author: ZINTER, Justice.

text:
    2005 SD 97
    Patrick CULHANE and Nancy Turbak, Plaintiffs and Appellees, v. WESTERN NATIONAL MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    No. 23442.
    Supreme Court of South Dakota.
    Argued May 25, 2005.
    Decided Sept. 7, 2005.

      Michael Abourezk, Abourezk Law Firm, Rapid City, South Dakota, Nancy J. Tur-bak, Watertown, South Dakota, Attorneys for plaintiffs and appellees.
    James E. Moore of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] An automobile was involved in a single car accident triggering the collision coverage in a personal automobile policy. The insurer tendered the total cost of repairs. However, the insureds contended that they were also entitled to any diminished market value that existed after the vehicle was physically and mechanically repaired to its former condition. The trial court granted partial summary judgment in favor of the insureds, allowing them to present evidence of post-repair diminished market value. The trial court also permitted the insureds to proceed on a claim alleging bad faith in the denial of coverage for diminished market value. We granted both parties’ requests for an intermediate appeal. We hold that, under the policy provision limiting indemnification to the lesser of actual cash value or repair, the insurer’s liability for repair did not include diminished market value remaining after the vehicle had been repaired to its former physical, operating, and mechanical condition.

Facts and Procedural History

[¶2.] Western National Mutual Insurance Company issued a personal automobile policy covering Patrick Culhane and Nancy Turbak’s 2001 Audi Quattro. On August 22, 2003, the Audi was involved in a one-vehicle accident. Culhane and Tur-bak (hereinafter collectively referred to as Culhane ) submitted a repair estimate of almost $13,000 to Western. Culhane also claimed that after repairs, the Audi would sustain a diminution in market value of $8,000 to $10,000. Culhane demanded that Western pay for the repairs plus the post-repair diminished value. Western denied the diminished value claim but sent Cul-hane a check for the full cost of repairs, less the deductible.

[¶ 3.] Because Culhane continued to pursue the diminished value claim, Western retained independent local counsel to obtain an opinion concerning its indemnification obligation under the policy. Independent counsel advised Western that the question had not been resolved in South Dakota, but persuasive authority in other jurisdictions justified a denial of Culhane’s diminished value claim.

[¶ 4.] Culhane subsequently sued Western for breach of contract and bad faith. Prior to trial, Western moved for summary judgment on all claims. Culhane also moved for partial summary judgment seeking a declaration that Western was required to indemnify for post-repair diminished value and that Western had engaged in bad faith in denying that claim. The trial court granted Culhane’s motion, allowing evidence of diminished value and bad faith to be submitted to the jury. The issues on appeal are:

(1) Whether the policy required indemnification for both the cost of repairs and post-repair diminished market value; and
(2) Whether Western acted in bad faith when it denied Culhane’s post-repair diminished market value claim.

Analysis and Decision

[¶ 5.] Our standard of review on summary judgment is well-settled. We affirm the circuit court “when there are no genuine issues of material fact and the legal questions have been correctly decided.” Sanford v. Sanford, 2005 SD 34, ¶ 11, 694 N.W.2d 283, 287 (citations omitted). The question in this case is legal in nature requiring insurance contract interpretation. We review that question of law de novo with no deference to the trial court. Auto-Owners Ins. Co. v. Hansen Hous., Inc., 2000 SD 13, ¶ 10, 604 N.W.2d 504, 509 (citations omitted).

Post-Repair Diminished Market Value

[¶ 6.] The policy’s “limitation of liability” provision is central to this dispute. It contractually limits the portion of the loss that the insurer must indemnify. It provides:

Our limit of liability for loss will be the lesser of the:
1. Actual cash value of the stolen or damaged property; or
2. Amount necessary to repair or replace the property with other property of like kind and quality.

I

[¶ 7.] On two prior occasions, this Court has considered related questions under similar policy language limiting an insurer’s liability to the lesser of cash value or repair. See Stucker v. Travelers Indent., Co., 77 S.D. 27, 84 N.W.2d 566 (1957) and Grubbs v. Foremost Ins. Co., 82 S.D. 98, 141 N.W.2d 777 (1966). Because of the analogous limitation of liability language, Culhane strenuously argues that these decisions clearly establish that recoverable first-party collision loss includes the cost of repairs plus post-repair loss of market value.

[¶ 8.] We disagree. Shmker only held that an insurer’s liability may be limited to the cost of repairs, but the repair limitation does not apply when the property cannot be restored to its former condition.

The policy provision limiting the insurers’ liability to the cost of repairs applies only where the damaged vehicle can reasonably be repaired. It has no application in case the insured vehicle is damaged beyond repair and cannot thereby be restored to its former condition.

Stucker, 77 S.D. at 31, 84 N.W.2d at 569 (citation omitted). Similarly, Grubbs, in reaffirming the cost of repair limitation, held that the insured’s “recovery was limited to the cost of repair or replacement only if that restored the property to substantially its prior condition.” 82 S.D. at 102, 141 N.W.2d at 778-79.

[¶ 9.] Culhane, however, points out that the jury verdict affirmed in Stucker exceeded the cost of repairs. Culhane further asserts that both parties in Stucker had agreed that the vehicle could be restored to its former condition in all respects other than value. Because the Stucker jury instructions limited damages to the cost of repair if the vehicle could have been placed in substantially the same condition, Culhane argues that the Stucker affirmance of a verdict exceeding the cost of repair essentially approved post-repair loss of market “value” as a part of the cost of “repair.”

[¶ 10.] However, the premise of Cul-hane’s argument is incorrect because the witnesses in Stucker did not agree that the car could be repaired to its former condition in all respects other than value. The service manager for one garage testified that the car was “ ‘damaged beyond repair’ and couldn’t possibly be as good a machine as before,” while another witness testified that “the replacement of damaged parts with new parts would result in a car mechanically the same as when it came from the factory.” Stucker, 77 S.D. at 31, 84 N.W.2d at 569. Considering this dispute, this Court noted that the issue was whether the car “could be restored to its former condition by suitable repairs or replacements.” Id. at 32, 84 N.W.2d at 569 (emphasis added) (citation omitted). Consequently, this Court affirmed the jury award exceeding the cost of repairs only because of this conflicting evidence that would have allowed the jury to award damages for lost value if it found that the vehicle could not be reasonably repaired. Stucker did not, however, expressly or impliedly hold that the policy language, limiting indemnification to “repair,” also required indemnification for post-repair diminished market value.

[¶ 11.] If anything, Stucker’s dicta foreshadowed the opposite conclusion: a conclusion that has been reached by virtually all recent decisions on this question. Stucker noted that when a vehicle is repairable, this type of policy language limits recovery to alternatives: the reasonable cost of repairs or lost value, but not both. This Court stated:

The ... contract provision creates an express limitation on the insurers’ liability in case the damaged vehicle is reparable. Recovery is then limited to the reasonable cost of repairing the automobile or to its actual cash value whichever should be smaller in amount.

Id. at 29, 84 N.W.2d at 568.

[¶ 12.] Grubbs, decided nine years later, confirmed that this type of policy provision limits the loss recovery to the lesser of lost value or repair of the property. Grubbs involved a mobile home that was damaged by hail. The insurance policy contained a similar repair or lost value limitation. Again, this Court did not adopt Culhane’s position that “repairs” include a component of post-repair lost market value. Instead, without any mention of lost value, Grubbs confirmed that cost of repair is an alternative that only requires restoration of the property. This Court stated:

The words ‘repair’ and ‘replace’ used in a policy of insurance mean the restoration of the insured property to substantially the same condition in which it was immediately prior to the damage.

Grubbs, 82 S.D. at 101, 141 N.W.2d at 778 (emphasis added).

[¶ 13.] Culhane, however, relies on other language in Grubbs to suggest that “repairs” include post-repair loss of value. Culhane points out that in affirming a verdict ($1,200) that exceeded the cost of repairs, this Court stated:

The jury could find the value of the trailer before the hail storm was $2,400 or $8,000; that after the repairs were made it would be worth $1,650 or $1,700, and the repairs mentioned would not, as the court instructed, ‘fairly compensate him for the damage.’

Id. at 102, 141 N.W.2d at 779 (emphasis added). However, Culhane’s reliance on this reference to lost value “after the repairs were made” takes the reference out of context and, most importantly, fails to consider the trial court’s instructions. When considered in context with the approved jury instructions, it is clearly apparent that the language was not intended to allow the cost of repairs plus post-repair diminished value. The trial court’s instructions, approved by this Court, specifically provided:

In determining the amount of damage sustained by the plaintiff you may award the lesser amount of two sums of money to be arrived at as follows:
“The first is the sum which you determine to be the reasonable expense of making the necessary repair to the property.
The second sum is the difference between the fair market value of the property immediately before the storm and the fair market value of the unrepaired property immediately after the storm.”

Id. at 100, 141 N.W.2d at 778 (emphasis added). Thus, the law of the case only permitted an award of lost value of unre-paired property, and we view the language at issue as nothing more than a possible jury conclusion should the jury have found that the attempted repairs had not restored the mobile home’s physical condition.

[¶ 14.] Consequently, when viewed in context, our cases have not held that this type of policy limitation requires indemnification for the cost of repairs plus post-repair lost value. Instead, our decisions have, like almost all of the recent decisions on this subject, enforced the policy limitation as written and limited recovery to the lesser of the cost of repairs or lost value, but not both.

