author: CARTER, Justice.

text:
    STATE of Iowa, Employer, Appellee, v. AFSCME IOWA COUNCIL 61, Appellant. AFSCME Iowa Council 61, Appellant, v. State of Iowa and Iowa Department of Human Services, Appellees. Iowa Department of Human Services, Employer, Appellee, v. AFSCME Iowa Council 61, Union, and Craig Dehoet, Grievant, Appellants.
    Nos. 00-1378, 01-0315.
    Supreme Court of Iowa.
    July 17, 2002.
    Michael E. Hansen, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Gordon E. Allen, Deputy Attorney General, for appellee.
   CARTER, Justice.

American Federation of State, County, and Municipal Employees (AFSCME), Council 61, as representative of Cathy Nordyke and Craig DeHoet, employees discharged from the Woodward State Hospital School, now known as the Woodward Resource Center (WRC), appeals from separate district court judgments vacating arbitrators’ awards reinstating Nordyke and DeHoet to the positions they had held prior to their discharges. In each case, the discharge from employment resulted from .a records check pursuant to Iowa Code section 218.13 (1999) that indicated criminal convictions on the part of the discharged employees. The district court in each case determined that the arbitrators’ award reinstating the employment of Nordyke and DeHoet limited or impaired the statutory discharge procedure envisioned by section 218.13, and as a result, both arbitration of the discharge and the award reinstating employment were prohibited by Iowa Code sections 20.17(6) and 20.28. After reviewing the record and considering the arguments presented, we affirm the judgments of the district court on both appeals.

I. The Nordyke Arbitration.

The State of Iowa, through the Department of Human Services (DHS), operates the WRC. Pursuant to Iowa Code section 222.1, WRC provides treatment, training, instruction, care, habilitation and support for persons with mental retardation or other disabilities. AFSCME represents employees of WRC involved in the collective-bargaining unit pursuant to the collective-bargaining agreement. Nordyke was a resident treatment worker at WRC prior to her termination, and is a member of AFSCME.

In 1996 Nordyke was arrested for OWI first offense and driving with a suspended license. In 1998 she was arrested for OWI second offense and for assaulting the arresting officer. Nordyke pled guilty to the charges and served ninety days in the women’s correctional facility.

DHS conducted a criminal-record-check evaluation under Iowa Code section 218.13. It was DHS’s conclusion that Nordyke’s continued reliance on alcohol and the as-saultive nature of her arrest suggested more than a possible hazard for the WRC residents. She was terminated.

Nordyke filed an administrative appeal and participated in a contested-case hearing. The administrative law judge affirmed her termination. She then filed an appeal to the department director. Nor-dyke had also contemporaneously filed a grievance with AFSCME. An arbitration was held, and the arbitrator found “just cause” had not been shown for her termination. The arbitrator ordered the State to reinstate Nordyke, subject to specified conditions.

While Nordyke’s appeal to the director was pending, the State filed a petition to vacate the arbitrator’s award in the district court. In response, AFSCME filed a motion to dismiss and strike, a cross-petition to enforce the arbitrator’s award, and a motion to adjudicate law points. Each was resisted by the State. A hearing was held on June 6, 2000, after which a decision was filed overruling AFSCME’s motions and granting the petition to vacate the award. AFSCME has appealed.

II. The DeHoet Arbitration.

In this companion case, DeHoet was employed as a residential treatment worker at WRC. In February 1999 WRC requested a eriminal-record-check evaluation on DeHoet. The report concluded he had been convicted of simple assault (against his wife) and also had a then-pending domestic abuse assault (against his then-girlfriend).

Upon receipt of this information, De-Hoet was given an opportunity to explain the incidents and his subsequent efforts to change his behavior. In evaluating the factors delineated in section 218.13, DHS determined DeHoet should be terminated because of the assaultive nature of the crimes, the pattern of assault against two different victims, the recent reoffense, and the risk of such behavior toward the residents of WRC.

DeHoet filed an administrative appeal and participated in a contested-case hearing. The administrative law judge affirmed the termination, and his decision was adopted by the department director. DeHoet filed a petition for judicial review. He also filed a grievance with AFSCME, which resulted in an arbitration hearing. The arbitrator issued a decision on February 4, 2000, finding DHS did not have “just cause” to terminate DeHoet and ordered DHS to reinstate him, subject to specified conditions.

