that code section with a claim against United Fire and Casualty and Coon River Bar and Grill for payments of benefits arising from an injury date [of] 2/19/98.” Despite this language in the agreement, the approval of the compromise special case settlement by the workers’ compensation commissioner extinguished St. Paul’s right to indemnification and contribution .under section 85.21. Thus, we cannot give any force and effect to the language in the compromise special case settlement agreement that attempted to reserve St. Paul’s right to indemnification or contribution.

Because this analysis is dispositive of the appeal, we do not reach the substantial evidence issue.

VI. Disposition.

We conclude a compromise special case settlement under section 85.35 bars an employer’s or its insurer’s statutory right to indemnification and contribution under section 85.21(3). We reverse the judgment of the district court and remand the case for entry of judgment for United Fire.

REVERSED AND CASE REMANDED.

All justices concur except CARTER, J., who concurs specially.

CARTER, Justice

(concurring specially).

I concur in the result because Iowa Code section 85.22 only comes into play when “compensation is payable under this chapter.” With respect to a special case settlement, Iowa Code section 85.35 provides that “[s]uch payment shall not be construed as a payment of weekly compensation.” Consequently, I do not believe such payment constitutes compensation payable under chapter 85.

I cannot join the majority opinion because I am convinced that Bankers Standard Insurance Co. v. Stanley, 661 N.W.2d 178 (Iowa 2003), on which the court relies, was wrongly decided.

      . Practitioners commonly refer to a settlement under section 85.35 as a compromise special case settlement. 15 James R. Lawyer & Judith Ann Graves Higgs, Iowa Practice: Workers’ Compensation § 26-3, at 271 (2004).

      . See Venegas v. IBP, Inc., 638 N.W.2d 699, 701 (Iowa 2002) (stating "the employer liable for the current injury is also liable for any preexisting industrial disability caused by a work-related injury when that disability combines with industrial disability caused by a later injury”).

      . Our review of this case is controlled by the 1998 amendments made to chapter 17A. All citations to chapter 17A are to the 2001 Iowa Code. See Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 507 n. 1 (Iowa 2003).


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    STATE of Iowa, ex rel. Thomas J. MILLER, Attorney General of Iowa, and Craig A. Goettsch, Iowa Superintendent of Securities, Appellees, v. Edwin PACE, an Individual, Appellant.
    No. 02-1726.
    Supreme Court of Iowa.
    April 7, 2004.

      Dennis M. Lawyer of The Lawyer Law Firm, Indianola, for appellant.
    Thomas J. Miller, Attorney General, and Chantelle Smith and Benjamin E. Bellus, Assistant Attorneys General, for appellees.
   TERNUS, Justice.

The defendant, Edwin Pace, appeals a district court judgment finding he had violated various state laws in his marketing and sale of payphones, awarding monetary remedies and penalties, and granting in-junctive relief. He contends the district court erred (1) in ruling the program he sold — the sale and leaseback of payphones — was a security, and (2) in finding he was not entitled to the lack-of-knowledge defense available to “affiliates” under Iowa securities law. Pace also asserts the State failed to prove, he committed unlawful practices under Iowa’s consumer fraud law. Finally, he claims his due process rights were violated, as well as the constitutional prohibition against ex post facto laws. On our de novo review, we find no error in the trial court’s decision and, accordingly, we affirm.

I. ' Background Facts and Proceedings.

The defendant has been a licensed insurance agent for over twenty years. He was also licensed to sell securities for several years but his license had lapsed prior to the sales at issue in this case. During the period giving rise to this litigation, Pace marketed products primarily to the elderly and frequently represented himself as a “senior advisor.”

Beginning in 1997, but primarily in 1999 and continuing through June of 2000, the defendant sold payphones, known as customer-owned, coin-operated telephones (COCOTS), in Iowa. Three ownership options were available to Pace’s clients. Under the first option, the investor would own the payphone and be totally responsible for its placement and operation. Once a location was determined, however, a management company would provide services relating to installation, maintenance, and repair of the COCOT for $40-$50 per month. The investor assumed the risk of profit or loss under this plan. Under the second option, the investor paid the management company a monthly fee of $75-$82 to provide all the required services, including finding a location for the phone. As with the first option, the investor experienced any profits or losses generated by the COCOT. Under the third plan, the investor entered into an agreement to purchase a payphone and then simultaneously leased the payphone to a management company. The payphone was then delivered directly to the management company for placement and operation. During the three to five year term of the lease, the investor had no involvement in the day-today operation of the payphone; all management rights rested in the management company in exchange for a monthly payment of $75-$82 to the investor.

Although all three options were theoretically available to Pace’s clients, as a practical matter, investors were only interested in the sale/leaseback plan because they had no expertise in operating or ability to manage a payphone. Thus, Pace focused his sales presentations on the third option and, in fact, the only COCOTS actually sold by the defendant were under the sale/leaseback plan.

Pace worked with a number of marketing companies, including Tri-Financial Group, BEE Communications, and ATC, Inc. Each company selling payphones was associated or affiliated with a particular management company. Although Pace claimed only to sell payphones and to have no relationship with the management companies, he would forward a request for lease information directly to the management company upon an investor’s decision to go with the sale/leaseback option. Each payphone was sold for $5000 to $7000, and Pace earned a commission of between 10-12% on each sale.

On September 24,1999, the Iowa Securities Commission issued a cease and desist order to Tri-Financial Group and its management company, Phoenix Telecom. In this order the Commission asserted COCOTS were securities as defined in Iowa Code section 502.102(19) (1999), and they were not registered as required by Iowa Code section 502.206. Tri-Financial and Phoenix Telecom were alleged to have violated Iowa Code section 502.201 through their offer and sale of unregistered, nonexempt securities. They were ordered to cease and desist.

The Commission’s order was a public record, but Pace claimed to have no knowledge of it. Nonetheless, Pace made no further sales through Tri-Financial after this order was issued. He did, however, continue to sell COCOTS through other marketing companies.

On May 31, 2000, the Iowa Securities Bureau wrote to Pace informing him it had information he was selling COCOTS through BEE Communications and its management company, ETS Payphones, Inc., neither of which was registered to sell securities in the State of Iowa. The Bureau told the defendant it believed the sale/leaseback program he sold was an investment contract and subject to registration under Iowa Code chapter 502. -Pace was informed that the broker-dealer and agent licensing requirements -of section 502.301 may also have been violated, which could result in civil and criminal penalties. The letter ended by stating that Pace may be involved in activity that violates Iowa law and that if he had any questions about the legality of his activities, he may wish to consult an attorney. Shortly after Pace received this letter, he was notified by BEE Communications that it would not be selling COCOTS in Iowa until the questions raised by the Bureau had been resolved, even though no cease and desist order had been issued.

Pace contended at trial that based on these communications, he thought only payphones sold through BEE Communications did not comply with Iowa law and that the noncompliance was due to the company’s failure to make the required filings with the Bureau. He testified he thought other COCOTS were not affected by the Bureau’s inquiries, and therefore he continued to sell COCOTS through other marketing companies.

On July 10, 2000, Pace received a second letter from the Bureau, which was very similar to the first letter. The second letter, however, also made specific reference to ATC, Inc. and its management company, Alpha Telecom. Pace was again informed that these companies were not registered with the State of Iowa to sell securities; that sale/leasebacks of payphones were securities requiring registration of the security and the selling agent; and that by selling COCOTS, Pace may be in violation of Iowa law. The defendant stopped selling payphones after he received this letter.

Within several weeks two management companies, ETS and Alpha Telecom, declared bankruptcy. ETS claimed that it, not the investors, owned the payphones. (In fact, the bankruptcy court made a determination that the payphones were owned -by ETS.) After the bankruptcy proceedings were filed, the investors no longer received their monthly lease payments.