II

[¶ 15.] The trial court considered these decisions but offered three reasons for allowing post-repair diminished value. The trial court reasoned that: (1) “[a] reasonable person could read [Culhane’s] insurance policy and believe that when submitting a claim they would recover an amount equal to what it would require to restore their vehicle to its pre-accident value;” (2) “[t]he election of the repair choice works in the economic favor of the insurer and forces the insured to bear the significant loss in market value despite insuring the vehicle against loss,” which “offends the principle of mutuality and unjustly places the burden of bearing the actual loss on the insured;” and (3) “[a] genuine issue of material fact exists as to the meaning of the term restore a vehicle to its ‘former condition.’ ”

[¶ 16.] We address this reasoning in turn. First, we disagree with the trial court’s use of reasonable expectations because “this Court has repeatedly declined to adopt [that] doctrine.” See Dakota, Minn. & E. R.R. Corp. v. Heritage Mut. Ins. Co., 2002 SD 7, ¶ 37, 639 N.W.2d 513, 519 (quoting SDCP v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶24 n. 5, 616 N.W.2d 397, 407 n. 5). Moreover, because we ultimately conclude that the policy is not ambiguous, Culhane’s reasonable expectations are irrelevant. “The doctrine of reasonable expectations simply does not apply to [insurance] policy language [where it is unambiguous].” Id., ¶ 39. Finally, even if the doctrine of reasonable expectations were helpful in interpreting the meaning of “repair or replace,” the doctrine is of no avail here because Cul-hane’s expectation concerning the meaning of “repair or replace” is objectively unreasonable. As the Massachusetts Supreme Court explained:

Seeking to evade the clear import of this cap on [the insurer’s] liability, [the insured] contends that the concept of inherent diminished value is included within the term “repair or replace the damaged property,” in the sense that the vehicle has not been fully “repaired]” or “replace[d]” when it still suffers some diminution in value even following full physical restoration. We will not torture the plain meaning of the terms “repair” and “replace” to encompass “repair” or “replacefment]” of damage caused by stigma, a form of damage that, by definition, defies remedy by way of “repair” or “replace[ment].” There is nothing exotic about the words “repair or replace” as used in the standard policy — both words, in their ordinary usage, refer to the remedying of tangible, physical damage. See Websters Third New Inti Dictionary 1923 (1993) (defining “repair” as “to restore by replacing a part or putting together what is torn or broken”); id. at 1925 (defining “replace” as “to place again: restore to a former place, position, or condition”). No “objectively reasonable insured, reading the relevant policy language” would conclude that these terms include compensation for diminution in market value or for anything else beyond restoration of the vehicle’s precollision physical condition.

Given v. Commerce Ins. Co., 440 Mass. 207, 212-13, 796 N.E.2d 1275, 1279-80 (2003) (citation omitted). See also Hall v. Acadia Ins. Co., 801 A.2d 993, 995-96 (Me.2002) (concluding that the insurance “policy’s use of the term ‘repair’ is unambiguous and that [the insurer’s] liability for a loss under the policy extends only to the loss that can be repaired as that term is commonly understood. Because diminution in value is a loss that cannot be repaired, an ordinary person would reasonably conclude that a claim for diminished value is not covered by the policy”); Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 360 (Fla.Dist.Ct.App.2001) (stating that “a return to market value is not what the words ‘repair’ [and] with ‘like kind and quality’ commonly connote and is not what an ordinary insured would reasonably understand the phrase to mean”).

[¶ 17.] With regard to the trial court’s second reason, we note that although not specifically rejected by this Court, the doctrine of mutuality has been generally abandoned. See Given, 796 N.E.2d at 1278 n. 4. See also 2 Corbin on Contracts § 6.1, at 197 (rev ed 1995); 3 Williston on Contracts § 7:14 (4th ed 1992); Restatement (Second) of Contracts § 79 (1981). Thus, we also find this reasoning unpersuasive.

[¶ 18.] Finally, with respect to the trial court’s third reason, we disagree that the meaning of the language “former condition” was a question of fact for a jury. The meaning of this language, which is a court’s interpretation of the contract, is a question of law for the court. See Prunty Const., Inc. v. City of Canistota, 2004 SD 78, ¶ 10, 682 N.W.2d 749, 753; Yarcheski v. Reiner, 2003 SD 108, ¶24, 669 N.W.2d 487, 495; Roth v. Roth, 1997 SD 75, ¶ 16, 565 N.W.2d 782, 786. Therefore, we disagree with the trial court’s reasons for allowing a jury to consider indemnification for the cost of repairs plus indemnification for post-repair loss of value.

Ill

[¶ 19.] We believe this issue is governed by the plain meaning of the policy language. In examining policy language, we first restate that:

Where the provisions of an insurance policy are fairly susceptible of different interpretations, the interpretation most favorable to the insured should be adopted. This rule of liberal construction in favor of the insured and strictly against the insurer applies only where the language of the insurance contract is ambiguous and susceptible of more than one interpretation.... This rule does not mean, however, that the court may seek out a strained or unusual meaning for the benefit of the insured.

National Sun Indus., Inc. v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶ 18, 596 N.W.2d 45, 48-49 (citation omitted). Instead, we consider the policy “according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending [its] operation.” State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994) (citations omitted). We also consider the provisions as a whole. Nelson v. Farmers Mut. Ins. Co. of Neb., 2004 SD 86, 11, 684 N.W.2d 74, 77 (citation omitted).

[¶ 20.] Here, there are a number of relevant policy provisions. They include:

INSURING AGREEMENT
A. We will pay for direct and accidental loss to “your covered auto” or any “non-owned auto”, including their equipment, minus any applicable deductible shown in the declarations.
LIMIT OF LIABILITY
A. Our limit of liability for loss will be the lesser of the:
1. Actual cash value of the stolen or damaged property; or
2. Amount necessary to repair or replace the property with other property of like kind and quality.
B. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total loss.
C. If repair or replacement results in better than like kind or quality, we will not pay for the amount of the betterment.
PAYMENT OF LOSS
We may pay for loss in money or repair or replace the damaged or stolen property.

[¶ 21.] Obviously, this dispute focuses primarily on the “Limit of Liability” provision that limits Western’s contractual obligation to pay the lesser of actual cash value of the vehicle or the amount necessary to repair or replace with other property of a like kind and quality. Culhane argues that because repair or replacement must be with other property of a like kind, and quality, the language is broad enough to include repair plus diminished value. Cul-hane contends that this language is “fairly susceptible” to different interpretations and “the interpretation most favorable to the insured” must be adopted. See Roden v. General Cas. Co. of Wis., 2003 SD 130, ¶10, 671 N.W.2d 622, 625. However, in Roden, we stated that a policy is not ambiguous simply because the parties disagree about its meaning. Rather, “[a]mbi-guity in an insurance policy is determined with reference to the policy as a whole and the plain meaning and effect of its words.” Id. (citation omitted). See also Johnson v. Johnson, 291 N.W.2d 776, 778-79 (S.D.1980) (stating that a policy is not ambiguous simply because parties differ about the interpretation).

[¶ 22.] In this case, we see no ambiguity. This Court concluded long ago that unless the property cannot be repaired, an insurer’s contractual liability is limited to the cost of repairs. Grubbs, 82 S.D. at 102, 141 N.W.2d at 778-79; Stucker, 77 S.D. at 32, 84 N.W.2d at 569. This Court was also unequivocal in stating that the two measures of damage (lost value or repair) are alternatives and the insurer is only obligated to pay the lesser of the two. Id. Furthermore, our cases have avoided the use of the word value when talking about the repair alternative. On the contrary, we have noted that repair contemplates restoration of the condition of the property. See Stucker, 77 S.D. at 31, 84 N.W.2d at 569; Grubbs, 82 S.D. at 101, 141 N.W.2d at 778. Finally, in discussing restoration of the condition of the property, this Court has rejected the notion that the repair option requires restoration to the same condition. Rather, this Court noted that the repair limitation applies when the vehicle can be restored to “substantially the same condition.” Stucker, 77 S.D. at 32, 84 N.W.2d at 569; Grubbs, 82 S.D. at 102, 141 N.W.2d at 778-79.