On February 22, 2000, AFSCME filed a petition to enforce the arbitrator’s award, and DHS filed a motion to vacate the award. The district court first affirmed the employee’s termination on the petition for judicial review under Iowa Code chapter 17A. It then denied AFSCME’s petition to enforce the award and granted DHS’s petition to vacate the award. AFSCME filed a notice of appeal. Other facts that guide us in deciding this appeal will be discussed in connection with our consideration of the legal issues presented.

III. Standard of Review.

In determining the arbitrability of a grievance, the “threshold” question is ordinarily whether the parties agreed to settle the dispute by arbitration. Postville Cmty. Sch. Dist. v. Billmeyer, 548 N.W.2d 558, 560 (Iowa 1996). The court is obliged to answer the question as a matter of law, based on interpretation and construction of the parties’ agreement. Id. In public employee bargaining cases, the court must also consider whether the applicable provision of the collective-bargaining agreement or a particular portion of an arbitrator’s award are foreclosed by statute. Iowa Code §§ 20.17(6), 20.28.

IV. The Collective Bargaining Agreement.

In the present dispute, the collective-bargaining agreement authorizes the state to “[sjuspend, discipline or discharge employees for proper cause.” This right is specifically discussed in the grievance portion of the agreement, which states:

The parties recognize the authority of the Employer to suspend, discharge or take other appropriate disciplinary action against employees for just cause. The employee who alleges that such action was not based on just cause may appeal a suspension or discharge taken by the Employer beginning with the third step of the grievance procedure. All other disciplinary action shall begin with the first step of the grievance procedure.
Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the grievance procedure. The Employer shall not discipline an employee without just cause, recognizing and considering progressive discipline where applicable.
The Employer shall provide written notification to affected employees prior to beginning an investigation into allegations of child abuse pursuant to Chapter 285A of the Code of Iowa and allegations of dependent adult abuse pursuant to Chapter 235B of the Code of Iowa and at the conclusion of such investigation.

It appears that step three of the grievance procedure is an appeal to the director of the department of personnel- If the grievance cannot be resolved at this level, arbitration is then authorized: “Grievances which have not been settled under the foregoing procedure are eligible for arbitration.” Both Nordyke and DeHoet alleged that they were terminated without “just cause.” Consequently, the collective-bargaining agreement authorized arbitration of the termination grievances unless this was precluded by a specific statutory provision.

Y. The State’s Statutory Defenses.

AFSCME urges that, once arbitra-bility under the collective-bargaining agreement is established, the question for the court is a narrow one, i.e., whether the award drew its essence from the collective-bargaining agreement. This contention is based on our pronouncements in American Federation of State, County & Municipal Employees v. State, 526 N.W.2d 282, 283 (Iowa 1995), and Sergeant Bluff-Luton Education Ass’n v. Sergeant Bluff-Luton Community School District, 282 N.W.2d 144, 148 (Iowa 1979). While this is the standard for resolving most arbitration disputes, there is another consideration in arbitrations arising from the collective-bargaining agreements of public employees. In those cases, we must also consult the applicable statutory law governing public-employee arbitration.

Public employee contracts are creatures of statute. Lee v. Halford, 540 N.W.2d 426, 429 (Iowa 1995); Hammer v. Branstad, 463 N.W.2d 86, 91-92 (Iowa 1990). The right of public employees to organize and collectively bargain is governed by statute, and in creating this process, the legislature is free to limit the bargaining process, what may be contained in a collective-bargaining agreement, and the authority of arbitrators to order specific types of relief.

In the present cases, the State urges that both the arbitration of the dispute and the award are precluded by statute. It bases this argument on the following statutory directives:

If the department determines that a person, who is employed by an institution ... has been convicted of a crime or has a record of founded child or dependent adult abuse, the department shall perform an evaluation to determine whether prohibition of the person’s employment ... is warranted.

Iowa Code § 218.13(3).