On September 17, 2001, the State filed a petition charging Pace with violations of the Iowa Uniform Security Act, Iowa Code chapter 502, the Iowa Business Opportunity Act, Iowa Code chapter 523B, and the Iowa Consumer Fraud Act, Iowa Code section 714.16. At trial, the'facts previously reviewed were brought out. ■ In addition, several investors testified about the information given to them by Pace. They said Pace told them they would own the payphones; they could cancel the lease at any time and-receive a refund of all or some portion of the purchase price; the management -companies were financially strong; there was little risk in this investment and the investors would receive a return of 13-14%; and that COCOTS were legal in Iowa. One witness testified that Pace even told an ' elderly investor that COCOTS were fully insured by Lloyds of London.'

Thé State also called a financial expert who had reviewed the financial statements of ETS. He testified that it was “obvious” the phone program could not be maintained without the continuous sale of payphones because the only way the lease payments could be made was through proceeds from future payphone sales.

In its subsequent decision, the district court made factual findings consistent with, our review of the pertinent facts. The court found that even though material was available to Pace indicating significant legal issues with COCOTS across the country, he continued to represent to prospective purchasers that there were no concerns with selling the product in Iowa. He also repeatedly represented to potential investors that they would realize immediate and significant income from the ownership of a COCOT, that the COCOT was a liquid and safe investment, and that the COCOT was recession proof.

With respect to the allegations of securities law violations, the district court concluded: (1) the sale/leaseback program was an investment contract subject to regulation under chapter 502, see Iowa Code § 502.102(19) (including an investment contract in the definition of a “security”); (2) Pace violated the statutory prohibition against the offer and sale of an unregistered security, see id. § 502.201(1); and (3) Pace violated the statutory prohibition against the sale of a security by an unregistered agent, see id. § 502.301(1). The district court also held that all three options offered by Pace constituted a “business opportunity” as defined in section 523B.l(3)(a). Because option three — the sale/leaseback option — violated the more stringent securities law, the court ruled only offers of options one and two violated section 523B.2, prohibiting the sale of unregistered business opportunities in Iowa.

The court also held Pace committed securities fraud and business opportunities fraud by making false representations and failing to disclose facts key to an investor’s informed investment decision. See id. §§ 502.401(2), 523B.12. Based on the same representations and omissions, the trial court concluded Pace’s conduct constituted an “unfair practice” and “deception” under the consumer fraud provision of chapter 714. See id. § 714.16. Because the court found Pace’s violations were committed against “older persons,” the court held the additional civil penalties of section 714.16A applied.

The district court ordered Pace to pay restitution in the amount of $302,000. See id. §§ 502.501(1) (providing for restitution by person found in violation of chapter 502), 502.604(2)(d) (allowing commissioner of insurance to obtain court order for restitution). It also ordered him to disgorge to the State of Iowa all commissions received from the sale of COCOTS. See id. § 502.604(2)(d) (allowing commissioner to obtain order providing for disgorgement by person found in violation of chapter 502). In addition, Pace was enjoined from violating chapters 502 and 523B, as well as section 714.16, and from selling unregistered securities and business opportunities in Iowa. The court imposed a civil penalty of $4000 ($1000 for each commission of an unlawful practice), and a civil penalty of $1000 ($250 for each commission of consumer fraud against the elderly). See id. §§ 714.16(7) (providing for civil penalty of up to $40,000 per violation of section 714.16), 714.16A(1) (providing for civil penalty of up to $5000 for each violation of section 714.16 committed against an older person). Pace was made responsible for court costs, costs of investigation, and reasonable attorney fees. See id. § 714.16(11) (permitting recovery of court costs, investigative costs, and attorney fees).

Pace appealed the trial court’s decision. He asserts several grounds for reversal: (1) the court erred in holding the sale/leaseback plan was a security under chapter 502; (2) the court erred in concluding Pace was an “agent” under chapter 502 rather than an “affiliate” entitled to the section 502.503(1) defense based on an affiliate’s lack of knowledge of the facts upon which liability is based; (3) the State failed to prove the representations made by Pace were untrue; (4) the State failed to prove consumer fraud; and (5) Pace was denied his federal and state procedural due process rights.

II. Scope ofRevieiv.

A. Statutory claims. Our review of this equity action is de novo. See State ex rel. Goettsch v. Diacide Distribs., Inc., 561 N.W.2d 369, 371 (Iowa 1997); State ex rel. Miller v. Rahmani, 472 N.W.2d 254, 257 (Iowa 1991). Nonetheless, the appellant is not entitled “to a trial de novo, only review of identified error de novo.” Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (emphases omitted). Consequently, “our review is confined to those propositions relied upon by the appellant for reversal on appeal.” Id.

The State must prove the alleged violations of the consumer fraud act by a preponderance of clear, convincing, and satisfactory evidence. See Rahmani, 472 N.W.2d at 257. The standard of proof with respect to the violations of Iowa’s securities law is a mere preponderance of the evidence. See Goettsch, 561 N.W.2d at 373.

B. Constitutional claims. The defendant’s constitutional claims are also reviewed de novo. Fisher v. Iowa Bd. of Optometry Exam’rs, 510 N.W.2d 873, 875 (Iowa 1994).

III. Was the Sale/Leaseback Option a Security?

With certain exemptions not relevant here, Iowa Code chapter 502 prohibits the offer or sale of any security in this state unless it is registered under this chapter. Iowa Code § 502.201. The statutory definition of “security” includes an “investment contract.” Id. § 502.102(19). Pursuant to his statutory authority, see id. § 502.607, the commissioner of insurance has adopted a definition of “investment security” that includes

[a]ny investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor. In this rule, a “common enterprise” means an enterprise in which the fortunes of the investor are tied to the efficacy of the efforts and successes of those seeking the investment or of a third party.

Iowa Admin. Code r. 191 — 50.15(1) (emphasis added). This definition is derived from the United States Supreme Court’s decision in SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946).

Pace asserts the COCOTS he sold were not investment contracts because there was not an expectation of profit derived from the managerial efforts of someone other than the investor. He relies on a case from the Eleventh Circuit Court of Appeals that considered the purchase and leaseback of payphones by one of the companies through which Pace sold COCOTS. See SEC v. ETS Payphones, Inc., 300 F.3d 1281 (11th Cir.2002), rev’d, SEC v. Edwards, 540 U.S. —, 124 S.Ct. 892, 157 L.Ed.2d 813 (2004). In the ETS Payphones case, the circuit court held the fixed payments expected by the investors could not “be considered participation in earnings” and therefore the investors had no “expectation of profits” so as to render the sale/leaseback of payphones a security within the scope of federal securities law. Id. at 1283-84. Moreover, the court held, because the returns to investors were contractually guaranteed, those returns “were not derived from the efforts of [others].” Id. at 1285.

This decision was recently reversed by the United States Supreme Court. See Edwards, 540 U.S. at —, 124 S.Ct. at 896, 157 L.Ed.2d at 819. The Supreme Court noted in its decision that the “expectation of profit” element of the Howey test referenced the profit or return anticipated by the investor, not the profit of the enterprise in which he or she invested. Id. at —, 124 S.Ct. at 897, 157 L.Ed.2d at 820-21. Consequently, whether the investor participates in the profits of the underlying enterprise or is guaranteed a fixed rate of return is not determinative. Id. What is important is whether the investor’s profit or return is dependent on the efforts of others. Id. at —, 124 S.Ct. at 898, 157 L.Ed.2d at 821-22. When it is, the scheme is an investment contract notwithstanding the promise of a fixed rate of return. Id. The Court reversed the court of appeals’ decision that the sale and leaseback of payphones was not a security within the scope of federal securities law. Id. at —, 124 S.Ct. at 899, 157 L.Ed.2d at 822.

We agree with the reasoning of the Supreme Court and find it consistent with our interpretation of the term “investment contract” under Iowa law. In State v. Tyler, 512 N.W.2d 552 (Iowa 1994), we held an investor expected a “profit” where the note evidencing her $2000 investment required a $20,000 payment. 512 N.W.2d at 556 (applying Howey test). We concluded the note was an investment contract regulated by chapter 502. Id. Thus, this court has not hesitated to hold that an investment with a promised fixed return falls within the scope of state securities law.