[¶ 23.] Today, we further observe that alternative (2) of the “Limit of Liability” provision specifically uses the language “repair or replacement” with other “property,” while only alternative (1) speaks of loss of “value.” This use of different language in the two alternative subsections strongly suggests that each alternative contemplates a different limit of liability. Thus, the use of the word “value” in subsection (1) and the use of the word “property” in subsection (2) clearly suggest that lost value was contemplated in the first alternative but not the second. We also observe that the “Payment of Loss” provision gives the insurer the exclusive option to pay any “loss in money or repair or replace the damaged or stolen property.” Therefore, requiring repair of the property plus indemnification in money for diminished value extinguishes the insurer’s contractual right contained in both of these provisions. As the Texas Supreme Court explained:

Interpreting the policy’s “repair or replace” language to include diminished value, as [the insured] urges, would render other provisions of the policy meaningless. The policy provides that the insured is entitled to “the lesser of’ actual cash value or the amount necessary to repair or replace the vehicle. To incorporate diminished value into the “repair or replace” provision would render the “lesser of’ language meaningless. The insurer’s obligation to compensate the loss would be cumulative— repair or replace and pay diminished value — in effect insuring the vehicle’s “actual cash value” in every instance and undermining the insurer’s right under the policy to choose a course of action. See Pritchett, 834 So.2d at 791-92 (holding that insurer’s option to pay the vehicle’s full value or make repairs would be meaningless if the policy were read to cover diminished value); Siegle, 819 So.2d at 739 (same); O’Brien, 785 A.2d at 287 (same). It may be true, as [the insured] contends, that in some instances — say, when a very expensive car is damaged — an insurer will spend less money if it elects to repair and pay diminished value damages rather than declare the car a total loss and pay its actual cash value. But requiring an insurer, who elects repair, to additionally pay cash for the market’s diminished perception incorporates an intangible value element into the repair provision that simply does not appear in the policy’s language.
Inserting the concept of diminished value into the repair provision would similarly render the policy’s “Payment of Loss” section meaningless. Under this section of the policy, the insurer has an option to pay the insured in “money or repair or replacement].” (emphasis added). Including diminished value in the concept of repair would force an insurer that chooses to compensate a loss by exercising the repair option to also pay money, ignoring the clause’s disjunctive language.

American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 159-60 (Tex.2003). We find this analysis persuasive because when this Court examined a similar payment of loss provision, we noted that under it, repair was limited to replacing physical parts: an “insurer may pay for the loss in money or may repair or replace the automobile, or such damaged part thereof.” Stucker, 77 S.D. at 29, 84 N.W.2d at 568. Thus, if the policy provisions are to be given effect, the indemnification obligation may be satisfied solely through repair or replacement of the property or parts, and the policy does not contemplate repair or replacement of parts plus an additional payment of money for unrepairable diminished value.

[¶ 24.] Instead, “[t]he plain meaning of [the insurer’s] obligation ... is to restore the vehicle, either through repair or replacement, to the same physical and operating condition it was in before the damage occurred.” Schaefer, 124 S.W.3d at 159. That conclusion is required because the ordinary meaning of the words “repair” and “replace” indicate something physical and tangible.

[W]hether or not intrinsic value generally inheres in the word “quality,” and assuming without deciding that the phrase “of like kind and quality” modifies both “repair” and “replace,” we must look to the ordinary meaning of the words that are modified. We have said that the words “repair” and “replace,” with regard to a vehicle, connote something tangible, like removing dents, fixing parts, or replacing the vehicle with a comparable substitute. Thus, if an insurer elects to repair a vehicle and must replace parts in doing so, it must use parts “of like kind and quality.” Likewise, if an insurer elects to replace the vehicle, it must do so with a vehicle “of like kind and quality.”

Id. at 160 (citation omitted). However, post-repair diminution in market value is excluded by “repair or replace” language:

[Wjhere an insurer has fully, completely, and adequately “repaired or replaced the property with other of like kind and quality,” any reduction in market value of the vehicle due to factors that are not subject to repair or replacement cannot be deemed a component part of the cost of repair or replacement. Under the “repair or replace” provision of the policy’s limit of liability, the insurer’s liability is capped at the cost of returning the damaged vehicle to substantially the same physical, operating, and mechanical condition as existed immediately before the loss. This obligation does not include liability for any inherent diminished value caused by conditions or defects that are not subject to repair or replacement, such as a stigma on resale resulting from “market psychology” that a vehicle that has been damaged and repaired is worth less than a similar one that has never been damaged. While the insured may well suffer this type of damage as a result of a direct or accidental loss, the plain language of the policy clearly and unambiguously limits the insurer’s liability to “the amount necessary to repair or replace the property with other of like kind and quality.” If the market value of the vehicle, after full, adequate, and complete repair or replacement, is diminished as a result of factors that are not subject to “repair” or “replacement,” the insurer has no obligation to pay the diminution in value. No other reasonable interpretation can be given to the parties’ express agreement that the insurer’s liability is capped at the amount necessary to “repair or replace.”

Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454, 465 (Tex.App.2000).

IV

[¶ 25.] Although this is nearly the unanimous view of the multitude of courts that have considered this issue in the last five years, Culhane argues that we should adopt a contrary view. To support his argument, Culhane points out that “the obvious purpose of a contract providing collision coverage is to protect insureds and their lenders from property losses caused by the peril insured against — collision.” From this, Culhane argues that the value of the vehicle is what is being insured, not just its physical condition and mechanical function. Culhane further argues that it is irrational for an insurance company to protect only against the part of a loss that is represented by the cost of repairs and to ignore other significant losses.

[¶ 26.] While one may debate whether it is rational to only insure part of a loss, that debate is irrelevant because Western’s indemnification obligation is governed by the terms of its contract. Stated in other words, the contractual indemnification obligation is not governed by Culhane’s post-loss feeling of what should be reasonably or rationally covered. Furthermore, Culhane’s entitlement to recovery for the “entire loss” is only applicable under the “[r]ules ... [of] recovery in tort[, but those rules] do not apply to an action on a contract of insurance.” Campbell v. Markel Am. Ins. Co., 822 So.2d 617, 622-23 (La.Ct.App.2001). Because this is a contract of insurance, “we do not consider what measure of recovery would make the insured whole after a loss or what would be fair and reasonable compensation for the loss ... sustained, for we are not deciding a tort claim.” Carlton, 32 S.W.3d at 464. We do not consider the rules of recovery in tort because:

Allowing damages for diminution in value, when such damages are established, fulfills the tortfeasor’s obligation to “make whole” his victim.
In contrast, the obligation between [the insurer] and the [insured] is contractual. [The insurer’s] obligation to indemnify [the insured] when a first-party claim is submitted due to a collision is limited by the terms of the contract. It is not governed by tort principles. Bootstrapping the standards for measuring damages when property is damaged through the fault of another to the contractual coverage provided by an insurer for first-party collision claims would result in a new contract, one enlarged beyond what is reasonably contemplated by the clear terms set forth therein, and would ignore the principle that insurance companies may limit coverage so long as such limitations do not conflict with statutory provisions or public policy.

Townsend v. State Farm Mut. Auto. Ins. Co., 793 So.2d 473, 479-80 (La.Ct.App.2001).

[¶ 27.] Thus, the question is not whether the entire loss should be rationally indemnified, but rather, what is the extent of the loss that is covered under the insurance contract. And, with respect to that question, virtually all modern decisions conclude that the entire loss is not indemnified.

[R]equiring an insurer, who elects repair, to additionally pay cash for the market’s diminished perception incorporates an intangible value element into the repair provision that simply does not appear in the policy’s language.
We acknowledge that [the insured’s] repaired vehicle may command a smaller sum in the market than a like vehicle that has never been damaged, and that awarding [the insured] diminished value in addition to repair would go further to make him whole. But we may neither rewrite the parties’ contract nor add to its language.

Schaefer, 124 S.W.3d at 160-62.

V

[¶ 28.] Notwithstanding this recent, almost unanimous view on this issue, Cul-hane points out that some jurisdictions have interpreted repair to include a component of lost value. Culhane specifically points to Stoops v. First Am. Fire Ins. Co., 160 Tenn. 239, 22 S.W.2d 1038, 1040 (1930), a case we cited in Stucker; which stated:

[T]he cost of repairs and replacement ... is not the full measure of the insurance to which appellee is entitled, unless such repairs and replacements will restore the value possessed by the automobile at the date of the accident.

Western acknowledges this authority but points out that the vast majority of courts addressing this issue have rejected Cul-hane’s position. In fact, six of the seven state supreme courts that have considered this issue in the last five years have all rejected Culhane’s identical argument. And, during this same time period, fourteen courts (including the state supreme courts just mentioned) have issued twenty-four decisions disallowing claims for post-repair diminished value, while only two states have found coverage.

[¶ 29.] Culhane attempts to distinguish some of the no-coverage cases by arguing that different policy language was at issue. This argument is without merit. For example, in Given, 796 N.E.2d at 1277, the Massachusetts policy did have unique language. However, the court’s analysis focused on an analogous limit of liability provision, which provided that the insurer was never required to “pay more than what it would cost to repair or replace the damaged property.” Id. Similarly, the policy language considered in Pritchett, 834 So.2d at 787 and Townsend, 793 So.2d at 478 did contain language providing for estimates based on prevailing competitive prices for determining the cost of repair or replacement. Nevertheless, the holding of these courts was based on the meaning of the word “repair.” See Townsend, 793 So.2d at 478 (concluding that the “provision limits [the insurer’s] liability for loss to the lower of either the actual cash value of the automobile or the cost of repair or replacement of the automobile”); Pritchett, 834 So.2d at 795 (concluding that under the “repair or replace” language of the insurance policy, the insurer was “not required to compensate its insured for any possible difference between the value of the insured automobile before the collision and the value of that automobile after the damage caused by the collision has been repaired”).