In an evaluation, the department shall consider the nature and seriousness of the crime or founded child or dependent adult abuse in relation to the position sought or held, the time elapsed since the commission of the crime or founded abuse, the circumstances under which the crime or founded abuse was committed, the degree of rehabilitation, the likelihood that the person will commit the crime or founded abuse again, and the number of crimes or founded abuses committed by the person involved. The department may permit a person who is evaluated to be employed or reside or to continue employment or residence if the person complies with the department’s conditions relating to employment or residence which may include completion of additional training.

Iowa Code § 218.13(4).

If the department determines that the person has committed a crime or has a record of founded child or dependent adult abuse which warrants prohibition of employment ... the person shall not be employed by an institution.

Iowa Code § 218.13(5) (emphasis added).

No collective bargaining agreement or arbitrator’s decision shall be valid or enforceable if its implementation would ... substantially impair or limit the performance of any statutory duty by the public employer.

Iowa Code § 20.17(6).

A provision of the Code which is inconsistent with any term or condition of a collective bargaining agreement ... shall supersede the term or condition ... unless otherwise provided by the general assembly.

Iowa Code § 20.28.

The State urges that under Iowa Code section 20.28 the so-called “record check” termination procedures contained in section 218.13 are inconsistent with the collective-bargaining agreement. It also urges that Iowa Code section 20.17(6) renders the arbitrator’s decision unenforceable because its implementation would impair the obligation of the DHS to terminate Nordyke and DeHoet under the provisions of Iowa Code section 218.13(5).

We disagree with the State’s first argument and conclude that, for purposes of applying section 20.28, the collective-bargaining agreement is not in conflict with any of the statutory provisions upon which the State relies. However, unlike section 20.28, which only governs the collective-bargaining agreement, section 20.17(6) also governs the arbitrator’s decision. In applying that statute, we agree that the award of the arbitrator does impair a statutory duty of the public employer.

In reaching this conclusion, we are aware that the statutory scheme presented in section 218.13 and particularly the last sentence of subsection 4 thereof does not mandate termination in all cases in which a record check reveals a criminal conviction. Nevertheless, in determining whether the department was under a duty to discharge the employees, we must consider what the department’s evaluation of the facts was and not what it might have been. In the present case, it was the duty of the public employer to move sequentially through the “record check” steps for investigation and evaluation as provided in section 218.13. When, at the evaluation step called for in subsection 5, the department concluded that the criminal activity of Nordyke and DeHoet warranted “prohibition of employment,” it then became the department’s duty to discharge these employees. Viewed in this light, we are convinced that the arbitrators’ awards reinstating these employees impaired the department’s statutory duty to discharge them.

AFSCME urges that we took a different view of section 20.17(6) in Postville Community School District, 548 N.W.2d at 562. In that case, a school district sought to preclude enforcement of an arbitrator’s award reinstating a discharged employee by urging that forcing it to reinstate that employee would impair its general duty to furnish its students a safe environment. We held that the arbitrator’s award did not violate section 20.17(6). We are satisfied that the Postville Community School District case may be distinguished on the basis that, unlike the present dispute, it did not involve a specific statutory directive with respect to the termination of employees. The district court did not err in vacating the arbitrator’s decision reinstating Nordyke and DeHoet.

VI. Other Issues.

Other issues urged by AFSCME in seeking to overturn the district court’s judgments include the contention that the court was required to hold a hearing on its motion to compel arbitration prior to considering the State’s application to vacate the awards. We find no merit in AFSCME’s argument that its motion to compel was required to be separately considered in advance of the State’s motions. Assuming that it was, it would have made no difference in the result. As a result of our interpretation of the controlling statutes, AFSCME would have been destined to fail on its motions to enforce the awards.

AFSCME’s other contention is that the governor, by authorizing state agencies under his control to enter into a collective-bargaining agreement that does not, by language in the contract, limit the scope of an arbitrator’s authority to reinstate a discharged employee, has waived the statutory provisions on which the State relies. We disagree. As we have previously noted, all public employee contracts are creatures of statute, and statutory conditions that are not expressly stated therein will be given the same force and effect as if they had.

We have considered all issues presented and conclude that the judgments of the district court should be affirmed.