Examining the facts of the present case, we agree with the district court that under the sale/leaseback option sold by the defendant, any return or profit anticipated by the investors — fixed or not — would necessarily result from the labor of others because the investors contributed no managerial efforts to the initial or ongoing operation of the payphone. Therefore, the COCOT was an investment contract and a security within the scope of chapter 502. See State v. Kraklio, 560 N.W.2d 16, 19 (Iowa 1997) (holding solicitation of $300 from each investor for defendant’s preparation and pursuit of investor’s claim in class action was the sale of a security because the investors had “neither the desire nor the expertise to manage the investment [the claim] themselves”). The trial court was correct in so ruling.

IV. Was Pace an “Affiliate” Rather Than an “Agent”?

Pace argued at trial that he was an “affiliate,” not an “agent” as found by the trial court, a distinction that would affect his culpability under chapter 502. In order to understand and address this contention, it is helpful to briefly review some of the pertinent provisions of chapter 502.

Section 502.201 makes it “unlawful for any person to offer or sell any security ... unless ... [i]t is registered under this chapter.” Iowa Code § 502.201(1). Section 502.301 makes it “unlawful for any person to transact business in this state as a broker-dealer or agent unless ... [t]he person is registered under this chapter.” Id. § 502.301(l)(a) (emphasis added). Any person who violates either prohibition is “liable to the person purchasing the security.” Id. § 502.501. Furthermore, section 502.503 imposes liability on “[ajffili-ates of a person liable under section 502.501,” broker-dealers, and agents “who materially aid and abet in the act or transaction constituting the violation.” Id. § 502.503(1). Joint and several liability is not imposed, however, if the aider and abettor proves he or she “did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability [under section 502.501] is alleged to exist.” Id. § 502.503(l)(<x).

An “affiliate” is “a person who directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the person specified.” Id. § 502.102(2). In contrast, an “agent” is defined as “any individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities.” Id. § 502.102(3). A “broker-dealer” is “any person engaged in the business of effecting transactions in securities for the account of others or for such person’s own account.” Id. § 502.102(5).

Reading these provisions together, it is apparent that the law imposes liability on the person who actually sells an unregistered security without regard to that person’s knowledge of the facts giving rise to the violation. See id. § 502.501. In contrast a person who merely aids or abets the violation has no liability if he or she can prove a reasonable lack of knowledge of such facts. See id. § 502.503(1). Pace seeks to be categorized as an affiliate who merely aided and abetted the prohibited transactions without knowledge that the investments were required to be registered. Such a conclusion is not possible under this record, however, because Pace was a primary violator: the individual who actually made the prohibited offers and sales. See generally Goettsch, 561 N.W.2d at 373 (“Aiding and abetting is ‘a method by which courts create secondary liability’ in persons other than the violator of the statute.” (Citation omitted and emphasis added.)).

As previously noted, status as an affiliate is determined in reference to “the person specified.” Id. § 502.102(2) (defining “affiliate” as “a person who directly, or indirectly ..., controls, is controlled by, or is under common control with, the person specified ” (emphasis added)). Turning to section 502.503, the statute imposing affiliate liability, we conclude “the person specified” for purposes of that statute is the person who sold the unregistered security or who sold a security without being a registered agent. This conclusion is based on the language of section 502.503, which imposes joint and several liability on “[a]f-filiates of a person liable wider section 502.501 ” who aid and abet the prohibited transaction. Id. § 502.503 (emphasis added). The person liable under section 502.501 is the person who violated the registration requirements of section 502.201(1) or section 502.301. See id. § 502.501. We think that person was clearly Pace.

As noted above, section 502.201 makes it unlawful for any person to sell an unregistered security. The record plainly establishes that Pace sold unregistered securities. Section 502.301 makes it unlawful for any person to transact business as an “agent” without being registered. An agent is a person who represents an issuer “in effecting ... sales of securities.” Id. § 502.102(3). Again, the record clearly establishes that Pace represented various marketing and management companies in the sale of COCOTS, which we have found to be securities. Although Pace argues that he did not represent the management companies, this contention is without merit, as he sold the sale/leaseback option as a package deal.

Because Pace personally violated sections 502.201 and 502.301, Pace is “the person liable under section 502.501,” as referenced in section 502.503(1). Therefore, it is literally impossible for him to be an affiliate in these transactions, as an affiliate in this case is a person directly or indirectly controlled by Pace, “the person specified” in section 502.503(1). Id. § 502.102(2). Consequently, the district court correctly determined the defendant’s liability under chapter 502 without consideration of his purported lack of knowledge of the facts giving rise to the statutory violations.

V. Did Pace Commit an Unlawful Practice Prohibited by the Consumer Fraud Law in His Sale of COCOTS?

The trial court held that Pace violated Iowa Code section 714.16, which provides in relevant part:

The act, use or employment by a person of an unfair practice, deception, fraud, false pretense, false promise, or misrepresentation, or the concealment, suppression, or omission of a material fact with intent that others rely upon the concealment, suppression, or omission, in connection with the lease, sale, or advertisement of any merchandise ..., whether or not a person has in fact been misled, deceived, or damaged, is an unlawful practice.

Id. § 714.16(2)(a). This statute is not a codification of common law fraud principles. See State ex rel. Miller v. Hydro Mag, Ltd., 436 N.W.2d 617, 622 (Iowa 1989). It permits relief upon a lesser showing that the defendant made a misrepresentation or omitted a material fact “with the intent that others rely upon the ... omission.” Iowa Code § 714.16(2)(a).

In the present case, the trial court found that Pace made the following false, deceptive and misleading representations to consumers in selling COCOTS: (1) “an investment in COCOTS was guaranteed and was as safe or safer than bank certificates of deposit, annuity products, and insurance products”; (2) “the COCOTS program he offered was properly registered for sale in Iowa”; (3) the investors “would receive a 14% annual return on their COCOT investment and ... they would receive a return of ... 114% on their money”; (4) the investors “would own an asset in the form of a payphone”; and (5) “the payphone companies were financially strong.” In addition, the court found that Pace “failed to share facts [that] would have been material [to investors] in making a decision to invest money in COCOTS.” The material, undisclosed facts included: (1) the investment was high risk; (2) the high returns promised by the management companies could not realistically be expected; (3) the program was a Ponzi scheme; (4) the offers were not registered as a security or a business opportunity; (5) Pace was not registered as a securities agent in Iowa; and (6) Pace received significant commissions for each sale and he was required to return his commission should an investor liquidate his or her investment. See generally Goettsch, 561 N.W.2d at 378 (defining a Ponzi scheme).

Pace challenges the trial court’s finding of consumer fraud on three bases. He denies making the statements attributed to him by the trial court and contends that even if he did make these representations, they were not shown to be false. He also claims that he acted innocently because he simply passed along the information he received from the marketing companies and had no idea this information was false.

Addressing the last argument first, we point out that it is not necessary for the State to prove that the violator acted with an intent to deceive, as is required for common law fraud. See Miller v. William Ckevrolet/GEO, Inc., 326 Ill.App.3d 642, 260 Ill.Dec. 735, 762 N.E.2d 1, 12 (2001) (interpreting identical statutory language and stating, “Nor need the defendant have intended to deceive the [investor].”); Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 365 (1997) (interpreting nearly identical statutory language and stating, “[a]n intent to deceive is not a prerequisite to the imposition of liability”). As we noted above, the only intent required by the statute is that the -defendant act “with the intent that others rely” upon his omissions. Iowa Code § 714.16(2)(a) (emphasis added). In addition, there is no requirement under the statute that a violator have knowledge of the falsity of his or her representations. See Gennari, 691 A.2d at 365 (“One who makes an affirmative misrepresentation is liable even in the absence of knowledge of the falsity of the misrepresentation, negligence, or the intent to deceive.”). Similarly, the Iowa statute does not require knowledge with respect; to the omission or concealment of a material fact. See Miller, 260 Ill.Dec. 735, 762 N.E.2d at 12 (holding “innocent misrepresentations or material omissions” are- -actionable under consumer fraud law that included “the concealment, suppression or omission of any material fact” within definition of unlawful practice); cf. Gennari, 691 A.2d at 365 (holding “[f]or liability to attach to an omission or failure to disclose, ... the plaintiff must show that the defendant acted with knowledge” under statutory definition of unlawful practice that included “knowing concealment, suppression, or omission of any material fact” (emphasis added)). Thus, the defendant’s contention that he was misled by the payphone companies just' like his clients is immaterial. Our consumer fraud statute places the consequences of being uninformed on the agent, not the investor.