[¶ 30.] Culhane also attempts to distinguish other no-coverage cases by arguing that they had “repair or replace” language, but not the “like kind and quality” language. See Campbell, 822 So.2d at 620; Hall, 801 A.2d at 995; Wildin v. American Family Mut. Ins. Co., 249 Wis.2d 477, 481-82, 688 N.W.2d 87, 88-89 (Ct.App.2001). However, even though neither Hall nor Campbell mentioned “like kind and quality,” they did not indicate that this difference would have warranted a different outcome. Instead, like most courts, those cases simply relied upon the plain and ordinary definition of “repair” and from that, concluded there was no coverage for post-repair diminution in value. Only Wildin suggested that Culhane’s distinction is valid (noting that neither the reasoning nor the result of an earlier case within that jurisdiction was applicable because the earlier case involved the “like kind and quality” language). 249 Wis.2d at 485, 638 N.W.2d at 90.

VI

[¶ 31.] In the final analysis, Culhane simply disagrees with the almost unanimous view of modern courts considering this issue. Furthermore, of the scores of cases cited by Western, Culhane has attempted to distinguish only a few, while conceding that there is a “legitimate difference of opinion as to the meaning of the ‘like kind and quality clause’ and the scope of coverage.” Based upon the overwhelming weight of authority, the unmistakable trend of virtually all recent decisions, and our decisions in Stucker and Grubbs, we adopt the majority view. We conclude that absent a showing that the vehicle cannot be repaired to its former physical, mechanical, and operating condition, post-repair diminution in value is excluded by this policy limitation. For this reason, and because Culhane concedes the Audi could be repaired in the sense of restoring appearance and function, we reverse on the diminished value issue.

[¶ 32.] With respect to the bad faith issue, we have stated that “[a]n insurance company is entitled to challenge claims which are fairly debatable and will be found liable only where it has intentionally denied (or failed to process or pay) a claim without a reasonable basis.” Phen v. Progressive N. Ins. Co., 2003 SD 133, ¶ 24, 672 N.W.2d 52, 59 (citation omitted). Because of the overwhelming authority holding that Western was not responsible for Culhane’s diminished value claim, Western had a reasonable basis to believe that it would not be liable, and it did not act in bad faith in denying this claim. Therefore, we also reverse on the bad-faith claim.

[¶ 33.] Reversed.

[¶ 34.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 35.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . Turbak submitted a joint claim stating: "I write on behalf of myself and my husband Pat Culhane, your insureds, regarding our claim for property loss...."

      . The trial court’s decision to leave the diminished market value claim for the jury appears to be based on two prior decisions of this Court leaving loss of value or repair questions for the jury. However, the prior disputes were submitted to the jury because there were factual questions whether repairs would have restored the damaged property to its prior physical condition. See Stucker v. Travelers Indem. Co., 77 S.D. 27, 84 N.W.2d 566 (1957); Grubbs v. Foremost Ins. Co., 82 S.D. 98, 141 N.W.2d 111 (1966). Here, there is no dispute that the automobile can be restored to its former physical, operating, and mechanical condition. The question is whether there is an obligation, as a matter of law, to indemnify for diminished market value after property has been physically restored. This is not a question for the jury.

      . See infra ¶ 28 n. 12.

      . We are not the only court that disagrees with Culhane’s contrary reading of our cases. Other courts also read Stucker and Grubbs to hold that this type of policy limitation does not permit loss recovery for repair plus post-repair diminished value. See Siegle v. Pro

        gressive Consumers Ins. Co., 819 So.2d 732, 738 n. 4 (Fla 2002); Black v. State Farm Mut. Auto. Ins. Co., 101 S.W.3d 427, 428-29 (Tenn.Cl.App.2002).

      . We acknowledge Culhane's point that Western tendered money (a check) for the cost of repair and, therefore, elected to pay in money. That act does not, however, define the meaning of the policy language "repair or replace.”

      . The South Dakota Legislature has been actively involved in mandated insurance coverage. Considering the absence of a statute mandating coverage for repair plus loss of value, the question of mandated coverage is for the legislature.

      . For these reasons, this decision has no effect on the damages one may receive from a tortfeasor or a tortfeasor's insurance carrier. That recovery is governed by SDCL 21-3-1, which provides:
      For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
      SDCL 21-3-1 (2005) (emphasis added).

      .Although Culhane relies upon ten cases that have found coverage for post-repair loss of value, most of these decisions are either dated or readily distinguishable. For example, in Southern Farm Bureau Cas. Ins. Co. v. Gaither, 238 Ark. 50, 51, 378 S.W.2d 211, 211 (1964), a repair estimate was tendered, but "subsequently additional damage to the truck was discovered, consisting of a bent frame, and two badly cut tires, which were not included in the ... estimate,” and therefore, it was a jury question whether the offer of repair was sufficient. In Hyden v. Farmers Ins. Exch., 20 P.3d 1222, 1225 (Colo.Ct.App.2000), the court ordered repair plus diminished market value, which together exceeded the total cash value of the vehicle before the accident. Thus, this decision has been rejected, distinguished, or not followed by virtually all jurisdictions that have analyzed it. In State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 508, 556 S.E.2d 114, 122 (2001), the Georgia Supreme Court found coverage only because it "has stood for 75 years in Georgia and has become, therefore, part of the agreement between the parties when they enter into a contract of insurance which includes the promise to pay for the insured's loss.” In Venable v. Import Volkswagen, Inc., 214 Kan. 43, 519 P.2d 667 (1974), the repairs were not satisfactory, and there were numerous remaining problems. Thus, Venable only stands for the proposition that "[a]s a measure of damages where repair fails to restore the property, the value of the vehicle immediately before the damage less the value immediately after repairs are made, plus the reasonable cost of the repairs may be applied.” Id. at 673. In Potomac Ins. Co. v. Wilkinson, 213 Miss. 520, 529-30, 57 So.2d 158, 160 (1952), the court allowed diminished value but did not acknowledge the policy limitation at issue here. In Ciresi v. Globe & Rutgers Fire Ins. Co., 187 Minn. 145, 244 N.W. 688 (1932), and Edwards v. Maryland Motorcar Ins. Co., 204 A.D. 174, 197 N.Y.S. 460 (1922), the cases involved automobiles that were stolen and later recovered, but that had been driven several thousand miles while in the possession of thieves. In Senter v. Tennessee Farmers Mut. Ins. Co., 702 S.W.2d 175 (Tenn.Ct.App.1985), the court did not disclose the language used in the insurance policy. And finally, Allgood v. Meridian Sec. Ins. Co., 807 N.E.2d 131 (Ind.Ct.App.2004), has been vacated and is no longer good authority. See Allgood v. Meridian Sec. Ins. Co., 812 N.E.2d 1065 (Ind.Ct.App.2004). As such, only one of the ten decisions cited by Culhane is even arguable authority for coverage of post-repair diminished value. See Dunmire Motor Co. v. Oregon Mut. Fire Ins. Co., 166 Or. 690, 700, 114 P.2d 1005, 1009 (1941) (holding that "[i]t can not be said that there has been a complete restoration of the property unless it can be said that there has been no diminution of value after repair of the car”).

      . Although Culhane suggests our prior citation to Stoops indicates that we have adopted the diminished value rule of Tennessee, his suggestion is misplaced. In citing to Stoops, this Court only noted that when the vehicle cannot be reasonably repaired, “the proper measure of damages is the difference between the fair cash value of the automobile before and after the accident.” Stucker, 77 S.D. at 31-32, 84 N.W.2d at 569 (citation omitted). Moreover, Stoops arrived at its conclusion only because it found that policy language ambiguous. 22 S.W.2d at 1039. Here, as we point out, the repair language of Western's policy is not ambiguous.

      . Western relies on eighteen cases that preclude coverage for post-repair diminution in value:

        Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785 (Ala.Civ.App.2002); Johnson v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 1, 754 P.2d 330 (Ct.App.1988); Ray v. Farmers Ins. Exch., 200 Cal.App.3d 1411, 246 Cal.Rptr. 593 (1988); O’Brien v. Progressive N. Ins. Co., 785 A.2d 281 (Del.2001); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002); General Ac

        cident Fire & Life Assurance Corp. v. Judd, 400 S.W.2d 685 (Ky.1966); Campbell v. Markel Am. Ins. Co., 822 So.2d 617 (La.Ct.App.2001); Townsend v. State Farm Mut. Auto. Ins. Co., 793 So.2d 473 (La.Ct.App.2001); Hall v. Acadia Ins. Co., 801 A.2d 993 (Me.2002); Given v. Commerce Ins. Co., 440 Mass. 207, 796 N.E.2d 1275 (2003); Driscoll v. State Farm Mut. Auto. Ins. Co., 227 FSupp2d 696 (E.D.Mich.2002); Lupo v. Shelter Mut. Ins. Co., 70 S.W.3d 16 (Mo.Ct. App.2002); Schulmeyer v. State Farm Fire and Cos. Co., 353 S.C. 491, 579 S.E.2d 132 (2003); Black v. State Farm Mut. Auto. Ins. Co., 101 S.W.3d 427 (Tenn.Ct.App.2002); American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (Tex.2003); Bickel v. Nationwide Mut. Ins. Co., 206 Va. 419, 143 S.E.2d 903 (1965); Wildin v. American Family Mut. Ins. Co., 249 Wis.2d 477, 638 N.W.2d 87 (Ct.App.2001); Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5thCir.2002).

      . See O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 290 (Del.2001) (staling that an insurer’s responsibility to "repair or replace” does not include an obligation to pay for "diminution in value resulting from a 'market psychology' ” nor "from the minute physical imperfections that are inherent to repair, so long as repairs have ... returned [the vehicle] to substantially the same form as before the accident”); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 736, 738 (Fla.2002) (concluding that, under policy language stating the lesser of "actual cash value” or "the amount necessary to repair or replace the property with other of the like kind and quality,” the contract terms were not ambiguous and, therefore, coverage for diminished value was denied); Hall v. Acadia Ins. Co., 801 A.2d 993, 995-96 (Me.2002) (concluding that the insurance "policy’s use of the term ‘repair’ is unambiguous and that [the insurer’s] liability for a loss under the policy extends only to the loss that can be repaired as that term is commonly understood. Because diminution in value is a loss that cannot be repaired, an ordinary person would reasonably conclude that a claim for diminished value is not covered by the policy”); Given v. Commerce Ins. Co., 440 Mass. 207, 212-13, 796 N.E.2d 1275, 1280 (2003) (stating that the terms “repair” or "replace” do not encompass “damage caused by stigma, a form of damage that, by definition, defies remedy by way of 'repair1 or 'replace[ment]' ” and finding that repair or replace, "in their ordinary usage, refer to the remedying of tangible, physical damage”); Schulmeyer v. State Farm Fire & Cas. Co., 353 S.C. 491, 498, 579 S.E.2d 132, 135-36 (2003) (holding that coverage is "expressly limit[ed] ... to the lesser of the actual value or the cost of repair. These are alternatives, which do not include an additional obligation to pay for diminished value when the cost of repair is chosen.”); American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 158 (Tex.2003) (concluding that because the limit of liability section limits the insurer's liability to either "actual cash value” or the amount needed to "repair or replace,” whichever is less, the ordinary and generally accepted meaning of those words does not require the insurer to compensate the insured for diminished value).
      The only contrary decision is State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 508, 556 S.E.2d 114, 122 (2001) (finding coverage for diminished value only because that interpretation has stood for 75 years in Georgia and, thus, has become “part of the agreement between the parties when they enter into a contract of insurance which includes the promise to pay for the insureds’ loss").

      . The twenty-four decisions denying coverage are:

        Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5thCir.2002) (applying Louisiana law); Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785 (Ala.Civ.App.2002); O’Brien v. Progressive N. Ins. Co., 785 A.2d 281 (Del.2001); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002); Rezevskis v. Aries Ins. Co., 784 So.2d 472 (Fla.Dist.Ct.App.2001); Smith v. Superior Ins. Co., 802 So.2d 424 (Fla.Dist.Ct. App.2001); Campbell v. Markel American Ins. Co., 822 So.2d 617 (La.Ct.App.2001); Farmers Seafood Co., Inc. v. Progressive Sec. Ins. Co., 799 So.2d 866 (La.Ct.App.2001);
        Johnson v. Illinois Nat’l Ins. Co., 818 So.2d 100 (La.Ct.App.2001); Townsend v. State Farm Mut. Auto. Ins. Co., 793 So.2d 473 (La.Ct.App.2001); Hall v. Acadia Ins. Co., 801 A.2d 993 (Me.2002); Given v. Commerce Ins. Co., 440 Mass. 207, 796 N.E.2d 1275 (2003); Roth v. Arnica Mut. Ins. Co., 440 Mass. 1013, 796 N.E.2d 1281 (2003); Lupo v. Shelter Mut. Ins. Co., 70 S.W.3d 16 (Mo.Ct.App.2002); Camden v. State Farm Mut. Auto. Ins. Co., 66 S.W.3d 78 (Mo.Ct. App.2001); Spellman v. Sentry Ins., 66 S.W.3d 74 (Mo.Ct.App.2001); Schulmeyerv. State Farm Fire & Cas. Co., 353 S.C. 491, 579 S.E.2d 132 (2003); Black v. State Farm Mut. Auto. Ins. Co., 101 S.W.3d 427 (Tenn.Ct.App.2002); Progressive County Mut. Ins. Co. v. Bailey, 133 S.W.3d 272 (Tex.2004); State & County Mut. Fire Ins. Co. v. Macias, 133 S.W.3d 271 (Tex.2004); American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (Tex.2003); Smither v. Progressive County Mut. Ins. Co., 76 S.W.3d 719 (Tex.App.2002); Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454 (Tex.App.2000); Wildin v. American Family Mut. Ins. Co., 249 Wis.2d 477, 638 N.W.2d 87 (Ct.App.2001).
      Virtually all of these courts finding no coverage have done so because, as previously discussed, the word "repair” has a plain meaning that does not encompass repair of diminished market value after the repair is completed. Rather, the plain meaning of repair contemplates physical restoration. See Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785, 791 (Ala.Civ.App.2002) (concluding that "[t]he various definitions of repair do not discuss the concept of value ... in its common usage, the term 'repair' is [not] understood to encompass the concept of value or require a restoration of value.”); O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 290 (Del.2001) (stating that the word repair means "to bring back to good or useable condition”); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 736 (Fla.2002) (stating that “ 'repair' means 'to restore by replacing a part or putting together what is torn or broken' ”); Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 360 (Fla.Dist.Ct.App.2001) (stating that "a return to market value is not what the words 'repair' with 'like land and quality' commonly connote and is not what an ordinary insured would reasonably understand the phrase to mean.”); Campbell v. Markel Am. Ins. Co., 822 So.2d 617, 627 (La.Ct.App.2001) (stating that interpreting the word repair to include the diminished value of an automobile "would go beyond the word's plain meaning”); Hall v. Acadia Ins. Co., 801 A.2d 993, 995 (Me.2002) (noting that repair means "[t]o restore to sound condition after damage or injury”); Given v. Commerce Ins. Co., 440 Mass. 207, 796 N.E.2d 1275, 1280 (2003) (stating that they "will not torture the plain meaning of the terms 'repair' and 'replace' to encompass 'repair' or 'replace[ment]' of damage caused by stigma, a form of damage that, by definition, defies remedy by way of 'repair' or 'replace[ment]’ ”); American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 158 (Tex.2003) (stating that "[t]he concept of repair with regard to a vehicle connotes something tangible, like removing dents or fixing parts”).
      The two decisions permitting coverage are: State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 556 S.E.2d 114 (2001); Hyden v. Farmers Ins. Exch., 20 P.3d 1222 (Colo.Ct.App.2000).


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Richard Allen MILLSAP, Sr., Appellant.
    No. 03-1504.
    Supreme Court of Iowa.
    Sept. 2, 2005.
    Rehearing Denied Oct. 12, 2005.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant, and Richard Allen Millsap, Sr., pro se.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Richard Allen Millsap, Sr., was convicted in a bench trial of two counts of child endangerment in violation of Iowa Code section 726.6(l)(a) (2001) and one count of driving while barred in violation of Iowa Code section 321.561. Millsap’s convictions resulted from the deaths of his two young nephews who fell from the bed of a truck that the defendant was driving. Millsap appeals, raising five issues: (1) the evidence was insufficient to prove the necessary mens rea for child endangerment; (2) the trial judge abused his discretion in refusing to recuse himself; (3) the trial court failed to exercise its discretion when sentencing the defendant to prison on the driving-while-barred conviction; (4) the trial court considered an improper factor in sentencing the defendant to consecutive prison terms; and (5) section 726.6(1) is unconstitutionally vague. Upon our review of the record and the arguments of the parties, we affirm with one exception. We agree the court failed to exercise its discretion when it imposed sentence on the driving-while-barred charges. Therefore, we vacate that sentence and remand for resentencing.

I. Background Facts and Proceedings.

We view the evidence in the light most favorable to the State. See State v. Arnold, 543 N.W.2d 600, 602 (Iowa 1996).

The tragic accident giving rise to this case occurred on September 7, 2002, when Millsap enlisted the assistance of his two nephews, Mark, age 10, and Fred, age 9, in removing brush and tree limbs from a property in Des Moines. The boys often helped their uncle in performing handyman jobs, and the record showed the defendant had a history of providing his nephews with guidance and assistance.

On the day in question, the defendant drove his truck to the job site, notwithstanding the prior revocation of his driving privileges. The defendant’s one-ton truck had an open bed equipped with side panels. The boys rode in the back. On the way to the work site, another driver pulled along side the truck and informed the defendant that one of the boys was hanging his legs over the back end of the truck bed. The defendant yelled through the sliding window in the cab for the boy to “Get up there like I told you and sit down.” The other driver noted the boys did as they were told by their uncle. The defendant testified the boys were good kids and always minded him.

The group proceeded to the work site, where they removed brush and tree limbs and loaded them on the bed of the truck. When they were finished, the defendant placed the boys within the brush on the truck bed, and proceeded to drive through the city. Witnesses who Saw the truck testified that the tree limbs extended beyond the height of the truck’s cab and side panels. They also said the branches were lifted up by the wind when the vehicle accelerated. Some drivers, noting the likelihood that branches might fly off, slowed down to create a greater distance between their vehicle and the defendant’s truck. Witnesses also reported they saw the two boys sitting on top of the branches, trying to hold them down.

As the truck proceeded down Southeast 14th Street, a combination of wind and the vehicle’s momentum caused the unsecured branches to blow up in the air, taking the defendant’s nephews with them. The boys were hurled to the concrete pavement, sustaining fatal head injuries.