As for Pace’s argument that he did not make the allegedly false statements, we point out the district court resolved the discrepancy between his testimony and that of the State’s witnesses on this issue against Pace. Despite our de novo review, we rely on the trial court’s assessment of the credibility of the witnesses in evaluating the strength of the State’s proof. Rahmani, 472 N.W.2d at 256. Furthermore, our appraisal of the record convinces us that Pace made the representations, as found by the trial court, that these representations were false, and that Pace failed to share material information with potential investors. We will not unnecessarily extend our opinion by detailing the evidence we have found to be clear, convincing, and satisfactory proof of the defendant’s violation of section 714.16, as such a discussion would have little precedential value, and the parties already have the benefit of the trial court’s thorough review of the pertinent evidence in its decision. Therefore, we turn to the defendant’s constitutional claims.

VI. Were the Defendant’s Constitutional Rights Violated?

A. “Retroactive” application of determination that COCOTS are securities. Pace argues the decision in this case violated his constitutional due process rights because until the trial court rendered its decision in this case, there had been no adjudication that COCOTS were securities under Iowa law. This argument has no merit. “ ‘The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.’ ” Rivers v. Roadway Express, Inc., 511 U.S. 298, 311-12, 114 S.Ct. 1510, 1519, 128 L.Ed.2d 274, 288 (1994) (citation omitted); accord Casey’s Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 525 (Iowa 2003) (stating “judicial decisions generally operate retroactively and prospectively”). Accordingly, “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers, 511 U.S. at 312-13, 114 S.Ct. at 1519, 128 L.Ed.2d at 289 (footnote omitted).

Furthermore, there is no constitutional prohibition against the retroactive application of judicial decisions, even those overruling prior precedent. See State v. Monroe, 236 N.W.2d 24, 37-38 (Iowa 1975) (stating “it is now well settled that the constitution neither prohibits nor requires retroactive application of [judicial] decisions”); 20 Am.Jur.2d Courts § 173, at 455 (1995). As the United States Supreme Court noted in its Rivers decision,

The essence of judicial decisionmaking— applying general rules to particular situations — necessarily involves some peril to individual expectations because it is often difficult to predict the precise application of a general rule until it has been distilled in the crucible of litigation.

511 U.S. at 312, 114 S.Ct. at 1519, 128 L.Ed.2d at 288. Pace voluntarily subjected himself to this peril when, as an unregistered agent, he sold COCOTS that had not been registered.

We also reject Pace’s assertion that constitutional proscriptions against ex post facto laws are violated by applying the decision that COCOTS are securities to his case. See U.S. Const, art. I, § 10; Iowa Const, art. I, § 21. Even if we assume ex post facto limitations apply to this civil proceeding, the Ex Post Facto Clause is not violated here. See generally State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000) (noting that although “[pjurely civil penalties” are not subject to ex post facto restrictions, civil penalties that are intended to punish are subject to such limitations). Ex Post Facto Clauses “forbid the application of a new punitive measure to conduct already committed.” See id. The civil remedies and penalties imposed here were not new: they were not enacted after Pace engaged in the prohibited acts. To the contrary, the statutes providing for civil relief were adopted long before Pace decided to sell unregistered COCOTS without becoming a registered agent. Consequently, ex post facto principles are simply not implicated in this case.

B. Sufficiency of Notice That Sale of Unregistered, COCOTS Was Unlawful. Pace asserts he did not have “fair warning” that his conduct would subject him to the civil remedies and penalties of chapters 502 and 714 until the trial court in this suit determined that COCOTS were securities within the meaning of Iowa law. The due process requirement that citizens have fair notice of prohibited conduct is satisfied when the terms of a civil' statute “are such that an ordinary person exercising common sense can sufficiently understand and fulfill its proscriptions.” Shriver v. Iowa Dep’t of Transp., 430 N.W.2d 921, 925 (Iowa 1988); accord United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811-12, 98 L.Ed. 989, 996 (1954); Fisher, 510 N.W.2d at 876. In the sphere of economic regulation, this court has set forth the following guiding principles:

Literal exactitude or precision is not necessary. If vagueness can be avoided by a reasonable construction, consistent with the statute’s purpose and traditional restraints against judicial legislation, the statute must be interpreted in that way.
Where economic regulation is involved, the statute is subject to a less strict vagueness test “because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.”

Knepper v. Monticello State Bank, 450 N.W.2d 833, 838 (Iowa 1990) (citations omitted).

Chapter 502, including the statutory definition of “security,” was enacted long before Pace began to sell COCOTS. This' statute clearly requires registration of securities, as well as registration of the agents selling them. It also clearly prohibits misrepresentations and deception in the sale of such investments. The only aspect of the present case that was not expressly stated in the statute was the fact that COCOTS are securities and thus subject to regulation under chapter 502. The securities law does, however, specifically include “investment contracts”- within the statutory definition of “security.” In addition, the insurance department has adopted a detailed definition of the term “investment contract,” which, as noted earlier, is based on a 1946 Sup'reme Court decision. Iii addition, our prior opinions in Tyler and Kraklio gave citizens notice of the breadth of this term. Cf. State v. Hunter, 550 N.W.2d 460, 465 (Iowa 1996) (“A statutory term provides fair warning if the meaning of the word' ⅛ to be fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning.’ ” (Citation omitted and emphasis added.)), overruled on other grounds by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000). Thus, Pace’s due process rights were not violated merely because the agency rule did not explicitly state that COCOTS are investment contracts.

This court has “recognized that in ‘regulating certain matters a degree of indefiniteness is.necessary to avoid unduly restricting the applicability of the proscribing rule.’ ” Fisher, 510 N.W.2d at 876 (citation omitted). . As a practical matter, it would be impossible .and counterproductive for the legislature or the insurance department to list all transactions that fall within the scope of the term “investment contract,” Cf. Eaves v. Bd. of Med. Exam’rs, 467 N.W.2d 234, 236 (Iowa 1991) (holding that statute prohibiting “[k]nowingly ... engaging in ... practice harmful or detrimental to the public” gave sufficient notice to doctors, stating “[i]t would be impossible to catalog all the types of professional misconduct”). A degree of indefiniteness is essential to prevent circumvention of the statute through the development of creative transactions that would fall outside even the most exhaustively crafted list of regulated investments. See Kraklio, 560 N.W.2d at 18 (“[T]he term ‘investment contracts’ is included within the definition of security ‘to identify unconventional instruments that have the essential properties of a debt or equity security.’ ” (Citation omitted.)); accord Howey, 328 U.S. at 299, 66 S.Ct. at 1103, 90 L.Ed. at 1250 (recognizing need for flexible definition “to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits”). Consequently, the legislature is permitted some leeway to define the prohibited conduct in broad terms that can be reasonably applied to varying factual circumstances. That is what the legislature did here. Consequently, we think chapter 502 and the department’s administrative rule gave the defendant fair notice that his sale of unregistered COCOTS as an unregistered agent was unlawful.