The State charged the defendant with two counts of child endangerment in violation of Iowa Code section 726.6(l)(a), two counts of homicide by vehicle in violation of Iowa Code section 707.6A(2)(a), and one count of driving while barred in violation of Iowa Code section 321.561. The case was tried to the court. The court granted the defendant’s motion for judgment of acquittal on the two homicide-by-vehicle counts, but found the defendant guilty of the remaining charges. After receiving consecutive prison sentences, the defendant appealed.

II. Sufficiency-of-the-Evidence.

A. Claim. The defendant contends the district court erred in denying his motion for directed verdict on the child-endangerment charges. He asserts the State failed to establish his guilt on those counts because the evidence was insufficient to support a finding that he knowingly subjected his nephews to a substantial risk of physical harm.

B. Scope of review. Challenges to the sufficiency of the evidence are reviewed for the correction of errors of law. Arnold, 543 N.W.2d at 602. Our goal is “ ‘to determine whether a rational trier of fact could have found the defendant guilty of the offense charged’ beyond a reasonable doubt.” State v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001) (citation omitted).

C. Discussion. We begin our discussion with a review of the statute under which the defendant was convicted, as the parties disagree on the requirements of this law. The defendant was convicted of violating section 726.6(l)(a), which provides in pertinent part:

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

Iowa Code § 726.6(l)(a). The parties’ dispute centers on the knowledge element of the statute, specifically, whether “knowingly” modifies “acts” or modifies “acts in a manner that creates a substantial risk.”

We recently addressed this precise issue in State v. James, 693 N.W.2d 353 (Iowa 2005). In James, this court held that to establish a violation of section 726.6(l)(a), the State must prove a defendant acted with knowledge that he or she was creating a substantial risk to the child’s safety. 693 N.W.2d at 357. Thus, it is the appreciation of the risk to the child or minor posed by one’s conduct that creates criminal culpability under this statute.

Notwithstanding the defendant’s protestations to the contrary, we think there is sufficient evidence he acted with the required knowledge. In this regard, we note the defendant’s knowledge may be proved not only by direct evidence, but also by reasonable inferences drawn from the circumstances surrounding the accident. See State v. Miller, 308 N.W.2d 4, 7 (Iowa 1981) (“Knowledge or intent is seldom capable of direct proof, but usually is established from the surrounding circumstances.”).

The trial court specifically found the defendant was aware there was substantial risk associated with children riding in the back end of an unenclosed truck. The court noted the defendant testified his nephews had ridden in the back of the truck on a number of occasions, and each time the defendant would instruct them how to ride there. The court concluded the fact the defendant thought it necessary to instruct his nephews as to how to ride in the back of the truck indicated the defendant’s awareness of the substantial risk to children riding in that location. The court also discounted the defendant’s testimony that the children always obeyed his instructions, observing the defendant had been made aware earlier the same day that one of the boys was not following the rules. Although the defendant contended he had placed the children among the brush, the testimony of witnesses clearly placed the boys atop the brush pile. As the court pointed out, even if the children had been situated down in the brush initially, “the boys, acting as kids do, repositioned themselves” later. The court further observed, “Kids being kids always require close monitoring, especially when they have been placed in questionable safety situations.” We think there was substantial evidence to support the court’s decision on this disputed issue of fact, as the court itself explained in its ruling.

The defendant argues, however, that children have long ridden in the back of pickup trucks and surely adults permitting this activity are not guilty of child endangerment. The problem with the defendant’s example is that the situation presented by the case before us is more egregious than children simply riding in the back of a pickup. Cf Anspach, 627 N.W.2d at 233 (considering the totality of the circumstances in determining whether person would know his actions placed children in articulable danger). The bed of the defendant’s truck was equipped with side panels, but only had a wooden plank across the end that provided little protection against persons or branches falling or being blown out the back of the truck. Moreover, the children were young, and the defendant had placed them amidst improperly loaded tree limbs that had not been secured to the truck bed. It was easily foreseeable that the branches might be blown off the truck, taking the children with them. See Miller, 308 N.W.2d at 7 (stating knowledge may be inferred from circumstances). Such an event presented a substantial risk to their safety. That is all the State was required to prove: defendant’s knowledge that the children were in a position of substantial risk. See State v. Riggs, 2 S.W.3d 867, 873 (Mo.1999) (holding, under identical statutory language, that prosecution need not prove defendant knew death would result from his conduct, only that child would be endangered by his conduct); see also Anspach, 627 N.W.2d at 232-33 (holding section 726.6(l)(a) does not require proof that injury was likely, only that there was a “very real possibility of danger to a child’s physical health or safety”). Therefore, the trial court did not err in refusing to grant the defendant’s motion for directed verdict on the ehild-endangerment charges.

III. Recusal Issue.

A. Pertinent factual background. After the trial court found the defendant guilty, the defendant filed a complaint against the trial judge with the Commission on Judicial Qualifications. See generally Iowa Ct. R. ch. 52. In addition, he began a letter-writing campaign to the trial judge and the chief judge of the judicial district. In these letters, he complained that the trial judge had misinterpreted the child-endangerment statute and suggested there was a conspiracy to convict him.

The trial judge then convened a hearing with counsel and the defendant to address the defendant’s continuing contact with the court, which the court viewed as an attempt to influence the court’s sentencing decision and/or the court’s reconsideration of its verdict. The judge advised the defendant that he had read the defendant’s first letter, but all subsequent correspondence had and would be placed in the file unopened. The judge told the defendant that the defendant would have an opportunity at the sentencing hearing to say “anything and everything” that he wanted to tell the court.

At the subsequent sentencing hearing, defense counsel requested that the trial judge recuse himself based on the charges made against the judge by the defendant. The judge refused, stating it appeared to the court that the basis for the defendant’s complaint was the difference in opinion between the defendant and the court as to the proper interpretation of the applicable statutes. Noting this issue related to a legal matter raised in the defendant’s motion in arrest of judgment, the court concluded there was no basis for recusal.

B. Discussion. We review a judge’s recusal decision for an abuse of discretion. Taylor v. State, 632 N.W.2d 891, 893 (Iowa 2001). The court abuses its discretion when its decision is based on untenable grounds or it has acted unreasonably. Id. at 894. “ ‘A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.’ ” Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 796 (Iowa 2001) (citation omitted).

There are also constitutional overtones to a recusal decision in a criminal case because the Due Process Clause requires an impartial judge. See State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994); accord United States v. Meyer, 462 F.2d 827, 836 (D.C.Ct.App.1972). Accordingly, Iowa’s Code of Judicial Conduct provides that “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Iowa Code of Judicial Conduct canon 3(C)(1); accord Mann, 512 N.W.2d at 532. This test for disqualification is an objective one. Mann, 512 N.W.2d at 532. The burden of showing grounds for recusal is on the party seeking recusal. Taylor, 632 N.W.2d at 894.

It appears the defendant claims the trial judge in this case was prejudiced against him due to the defendant’s filing of a complaint against the judge with the Commission on Judicial Qualifications, as well as the defendant’s letter-writing campaign to the trial judge and the chief judge. Canon 3 suggests that a judge’s impartiality might be questioned where the judge “has a personal bias or prejudice concerning a party.” Iowa Code of Judicial Conduct canon 3(C)(1)(a). Only personal bias or prejudice stemming from an extrajudicial source constitutes a disqualifying factor. See State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979). Judicial predilection or an attitude of mind resulting from the facts learned by the judge from the judge’s participation in the case is not a disqualifying factor. See id.; State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976). In addition, “actual prejudice must be shown before a recusal is necessary.” State v. Sinclair, 582 N.W.2d 762, 766 (Iowa 1998).

Upon our review of the record in the present case, we find no grounds for recu-sal that would support a conclusion the trial judge abused his discretion in denying the defendant’s recusal motion. First, the defendant’s criticism of the judge’s interpretation of the controlling statute is not the type of bias that warrants recusal. See Smith, 242 N.W.2d at 324 (stating judge’s “definite views on the law[] create no personal bias since they do not stem from an extrajudicial source”). Secondly, the mere fact the defendant filed a complaint with the Commission does not automatically require recusal. See In re Interest of A.B., 445 N.W.2d 783, 784 (Iowa 1989) (implying recusal was not required “whenever a party claimed there was an appearance of impropriety”). Moreover, the charges made in the complaint — erroneous rulings on legal issues — are not the kind of charges that would lead a reasonable person to question the judge’s impartiality notwithstanding the defendant’s filing of the complaint.

The present case can be contrasted with In re Inquiry Concerning Stigler, 607 N.W.2d 699 (Iowa 2000), wherein this court held the presiding judge should have recused himself. In that case, the judge had expressed a bias towards the party’s attorney due to the attorney’s filing of a complaint against the judge with the Commission on Judicial Qualifications. Stigler, 607 N.W.2d at 708-09. Notably, the allegations of judicial misconduct in the Sti-gler case were much more personal to the judge than the allegations in the case before us. In Stigler, the judge was accused of “improperly [injecting] himself into [a scheduling matter] rather than following regular scheduling procedures.” Id. at 708. In addition, the complaining lawyer alleged the judge “had conducted a hearing without counsel of record who was known to be engaged in another trial in-the same courthouse,” and the judge “had engaged in inappropriate ex parte communications with [the opposing] attorney.” Id. Clearly, such charges would more likely produce an adverse reaction by the judge than would mere allegations that the judge had erred in his interpretation of the law.