C. Failure of State to Issue a Cease- and-Desist Order Prior to Commencing Civil Enforcement Proceeding. The defendant’s final argument rests on the failure of the Iowa Securities Bureau to issue a cease-and-desist order to Pace prior to the State commencing the present action against him. We first note that chapter 502 does not require the State to proceed progressively under the statute, using administrative remedies before it is permitted to pursue a civil or criminal enforcement action in court. Because there is no statutory basis for criticism of the procedure followed by the State in this case, Pace claims the State’s decision to seek civil remedies without first ordering him to cease and desist violated his due process rights to notice and an opportunity to be heard. See U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 9.

Pace relies on a federal district court case to support his position, Economou v. Wade, 515 F.Supp. 813 (S.D.Iowa 1980). In Economou, the Iowa superintendent of securities had issued a cease and desist order against the plaintiffs directing them to stop the sale of unregistered securities in Iowa. Economou, 515 F.Supp. at 814. The plaintiffs claimed in a federal lawsuit that the superintendent’s order violated their procedural due process rights because there was no prior notice or hearing on whether the plaintiffs were actually violating Iowa securities law. Id. The federal court held the plaintiffs’ property interests were implicated by the agency order, but concluded the cease and desist order itself served as notice, and the post-order hearing offered to the plaintiffs in the order adequately protected their rights. Id. at 815. Pointing out that chapter 502 does not require notice and an opportunity for hearing before a cease and desist order is issued, the court specifically rejected the plaintiffs’ contention that due process required a hearing prior to the issuance of the order. Id.

Contrary to the defendant’s assertion in this case, the Economou decision does not stand for the proposition that a cease and desist order must precede a civil enforcement action. The Economou court simply held that the issuance of a cease and desist order with the opportunity for a prompt post-order hearing complies with due process.

Here, the initiation of the civil enforcement hearing-was proeedurally more favorable to the defendants than the cease and desist order was to -the plaintiffs, in Economou. In Economou the plaintiffs were required to immediately stop their sale of securities without first being afforded a hearing on whether their conduct violated Iowa’ securities law. Id. at 814. In contrast, here, the State asked for' Relief, including injunctive relief, only after “such notice and hearing” deemed reasonably required by the trial court.’ See Quality Refrigerated Servs., Inc. v. City of Spencer, 586 N.W.2d 202, 205 (Iowa 1998) (“The Due Process Clause requires that any deprivation of property Toe preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” (Citation omitted.)). Thus, the defendant’s due process rights were not violated.

VII. Summary.

Upon our de novo review, we agree with the trial court that the COCOTS sold by Pace were investment contracts subject to the registration requirements of Iowa securities law. We also concur in the trial court’s determination that the defendant was a primary violator of the securities statute, and not an affiliate. Therefore, the court correctly decided that the lack-of-knowledge defense was not available to Pace.

After independently evaluating the evidence, and relying on the trial court’s credibility determinations, we conclude -the State proved by a preponderance of-clear, convincing, and satisfactory evidence that the defendant violated the consumer fraud provisions of section 714.16.by making misrepresentations and material omissions in his sale of payphones.

Finally, we find no constitutional infirmity in chapter 502 as applied to the transactions at , issue in this case. In addition, neither Pace’s constitutional right to due process nor the constitutional prohibition against ex post facto laws was violated by the State’s prosecution of this civil enforcement proceeding. Finding no error, we affirm.-

AFFIRMED.

      . Pace also argues the trial court erred in concluding the sale/leaseback option met the definition of "business opportunity' under chapter 523B. He claims this investment could not be both a "security” under chapter 502 and a “business opportunity” under chapter 523B. We do not address this issue, however, because the trial court’s finding did not prejudice Pace for two reasons. First, the court specifically declined to rule that Pace’s sale of payphones under the sale/leaseback arrangement violated section 523B.2. The district court stated: "However, as the court concludes the sale/leaseback option constitutes a security and is subject to the more stringent registration provisions of chapter 502, the court finds each offer by Mr. Pace of options one and two constitutes a violation of section 523B.[2].” (Pace does not challenge the trial court's conclusion that options one and two were unregistered business opportunities, giving rise to violations of section 523B.2.) Second, all monetary relief awarded by the trial court was independently supported by Pace’s violations of chapter 502, section 714.16, or section 714.16A, making any findings peculiar to chapter 523B of no practical significance. Therefore, we limit our review of the judgment entered against the defendant to those issues that arise under chapter 502, section 714.16, and section 714.16A.

      . Because our securities law is somewhat patterned after federal securities law, we look to federal decisions for guidance in interpreting our state statute. See Goettsch, 561 N.W.2d at 372; State v. Tyler, 512 N.W.2d 552, 556 (Iowa 1994). Our reliance on federal cases is tempered, however, by the differing purposes of federal and state securities laws. "The suppression of fraudulent practices and the protection of the public from their own gullibility are commonly accepted as the primary purposes of Blue Sky Laws.” Lolkus v. Vander Wilt, 258 Iowa 1074, 1079, 141 N.W.2d 600, 603 (1966); accord Midwest Mgmt. Corp. v. Stephens, 291 N.W.2d 896, 901 (Iowa 1980) (stating Iowa's law exists to protect the public from "deceit perpetrated in the sale of securities" and should be "liberally construed to effectuate [that] purpose”). National securities laws have the "broader purpose of protecting the integrity of the increasingly nationalized [securities] market.” King v. Pope, 91 S.W.3d 314, 320 (Tenn.2002).

      . The court also held these misrepresentations and material omissions'constituted securities fraud under section 502.401(2). Because the standard of proof is higher under section 714.16, we consider Pace’s challenge to the court's findings of misrepresentation and material omission only under the consumer fraud provisions of chapter 714.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Tony Augustus MALLETT, Appellant.
    No. 02-1675.
    Supreme Court of Iowa.
    April 7, 2004.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
   LARSON, Justice.

Tony Mallett was convicted of second-degree robbery as an habitual offender. He was sentenced and then appealed. While the appeal was pending, Mallett filed a motion for new trial on the ground he had not been arraigned in the case that was on appeal. The district court denied the motion. We hold the district court was deprived of jurisdiction to rule on the motion for new trial because of Mallett’s pending appeal and therefore vacate the district court’s order.

On July 30, 2001, the Black Hawk County attorney amended an earlier county attorney information that had charged Mallett with burglary and possession of a controlled substance. The amendment added a charge of second-degree robbery as an habitual criminal. Although Mallett had been arraigned on the original charges, for some reason he was not arraigned on the new charge. Mallett pled guilty to the original charges. The charge of second-degree robbery as an habitual criminal, the new charge, was tried to a jury. The defendant was convicted, and he was sentenced on October 1, 2001. He filed a notice of appeal on October 10, 2001. In that appeal, Mallett raised issues of ineffective assistance of counsel, but he did not raise the arraignment issue. His conviction was affirmed by the court of appeals on December 11, 2002.

On September 6, 2002, while the appeal was pending, he filed a motion for new trial in the district court on the ground of newly discovered evidence. He claimed he had just become aware of the fact there had been no arraignment in the case. The district court denied the motion, and Mallett filed the present appeal. The State moved to dismiss the appeal on the ground that an appellate court lacks jurisdiction to consider it. We ordered the motion to be submitted with the appeal. We do not dismiss the appeal because the issue is not a lack of jurisdiction in this court but rather the lack of jurisdiction of the district court.

Generally, an appeal divests a district court of jurisdiction. State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001); Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995). Restoration of district court jurisdiction may be accomplished by only two means: the litigants’ stipulation for an order of dismissal or an appellate court’s order for limited remand. Shedlock, 534 N.W.2d at 658. Neither means applies here. However, a district court maintains jurisdiction over disputes between the parties that are merely collateral to the issues on appeal. Id. An example of a collateral matter as to which a trial court retains jurisdiction is the modification of an order for restitution in a criminal case. Jose, 636 N.W.2d at 46.