The nature of the complaint and the judge’s admitted bias supported disqualification in Stigler. Neither circumstance is present here. We conclude the trial judge did not abuse his discretion in refusing to recuse himself from this case.

IV. Sentencing.

A. Issues. The trial court sentenced the defendant to an indeterminate ten-year sentence on each child-endangerment conviction. See Iowa Code §§ 726.6(2) (classifying child endangerment as a class “C” felony when serious injury results), 902.9 (providing for ten-year sentence for class “C” felony). The defendant was also given an indeterminate two-year sentence on the driving-while-barred conviction. See id. §§ 321.561 (making driving while barred an aggravated misdemeanor), 903.1(2) (providing two-year sentence for aggravated misdemeanors). The court ordered these sentences to run consecutively.

The defendant raises two challenges to his sentencing: (1) the court failed to exercise its discretion in imposing the sentence for his driving-while-barred conviction; and (2) the court considered an improper factor in imposing consecutive sentences on the child-endangerment convictions, namely, the separate and distinct nature of the two victims. We will separately address each contention.

B. Driving-while-barred sentence. “When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose.” State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). With respect to the child-endangerment convictions, the sentence was mandatory — imprisonment—because felonious child endangerment is a forcible felony. See Iowa Code §§ 702.11 (including “felonious child endangerment” as a forcible felony), 907.3 (stating options of deferred judgment, deferred sentence and suspended sentence are not available for forcible felonies). In contrast, driving while barred is an aggravated misdemean- or for which probation is an option. See Iowa Code §§ 321.561 (classifying driving while barred as an aggravated misdemean- or), 907.3 (allowing trial court to defer sentence and assign the defendant to the judicial district department of corrections or to release a defendant on probation upon granting a deferred judgment or suspended sentence, with exceptions not applicable to driving-while-barred offense).

The sentencing court here gave three reasons for denying probation on the driving-while-barred and child-endangerment charges: (1) the defendant’s “prior criminal history”; (2) “it would unduly lessen the seriousness of the offense”; and (3) “probation is not available due to the offenses of child endangerment.” The defendant asserts because the trial court thought it had to sentence the defendant to prison on the driving-while-barred conviction “due to the offenses of child endangerment,” the court failed to exercise discretion on whether he should be granted probation on the driving-while-barred charge.

The State argues that although probation is ordinarily an option for an aggravated misdemeanor, that avenue is barred when the sentence on the aggravated misdemeanor is served consecutively to the sentence on a forcible felony for which imprisonment is mandatory. The State cites Iowa Code section 901.8, which states “if consecutive sentences are specified in the order of commitment, the several terms shall be construed as one continuous term of imprisonment.”

This court interpreted and applied section 901.8 in State v. Kapell, 510 N.W.2d 878, 880 (Iowa 1994). In that case, the defendant was ordered to serve consecutive sentences: a two-year sentence in a state institution subject to the department of corrections and a five-day sentence to be served in the county jail. Kapell, 510 N.W.2d at 879. We held these sentences constituted one continuous term of imprisonment under section 901.8, and so “in determining the propriety of the court’s order, we treatfed] the sentences on both charges as one.” Id. at 880. Noting that section 903.4 required that “any person sentenced to confinement for a period of more than one year shall be committed to the custody of the Department of Corrections,” we held the court’s five-day sentence in the county jail was illegal because the defendant’s combined sentence exceeded one year. Id.

The same reasoning does not apply to sentences on multiple convictions only some of which require mandatory imprisonment. By its own terms, section 901.8 is triggered when “consecutive sentences are specified in [an] order of commitment.” Iowa Code § 901.8 (emphasis added). That prerequisite will not necessarily be met just because one offense mandates confinement, as we will explain.

If a sentencing court chooses to suspend a sentence, the court has authority to “place the defendant on probation upon such terms and conditions as it may require.” Id. § 907.3(3). “Probation” is a procedure under which the defendant is released subject to supervision. Id. § 907.1(4). Accordingly, a defendant placed on probation for a particular offense is not sentenced to confinement on that charge. Thus, there is no order of commitment on the suspended sentence. See id. § 901.7 (“In imposing a sentence of confinement for more than one year, the court shall commit the defendant to the custody of the director of the Iowa department of corrections.” (Emphasis added.)). Consequently, when the suspended sentence is imposed in a case that includes a charge requiring mandatory imprisonment and is made consecutive to the mandatory sentence, section 901.8 is not implicated because the defendant is not committed to serve consecutive sentences. He is committed to serve only the mandatory term of imprisonment; the suspended sentence, for which he is not confined, follows upon completion of the term of imprisonment.

As our discussion illustrates, a sentencing court has the option of sentencing a defendant to confinement on one charge and imposing a consecutive, but suspended, sentence on another charge. While this may be an unusual procedure, section 901.8 does not prevent it. Consequently, the fact that imprisonment was required on the child-endangerment charges in this ease did not preclude the court from giving a consecutive, suspended sentence on the driving-while-barred charge.

Because the sentencing court believed it had no ability to grant probation to the defendant on the driving-while-barred charge, it failed to exercise its discretion to consider a suspended sentence as a sentencing option. For this reason, the sentence on the driving-while-barred charge is vacated, and the case is remanded for sentencing on that conviction. See State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999) (stating a sentencing court’s failure to exercise its discretion “calls for a vacation of the sentence and a remand for resentenc-ing”).

C. Child-endangerment sentences. One of the three reasons given by the court for its decision to impose consecutive sentences was “the separate and distinct nature of the two victims in this matter.” The defendant asserts this fact is an improper factor to consider for purposes of sentencing.

A sentencing court may properly consider the nature of the offense and the attending circumstances in sentencing a defendant. State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). One of the circumstances of the defendant’s criminal conduct here was the fact there were two victims.

Although the defendant relies on our decision in State v. Laffey, 600 N.W.2d 57 (Iowa 1999), we think Laffey is distinguishable because in that case the sentencing court did not rely simply on the existence of multiple victims. In Laffey, the court imposed consecutive sentences for offenses involving two victims based on the difficulty in explaining to the two young victims why the defendant had committed two crimes but had received only one sentence. 600 N.W.2d at 62. We held consideration of the difficulty in explaining the sentence to the victims was improper because any such difficulty did “not go to the nature or severity of the offense” and was “unrelated to the circumstances of the crime.” Id.

In contrast here, the existence of two victims is clearly a circumstance of the crime. In addition, the fact that two deaths resulted from the defendant’s criminal actions increased the severity of the offense. Therefore, we do not think the trial court abused its discretion in considering this fact in choosing an appropriate sentence.

V. Vagueness Claim.

A. Knowledge requirement. The defendant argues that if the mens rea element under section 726.6(l)(a) does not include knowledge of a substantial risk to the child or minor, the statute is unconstitutionally vague. Because we have interpreted section 726.6(l)(a) to require such knowledge, we need not address the defendant’s alternative vagueness challenge to this part of the statute.

B. Custody-or-control-of-a-child- or-minor element. The defendant also challenges as vague the statutory language limiting section 726.6(1) to those having custody or control of “a child or a minor under the age of eighteen with a mental or physical disability.” The defendant contends it is unclear whether the clause, “with a mental or physical disability,” modifies “child” and “minor under the age of eighteen” or just “minor under the age of eighteen.” This question is important, he argues, because his nephews did not suffer from any mental or physical disability. Consequently if the disability limitation applies to children, section 726.6(1) would not apply to this incident.

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); accord State v. Watkins, 659 N.W.2d 526, 535 (Iowa 2003). Statutory terms meet this constitutional test if their meaning “is 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.” State v. Aldrich, 231 N.W.2d 890, 894 (Iowa 1975); accord State v. Hunter, 550 N.W.2d 460, 465 (Iowa 1996). In considering whether the statute is unconstitutionally vague, “we presume the statute is constitutional and give it any reasonable construction necessary to uphold it.” Hunter, 550 N.W.2d at 462.

Importantly, the legislature has defined the term “child” for purposes of the criminal code. Section 702.5 defines “child” as “any person under the age of fourteen years.” If we substitute this definition for the statutory term “child,” the meaning of the statute becomes indisputable. Making the suggested substitution, one can say that section 726.6(1) applies to persons having custody or control of a person under the age of fourteen years or a minor under the age of eighteen with a physical or mental disability. It seems clear to us that the language “with a physical or mental disability” cannot modify “child” because that would make the term “child” unnecessary, as that term would then not expand the range of minors protected by the statute. See Hajek v. Iowa State Bd. of Parole, 414 N.W.2d 122, 124 (Iowa 1987) (noting “rule which presumes the legislature does not intend for words to be redundant”). That is because children under the age of fourteen with a physical or mental disability would already be included in the statute under the category of minors under the age of eighteen with a physical or mental disability. It is apparent the legislature sought to protect all minors under the age of fourteen and, in addition, minors between the ages of fourteen and eighteen who had a physical or mental disability.

We conclude the meaning of section 726.6(1) is easily ascertainable by reference to the statutory definition of “child” provided by the legislature. Therefore, the statute gives fair warning of the prohibited conduct and does not violate the void-for-vagueness doctrine.