Mallett contends his motion in district court should not be subjected to the general rule because it raised an issue not involved in his original appeal: the failure of the State to arraign him on the amended charge. We disagree; the whole thrust of his motion was to get a new trial, which would vitiate the case then on appeal. It was, therefore, not merely collateral. We conclude the district court lacked jurisdiction to enter a ruling on his motion and therefore vacate that order.

ORDER OF DISTRICT COURT VACATED.


text:
    Brad CUBIT and Brad Cubit as Next Friend of Shania Cubit, Appellant, v. MAHASKA COUNTY, Appellee.
    No. 02-1478.
    Supreme Court of Iowa.
    April 7, 2004.

      Pamela J. Walker of Sherinian & Walker Law Firm, West Des Moines, for appellant.
    Carlton G. Salmons of Gaudineer, Comi-to & George, L.L.P., West Des Moines, for appellee.
   TERNUS, Justice.

Plaintiff, Brad Cubit, was injured when a driver fleeing from law enforcement authorities intentionally crashed his vehicle into Cubit’s highway patrol car. In this action against the county, Cubit claimed the employees staffing the county’s E-911 system gave him incomplete information, thereby preventing him from taking the necessary precautions to avoid injury. Cubit also claimed the county was negligent in its supervision of one of these employees, a trainee dispatcher.

The district court granted summary judgment to the county on the basis of Iowa Code section 670.4(11) (1999), the emergency response exception to municipal tort liability. On appeal, the court of appeals affirmed. After our consideration of the arguments of the parties, we think the district court and court of appeals were correct. Therefore, we affirm.

I. Factual Background.

Because this case comes to us on the district court’s summary judgment ruling, “we view the entire record in a light most favorable to the nonmoving party [and] indulge in every legitimate inference that the evidence will bear” in favor of the nonmoving party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). Accordingly, where the plaintiff and the county have argued different views of the facts underlying this ease, we have assumed, for purposes of our review, that the facts are as asserted by the plaintiff. We now summarize those facts.

Shortly before 8:00 p.m. on June 11, 1999, Mahaska County E-911 dispatchers received a citizen’s call of a domestic assault by Loyd Hanson. The dispatchers notified local law enforcement that Hanson was believed to be driving a blue vehicle, was known to go armed, and was thought to be intoxicated. The local authorities immediately initiated a search for Hanson.

At approximately 8:26 p.m., trainee dispatcher Ann Hafar took a call from Hanson’s girlfriend, Jayne Scott. Scott told Hafar that Hanson had just called her and had informed her that he was driving Scott’s car, was surrounded by the police, and was going to kill himself. Scott also told Hafar that Hanson stated “he had a quarter of a mile to get up to 80 miles per hour and crash into 'em.” Hafar considered these threats suspect because the police had not yet located Hanson. Nonetheless, upon completing this call, Hafar told the dispatcher on duty that night, Cheryl Ann Eklofe, that Hanson was suicidal. Hafar did not pass along the information that Hanson intended to crash his ear into the police. A few minutes later, the police spotted Hanson’s vehicle and began pursuit.

At approximately 8:29 p.m., Cubit, a trooper with the Iowa State Patrol, ended his dinner break and upon turning on his radio learned of "the Hanson chase. Less than a minute later, the county sheriff asked the dispatcher to request státe assistance. Cubit heard this request over his radio and told Eklofe, after learning the location of the pursuit, that he would head in that direction. Shortly thereafter, Ek-lofe made two broadcasts- to law enforcement that Hanson was suicidal. Cubit did not hear these broadcasts, however, possibly due to the radio congestion caused by several officers trying to broadcast at the same time.

Within a few minutes of becoming involved, Cubit learned that, Hanson was headed south on the same road upon which Cubit was traveling north. Cubit parked his vehicle on the shoulder of the road at the bottom of a hill and placed “stop sticks” in the southbound lane. (“Stop sticks” puncture the tires of a car, causing a rapid loss of tire pressure, thereby bringing the car to a halt.) He then stood in front of his patrol car, waiting for Hanson. .As Hanson’s vehicle came over the crest of the hill and approached the stop sticks, Hanson drove his car- across both lanes of traffic, directly toward. Cubit’s patrol-car. Although Cubit started running, he was struck by his patrol car when it was hit by Hanson’s vehicle.

Viewed most favorably to the plaintiff, the record also shows that trainee dispatchers are not to work on their own and must be supervised at all times until they have completed training at the Iowa Law Enforcement Academy. Hafar had not completed such training. Nonetheless, she was not supervised when she took the call from Hanson’s girlfriend because the dispatcher was occupied with other responsibilities and there was no other employee on duty to monitor Hafar’s work. Although Hafar was required to pass along all pertinent information from a caller to the dispatcher, Hafar failed to tell Eklofe that Hanson had stated he was going to crash into the officers chasing him. Had this fact been relayed to Eklofe, Eklofe would have passed this information on to the officers for their safety. Because it was not brought to Eklofe’s attention, however, Eklofe did not alert Cubit and other- law enforcement personnel that Hanson might intentionally assault the police with his vehicle.

II. Civil Proceedings.

Cubit filed suit against the county, seeking to recover damages for the injuries he sustained when Hanson crashed his car into Cubit’s vehicle. The plaintiff claimed the county, through the actions of its employee, Ann Hafar, was negligent in failing to provide the dispatcher with the information that Hanson intended to crash his vehicle into law enforcement officers. In addition, Cubit claimed the county was negligent in failing to provide adequate supervision of its trainee dispatchers. The county raised section 670.4(11) as an affirmative defense, claiming it was immune from liability. ■ This statute grants municipalities immunity from tort liability for

[a] claim based upon or arising out of an act or omission in connection with an emergency response including but not limited to -acts or omissions in connection with emergency response communication services.

Iowa Code § 670.4(11); see Kulish v. Ellsworth, 566 N.W.2d 885, 890 (Iowa 1997).

As previously indicated, the district court granted the county’s motion for summary judgment based on the emergency response immunity found in section 670.4(11). The court rejected the plaintiffs argument that the statutory immunity did not apply to claims asserted by an emergency responder. It also concluded the plaintiffs allegation of negligent supervision did not remove his case from the ambit of section 670.4(11). Finally, the court found no merit in the plaintiffs assertion that the special relationship allegedly existing between him, as a law enforcement officer whose aid was . enlisted during the emergency, and the county took his claim outside the statutory immunity.

On appeal to the Iowa Court of Appeals, the district court’s decision was affirmed. This court granted further review.

III. Scope of Review.

We review a ruling on a motion for summary judgment for correction of errors of law. Estate of Leonard v. Swift, 656 N.W.2d 132, 138 (Iowa 2003). “If the record shows no genuine dispute of a material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate.” Crippen, 618 N.W.2d at 565. “A fact question does not arise, however, when the only dispute concerns the legal ramifications flowing from undisputed facts.” Estate of Leonard, 656 N.W.2d at 138. “Where the only dispute concerns legal consequences flowing from undisputed facts, our review is limited to whether the district court correctly applied the' law.” Kulish, 566 N.W.2d at 889.

IV. Discussion.

The plaintiff concedes the high speed chase on the evening of June 11, 1999, was an emergency situation. Consequently, it cannot be disputed that the actions of the county’s E-911 dispatcher and trainee dispatcher occurred “in connection with emergency response communications services.” Iowa Code § 670.4(11). Cubit claims, however, there are three reasons why the immunity granted in that statute does not extend to this lawsuit: (1) the emergency response immunity does not apply to an. emergency responder who is injured; (2) the immunity does not apply to his negligent supervision claim; and (3) the plaintiff had a special relationship with the county that took his claim outside the parameters of section 670.4(11). We will consider each argument in turn.

A. Application of immunity to emergency responder claimants. Cubit argues that section 670.4(11) applies only to claims made by third parties who are injured, but not to claims made by emergency responders. His sole authority for this proposition is this court’s discussion of the purpose of the emergency response immunity in Kulish. We said in that case,

A local government has a strong interest in providing rescue services for citizens involved in accidents and who — day or night — need immediate response. The statutory exemption from tort liability allows municipal providers of emergency care to render necessary medical aid in dire situations free from distractions or concerns over potential lawsuits.

Kulish, 566 N.W.2d at 890 (emphasis added). The plaintiff reasons that because “Trooper Cubit was not a citizen requesting assistance from Mahaska County,” but rather was responding to the county’s call for assistance, the immunity -should not apply.

The plaintiffs argument ignores well-established rules of statutory interpretation. “When we interpret a statute, we attempt to give effect to the general assembly’s intent in enacting the law. Generally, this intent is gleaned from the language of the statute.” Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 864-65 (Iowa 2003). “We do not search for meaning beyond the express terms of a statute when the statute is plain and its meaning is clear.” In re Name Change of Reindl, 671 N.W.2d 466, 469. (Iowa 2003).

Turning to the present case, we note the plaintiff has pointed to no language in section 670.4(11) that indicates a legislative intent to limit the immunity granted by that statute to claims brought by third parties. The statute sweeps broadly, encompassing all “claim[s] based upon or arising out of an 'act or omission in connection with an emergency response....” Iowa Code § 670.4(11). This court has no power to read a limitation into the statute that is not supported by the words chosen by the general assembly. See Zomer v. West River Farms, Inc., 666 N.W.2d 130, 134 (Iowa 2003) (refusing to read into the workers’ compensa^ tion statute a limitation , on the commissioner’s authority not expressed by the legislature); Moulton v. Iowa Employment Sec. Comm’n, 239 Iowa 1161, 1172, 34 N.W.2d 211, 216 '(1948) (“ ‘The, court is not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its. provisions by an unwarranted interpretation of the language used.’ ” (Citation omitted.)). As we stated on a previous occasion when we rejected a litigant’s plea to read an exception into this statute, “Our only task ... is to apply the language of section 670.4(11) as written.” Kershner v. City of Burlington, 618 N.W.2d 340, 346 (Iowa 2000) (refusing to exclude claim from immunity even though fire department did not follow its own written policies). Thus, we find no merit in the plaintiffs’ contention that the emergency response immunity does not protect the municipality from liability for injuries to emergency responders. See McAlexander v. Siskiyou Joint Cmty. Coll, 222 Cal.App.3d 768, 272 Cal.Rptr. 70, 73 (1990) (refusing to read into immunity statute for liability resulting from emergency medical. training a limitation restricting immunity.to suits brought by third persons).

B. Negligent supervision claim.- The plaintiff alleged in his petition that the county was negligent in “[flailing to provide adequate supervision for its dispatchers.” He explains this allegation on appeal, asserting dispatcher Eklofe was too occupied with other calls to supervise trainee Hafar when Hafar took the call from Hanson’s girlfriend — a 911 call, Cubit claims, that should have been monitored by the dispatcher. Cubit contends in his brief, “Based on this evidence, a jury could reasonably conclude that Mahaska County was negligent in its supervision of Ms. Hafar on the evening of June 11, 1999.” He seeks to avoid the emergency response immunity on the basis that “Mahaska County made the decision to not have a third person available for the supervision of Ann Hafar long before the emergency situation arose.”

In determining whether the claim of negligent supervision falls outside the immunity granted by section 670.4(11), we turn to the language of the statute and ask whether this claim is a “claim ... arising out of an act or , omission in connection with an emergency response.” Iowa Code § 670.4(11). Clearly, the failure of Eklofe to supervise Hafar on June 11, 1999, and Hafar’s failure to inform Eklofe that Hanson planned to crash his car into the police were acts or omissions “in connection with an emergency response” and the plaintiff does not contend otherwise. Thus, the determinative question is whether Cubit’s claim of negligent supervision arises out of the dispatcher’s and trainee’s acts and omissions during the emergency. See Kershner, 618 N.W.2d at 346 (stating “the only relevant inquiry in determining whether the city has immunity under the emergency response provision is whether plaintiffs claim is ‘based upon or arising out of an act or omission in connection with an emergency response’ ”).

The phrase, “arising out of,” is not defined in the statute. Therefore, “[w]e may refer to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage” to determine its meaning. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996); accord Net Midwest, Inc. v. State Hygienic Lab., 526 N.W.2d 313, 315 (Iowa 1995) (same); State v. Williams, 315 N.W.2d 45, 49 (Iowa 1982) (stating “meaning of a statute may be ‘ascertained by reference to prior judicial decisions, similar statutes, the dictionary, or common generally accepted usage’ ” citation omitted).

Black’s Law Dictionary defines the word “arise” as “[t]o originate; to stem (from).” Black’s Law Dictionary 102 (7th ed.1999). More on point are decisions from this court and the court of appeals interpreting similar, if not identical, language used in other statutes or rules. In the context of a workers’ compensation claim, we have held: “An injury ‘arises out of the employment if a causal connection exists between the employment and the injury.” Meade v. Ries, 642 N.W.2d 237, 243 (Iowa 2002) (emphasis added). A similar meaning was ascribed to the phrase “arose from” by the court of appeals in its interpretation of Iowa Rule of Criminal Procedure 6(1). See State v. Smith, 576 N.W.2d 634, 636 (Iowa Ct.App.1998), overruled on other grounds by State v. Owens, 635 N.W.2d 478, 484 (Iowa 2001). In that case, the court of appeals was required to determine the meaning of the rule permitting joinder in one information of “[t]wo or more public offenses which arose from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan.” Iowa R.Crim. P. 6(1) (emphasis added) (now Iowa R.Crim. P. 2.6(1)). The court applied the following test:

Multiple offenses arise out of the same transaction or occurrence “where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge.” If either crime can be proven without reference to the other, this test is not met and severance is required.

Smith, 576 N.W.2d at 636 (citation omitted); cf. Brenneman v. Stuelke, 654 N.W.2d 507, 508-09 (Iowa 2002) (undertaking similar analysis to determine whether specifications of negligence fell within statutory immunity for injuries inflicted “as a result of intoxication”).

Our review of prior cases interpreting the language “arising out of’ has also led us to this court’s decisions interpreting insurance policies using this phrase. See, e.g., Hollingsworth v. Schminkey, 553 N.W.2d 591 (Iowa 1996); Kalell v. Mut. Fire & Auto. Ins. Co., 471 N.W.2d 865 (Iowa 1991). In those cases, we have recognized that the phrase “arising out of’ may have a broad or narrow meaning, depending upon whether the phrase appears in a coverage clause or an exclusionary provision. We explained these differing approaches in Kalell:

Courts construing coverage clauses give the words “arising out of’ a broad, general and comprehensive meaning. They are commonly understood to mean originating from, growing out of, or flowing from, and require only that there be some causal relationship between injury and risk for which coverage is provided. As to an exclusion clause, however, a narrow or restrictive construction is required.

471 N.W.2d at 867 (emphasis added and original emphases omitted). Under the narrow interpretation of this phrase, proximate cause is required as opposed to a mere causal relationship. Id. at 868.