VI. Summary.

The evidence is sufficient to support the trial court’s finding the defendant knowingly acted in a manner that created a substantial risk to the physical safety of the children in his custody. In addition, the trial judge did not abuse his discretion by failing to recuse himself after the defendant filed a complaint against the judge with the Commission on Judicial Qualifications.

The trial court failed to exercise its discretion to consider probation as a sentencing option on the driving-while-barred charge. The requirement that the defendant be sentenced to confinement on the child-endangerment charges did not preclude the option of a suspended sentence on the driving-while-barred charge. The court did not, however, abuse its discretion in determining the appropriate sentences on the child-endangerment charges by considering the fact there were two victims.

Finally, the child endangerment statute is not void for vagueness because its meaning is readily ascertainable.

JUDGMENT OF CONVICTION AND SENTENCE ON CHILD-END ANGERMENT CHARGES AND JUDGMENT OF CONVICTION ON DRIVING-WHILE-BARRED CHARGE AFFIRMED. SENTENCE ON DRIVING-WHILE-BARRED CHARGE VACATED, AND CASE REMANDED FOR RE-SENTENCING ON THAT CHARGE.


author: STREIT, Justice.

text:
    In re the DETENTION OF John J. CRANE, John J. Crane, Appellant.
    No. 04-0606.
    Supreme Court of Iowa.
    Sept. 23, 2005.
    Rehearing Denied Oct. 12, 2005.
    Mark C. Smith, First Assistant State Public Defender, and Matthew S. Sheeley, Assistant State Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Cristen Douglass, Assistant Attorney General, for appellee.
   STREIT, Justice.

John Crane appeals his civil commitment as a sexually violent predator. Crane claims his attorney should have asked for a jury instruction stating he is presumed not to be a sexually violent predator. Because we recently ruled a presumption instruction is not required in chapter 229A proceedings, we affirm. Crane also claims the district court erred when it instructed the jurors they had nothing to do with his confinement or treatment. We find the disputed instruction was not erroneous or misleading.

I.Facts and Prior Proceedings

John Crane has three convictions for assault with intent to commit sexual abuse. Shortly before he was scheduled to be released from his latest stint in prison, the State initiated civil commitment proceedings against him under Iowa’s Sexually Violent Predator Act (SVPA). See generally Iowa Code ch. 229A (2003).

At trial, the State’s expert testified Crane had three mental abnormalities which predisposed him to commit sexually violent acts: sexual sadism, paraphilia, and a personality disorder with anti-social and narcissistic features. The expert concluded Crane was likely to reoffend. A jury found Crane was a sexually violent predator, and he was committed to the custody of the Department of Human Services.

Crane appealed. Crane claims (1) his trial counsel was ineffective because he did not request an instruction that Crane should be presumed not to be a sexually violent predator and (2) the district court erred when it told the jurors they had “nothing to do with [Crane’s] confinement or treatment.”

II. Principles of Review

We generally review a trial court’s decision to give an instruction for correction of errors of law. See, e.g., State v. Walker, 600 N.W.2d 606, 608 (Iowa 1999). We review ineffeetive-assistance-of-counsel claims de novo. In re L.M., 654 N.W.2d 502, 506 (Iowa 2002).

III. The Merits

A. Ineffective Assistance of Counsel

According to Crane, the “principal issue” in this appeal is whether his trial counsel was ineffective. Crane claims his attorney should have requested a jury instruction stating he should be presumed not to be a sexually violent predator.

As a threshold matter, we note that in this appeal the State concedes that respondents in chapter 229A proceedings have the right to effective assistance of counsel. Both parties therefore analyze Crane’s first claim according to ordinary ineffee-tive-assistanee-of-counsel jurisprudence. For this reason, we do the same.

To succeed on an ineffective-assistance-of-counsel claim, a defendant must prove (1) trial counsel failed to perform an essential duty and (2) prejudice resulted. State v. Stallings, 658 N.W.2d 106, 108-09 (Iowa 2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Failure to prove either element is fatal to the claim. See State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).

Although the presumption-instruction issue was an open one at the time of Crane’s trial, we recently held respondents in chapter 229A proceedings are not entitled to such an instruction. In re Detention of Palmer, 691 N.W.2d 413, 422-23 (Iowa 2005); see also In re Detention of Seetoalker, 689 N.W.2d 705, 707 (Iowa Ct. App.2004) (anticipating Palmer). As we explained in Palmer, the SVPA is civil in nature. 691 N.W.2d at 422. “Just as the defendant in a tort suit would not be entitled to a jury instruction that he is presumed not to be a tortfeasor, [a chapter 229A respondent] is not entitled to an instruction that he is presumed not to be a sexually violent predator.” Id. Such an instruction is not necessarily improper; rather, it is merely not required by the SVPA or either the federal or state constitutions. Id. at 423.

Because Crane’s underlying argument fails, so too must his ineffeetive-assistanee-of-counsel claim. See In re Detention of Willis, 691 N.W.2d 726, 730 (Iowa 2005). His trial counsel did not fail to perform an essential duty. See Dalton, 674 N.W.2d at 119-20 (rejecting ineffective-assistance-of-counsel claim because underlying claim lacked merit; trial counsel thus did not fail to perform an essential duty).

B. Instruction No. 17

At trial, Crane objected to the following jury instruction dealing with confinement: It is your duty as jurors to determine if the Respondent John J. Crane is or is not a sexually violent predator.

In the event of a verdict that the Respondent is a sexually violent predator, you have nothing to do toith confinement or treatment.

Crane contends the italicized portion of this instruction misstated the law and was confusing.

While Crane admits a jury is not “involved” with postcommitment treatment, he argues a jury decides whether the respondent in a chapter 229A proceeding should be confined. Crane points out that a jury’s finding that a respondent is a sexually violent predator necessarily results in confinement. See Iowa Code § 229A.7(5). He also notes that the definition of a sexually violent predator includes a finding that the person is “likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.” Id. § 229A.2(11) (emphasis added). Crane contends it was wrong to tell the jurors they had “nothing to do with confinement,” when their findings require them to conclude the defendant will probably commit such acts if not confined.

We find nothing erroneous or confusing about the instruction. It is true commitment was a mandatory consequence of the jury’s verdict that Crane was a sexually violent predator. The instruction, however, simply told the jurors that they had to determine whether the respondent was a sexually violent predator and instructed. them not to concern themselves with the consequences of their decision, which might include treatment and confinement. The instruction accurately stated the law.

We recently rejected a similar argument in the criminal context. In State v. Piper, 663 N.W.2d 894 (Iowa 2003), the defendant challenged the following longstanding criminal jury instruction:

The duty of the jury is to determine if the defendant is guilty or not guilty. In the event of a guilty verdict, you have nothing to do with punishment.

Piper, 663 N.W.2d at 914. The defendant in Piper claimed the instruction was incorrect because a verdict of guilty of first-degree murder always results in a mandatory life sentence. Id. at 914-15. In rejecting the argument that such an instruction misleads the jury into believing its verdict would have no effect on confinement, we wrote:

The ... instruction was a correct statement of the law.... If the defendant is suggesting the court’s instruction would lead the jury to believe its determination of guilt or innocence would have no effect on the defendant’s punishment, we find such a suggestion unreasonable. Jurors are simply not that naive. They know that if they find a defendant guilty, he will be punished in some fashion. They also know that the more serious the offense of which the defendant is convicted, the more severe the punishment the defendant will receive. But, as the court instructed, the determination of that punishment does not involve the jury. Because we think the court’s instruction was not erroneous and because the jury could not have been misled by the instruction, we find no basis for reversal in this assignment of error.

Id. at 915 (internal citations omitted).

The same reasoning applies with equal force here. Jurors are not naive; these jurors knew that if they found Crane a sexually violent predator, he would be committed — and probably for a long time. The court’s instruction simply told the jurors they should not concern themselves with Crane’s subsequent treatment or confinement, but rather focus upon whether he was a sexually violent predator. The court’s instruction was not erroneous or misleading.

IV. Conclusion

Crane’s trial counsel was not ineffective for failing to request an instruction that he be presumed not to be a sexually violent predator. Nor did the district court err when it instructed the jurors that they had “nothing to do with confinement or treatment.” We affirm.

AFFIRMED.

      . Sexual sadism is defined as a person who has recurrent sexually arousing fantasies, urges, or behaviors in which the person derives sexual excitement from the psychological or physical suffering of another.

      . Paraphilia refers to recurrent intense sexual fantasies, sexual urges, or behaviors that involve nonconsenting adults.

      . The State makes this concession notwithstanding the fact that chapter 229A proceedings are civil and not criminal in nature, and therefore the Sixth Amendment is not directly implicated. The State posits that because a respondent in a chapter 229A proceeding has a statutory right to counsel, see Iowa Code § 229A.6(1), due process demands the appointed counsel provide effective assistance. This appears to be consistent with precedent. See In re D.W., 385 N.W.2d 570, 579 (Iowa 1986) (applying similar reasoning in termination of parental rights cases); Patchette v.

        State, 374 N.W.2d 397, 398-99 (Iowa 1985) (postconviction proceedings).

      . It may have been more accurate to insert specific terminology relating to the period of confinement in the jury instruction, such as: "In the event of a verdict that the Respondent is a sexually violent predator, you have nothing to do with the period of confinement,” but we do not find the absence of such language erroneous or misleading.