We think the broader interpretation of the phrase “arising out of’ more appropriately governs our interpretation of section 670.4(11). Importantly, interpreting this language to require some causal connection between the plaintiffs claim and the emergency response gives the statutory words their common, dictionary meaning. See Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543, 548 (Iowa 2002) (“ ‘A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary; contemporary, common meaning.’ ” (Citation omitted.)); In re Estate of Thomann, 649 N.W.2d 1, 4 (Iowa 2002) (“In the absence of a statutory definition or an established meaning in the law, words in a statute are given their ordinary and common meaning.”). This meaning is also consistent with our interpretation of similar statutory language. See Brenneman, 654 N.W.2d at 508-09; Meade, 642 N.W.2d at 243-44; Smith, 576 N.W.2d at 636- In addition, this court has on other occasions characterized statutory immunities as having a broad scope and we have given words used in such immunity statutes a broad meaning, including language in section 670.4(11) other than the words at issue here. See, e.g., Adams v. City of Des Moines, 629 N.W.2d 367, 371 (Iowa 2001) (giving broad interpretation to section 670.4(11), relying on “this court’s application of a companion exception in Baker v. City of Ottumwa, 560 N.W.2d 578 (Iowa 1997),” where we held the language of that section “created a very broad classification of claims”); Kulish, 566 N.W.2d at 891 (characterizing the “language of section 670.4(11) — ⅛ connection with an emergency’ and ‘including but not limited to’ ” —as “broad”); Humphries v. Trustees of the Methodist Episcopal Church, 566 N.W.2d 869, 873 (Iowa 1997) (giving broad interpretation to language used in section 668.10(2), stating: “The word ‘street’ should be interpreted broadly so as to foster the legislative intent favoring immunity.”); Baker, 560 N.W.2d at 582 (refusing to read immunity bestowed by section 670.4(12) narrowly in view of “the broad language of [that] section”); Hansen v. State, 528 N.W.2d 547, 549 (Iowa 1995) (referring to “the broad scope of the immunities granted by section 668.10(1) and section 668.10(2),” relating to state and municipal immunity regarding installation of traffic devices and removal of snow and ice from the highway); cf. Walker v. Mlakar, 489 N.W.2d 401, 405 (Iowa 1992) (interpreting statutory exception to common law immunity narrowly).

Based on our review of this court’s prior cases, as well as our interpretation of similar statutes, we .think the language “arising out of,” as used in section 670.4(11), requires that there be some causal connection between the “claim” and “an act or omission in connection with an emergency response.” Iowa Code § 670.4(11). Thus, only if the plaintiffs claim of negligent supervision may be proved without reference to or reliance upon the dispatchers’ acts or omissions during the emergency on June 11, 1999, will the plaintiff avoid the statutory immunity of section 670.4(11). We consider, then, the proof required for Cubit’s negligent supervision claim.

A claim of negligent supervision “ ‘must include as an element an underlying tort or wrongful act committed by the employee.’ ” Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 53 (Iowa 1999) (citation omitted) (relying on Restatement (Second) of Agency § 213 cmt. a, at 458 (1958)). This requirement means that Cubit must prove “as an element” of his claim that “the employee” — the dispatchers— committed a wrongful act. Here, the only wrongful act committed by the dispatchers was their failure to inform Cubit that Hanson planned to drive his car into the police. It is undisputed this act occurred during an emergency response. Consequently, the plaintiffs negligent supervision claim cannot be proved without proof of the dispatchers’ acts or omissions during the emergency. Clearly, there is a causal connection between these acts or omissions and the negligent supervision claim because both the negligent supervision and the negligent emergency response communications are in the causal chain leading to the plaintiffs injury. Therefore, the negligent supervision claim is one “arising out of an act or omission in connection with an emergency response,” within the scope of Iowa Code section 670.4(H). See Perkins v. United States, 55 F.3d 910, 916 (4th Cir.1995) (stating with respect to exception to Federal Tort Claims Act: “An allegation of ‘negligent supervision’ will not render an otherwise unactionable claim actionable so long as the negligent supervision claim depends on activity of the supervised agent which is itself immune.”); Dist. of Columbia v. Walker, 689 A.2d 40, 50 (D.C.Ct.App.1997) (interpreting statutory immunity for “a claim arising out of the operation of an emergency vehicle on an emergency run” and holding claim of negligent training fell within immunity because “the claim ... was based on the theory that the collision was caused by the defective operation of emergency vehicles by [the police] [ojfficers ..., which in turn was caused by the [District’s] asserted defective training of those officers”); Nylund v. Carson City, 117 Nev. 913, 34 P.3d 578, 581 (2001) (relying on “plain language” of statutory immunity for “liability arising out of emergency management activities,” court held claim of pre-flood negligence was not outside immunity when it merely “contributed to the damage caused by the emergency management activities”).

C. Special relationship. Cubit’s final argument to avoid the statutory immunity is that the county owed him a duty based on the special relationship between the county and Cubit, a state trooper assisting local law enforcement. The plaintiff contends that by virtue of this special relationship, the county “had a duty to provide him with all the necessary information to provide ... assistance and maintain his own safety.” Even if we assume there was a special relationship between Cubit and Mahaska County so as to give rise to a duty beyond that owed by the county to the general public, liability based on that duty is extinguished by the emergency response immunity because, as we have already determined, the plaintiffs claims against the county fall within the scope of that immunity. See Fried v. Archer, 139 Md.App. 229, 775 A.2d 430, 449 (2001) (holding fact that negligence claim rests on a special duty does not prevent the extinguishment of that claim when immunity has been granted for such negligence).

V. Conclusion.

We hold the plaintiffs negligent supervision claim arose out of an act or omission in connection with an emergency response so as to fall within the scope of the statutory immunity provided to the county in section 670.4(11). In addition, there is no basis in the statute to except Cubit’s claim simply because he was carrying out the emergency response, as the immunity applies to all claims falling within its terms whether made by an emergency responder or by a third person. Finally, even if the county owed a duty to the plaintiff based on a special relationship, the county is immune from liability since the claim based on that duty is within the scope of the statutory immunity.

Because there is no dispute with respect to the facts material to a determination of these issues, the district court did not err in granting the county’s motion for summary judgment. Likewise, the court of appeals was correct in affirming the district court. We affirm the decision of the court of appeals and the judgment of the district court dismissing the plaintiffs petition.

DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.

      . Because we find the "arising out of” alternative of section 670.4(11) dispositive, we do not consider whether the negligent supervision claim is “based upon ... an act or omission in connection with an emergency response.” Iowa Code § 670.4(11) (emphasis added).

      . Even if the narrow interpretation of “arising out of” were applied to the facts of the case before us, Cubit's claim would fall within the statutory immunity. In Kalell, we applied the narrow definition to an exclusion in a homeowners policy for bodily injury "arising out of the ownership, maintenance, use, loading or unloading of ... a motor vehicle.” 471 N.W.2d at 866. We held that
      when two independent acts of negligence are alleged, one vehicle-related and one not vehicle-related, coverage is still provided under the homeowners policy unless the vehicle-related negligence is the sole proximate cause of the injury.

        Id. at 868 (emphasis added). We concluded the nonvehicular negligence was not within the exclusion because that alleged act of negligence "could be negligence without regard to whether a motor vehicle was used.” Id. The same is not true here. As we have discussed, the negligent supervision claim, by definition, requires proof that the dispatchers were negligent in their emergency response communications. Therefore, the negligent supervision claim is not “independent” and cannot be actionable without regard to the emergency response communication. Accordingly, even under the narrow view of "arising out of,” the county is protected by the emergency response immunity.

      . Cubit suggests our decision in Keystone Electrical Manufacturing, Co. v. City of Des Moines, 586 N.W.2d 340 (Iowa 1998), supports his assertion that summary judgment is inappropriate here. In Keystone, the plaintiff alleged "the City was negligent in failing to fill an opening in a levee just prior to and during the flood of 1993, and that the City’s negligence was a proximate cause of the flood damage to Keystone's property.” 586 N.W.2d at 343. We held that it could not “be said as a matter of law ... that the City [was exempt] from liability” under section 670.4(11), id., because there was a valid dispute whether "an emergency existed at the time the City decided not to close the railroad opening in the levee,” id. at 350.
      The present case is distinguishable because here there is no dispute that the dispatchers' allegedly negligent actions occurred during an emergency response. The issue is whether the negligent supervision claim also arose out of these acts taken "in connection with an emergency response” so as to fall within the statutory immunity. In contrast, in Keystone, only one act of negligence was at issue: the City’s decision not to close the levee. If this decision was not made during an emergency, there would have been no "act or omission in connection with an emergency response” that could trigger the immunity because this decision was the only act giving rise to the City’s alleged liability. Therefore, we simply were not faced in Keystone with the question that is at issue here, where one of two negligent acts clearly occurred in connection with an emergency response.