AFFIRMED ON BOTH APPEALS.


source: Caselaw Access Project

license: Public Domain

text:
    Dennis FORBES, Appellee, v. John HADENFELDT, Paul Steigleder, Ed Phelps, Ed Suriano, Mark Hutchinson, Greg Bopp, Jeff Turner, Gordon Miller, Tom McKinley, and Dave Fischer, Appellees, v. Rexam, Inc. and Specialty Risk Services, Lienholders, Appellants.
    No. 01-1121.
    Supreme Court of Iowa.
    July 17, 2002.

      Michael C. Walker of Hopkins & Hueb-ner, P.C., Davenport, for appellants.
    Thomas J. Currie and Mark E. Liabo of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellee Dennis Forbes.
   CARTER, Justice.

Rexam, Inc. (Rexam), the employer of Dennis Forbes, appeals from the district court’s order invalidating the workers’ compensation lien that Rexam sought to perfect on Forbes’ cause of action against several coworkers for injuries he sustained in his employment. The district court ruled that the provisions of Iowa Code section 85.22(1) (2001), allowing an employer to be indemnified out' of a recovery of damages from a third party and granting the employer a lien on the claim for such recovery, did not apply in third-party actions against coemployees. After reviewing the record and considering the arguments presented, we disagree with the district court’s interpretation. We reverse the district court’s order and remand the case with directions to reinstate the employer’s lien on the claim for damages in the action against the coemployees.

Forbes was injured when a flammable solvent ignited while he was working in an enclosed area. He was severely burned over seventy percent of his body. He received substantial workers’ compensation benefits from Rexam and its workers’ compensation insurance carrier. He filed an action seeking recovery for his injuries from several coworkers on the theory that their gross negligence was the cause of his being burned. Rexam and its workers’ compensation insurance carrier filed a lien against the potential recovery in that action as provided in Iowa Code section 85.22(1). In response to Forbes’ motion, the district court invalidated the lien. That ruling is the subject of this appeal.

I. The Jurisdictional Issue.

Forbes urges that Rexam’s appeal is improperly taken because the ruling being appealed is not a final judgment. We disagree. The perfection of an employer’s lien on the potential recovery in a third-party tort action by parties who have received workers’ compensation benefits for their injuries is a collateral proceeding that does not relate to the issues between the parties to the tort action.

We believe that the statutory procedure for lienors redeeming from judgments pursuant to Iowa Code section 628.21 is analogous to the section 85.22(1) lien procedure in that it is also entirely collateral to the issues in the primary action. We have held that orders fully resolving lienor status under section 628.21 are final orders for purposes of appeal. Kent Feeds, Inc. v. Stanwood Feed & Grain Co., 186 N.W.2d 593, 596 (Iowa 1971). We are convinced that the result should be the same here. The order of the district court fully resolved the issues in the lien proceeding prior to the time the appeal was taken. We are therefore reviewing a final judgment.

II. The Validity of Rexam’s Lien Under Iowa Code Section 85.22(1).

Prior to 1974, section 85.22 read as follows:

When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against some person other than the employer to pay damages, the employee ... may also maintain an action against such third party for damages.

Iowa Code § 85.22 (1973) (emphasis added). As a result of an amendment enacted by 1974 Iowa Acts chapter 1111, section 2, this statute now reads:

When an employee receives an injury ... for which compensation is payable under this chapter ... and which injury ... is caused under circumstances creating a legal liability against some person, other than the employee’s employer or any employee of such employer as provided in section 85.20 to pay damages, the employee ... may also maintain an action against such third party for damages ....
. 1. If compensation is paid the employee ... the employer by whom the same was paid, or the employer’s insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, with legal interest, except for such attorney fees as may be allowed ... and shall have a lien on the claim for such recovery and the judgment thereon for the compensation for which the employer or insurer is liable....

Iowa Code § 85.22 (2001) (emphasis added).

The 1974 amendment to section 85.22 coincided with a change in the law that granted coemployees the same exclusive-remedy defense that exists for an employer provided, however, that such defense does not prevent recovery for injuries caused by a coemployee’s gross negligence. See 1974 Iowa Acts ch. 1111, § 1. That amendment is reflected in the current version of Iowa Code section 85.20, which provides:

The rights and remedies provided in this chapter ... for an employee ... on account of injury ... shall be the exclusive and only rights and remedies of the employee ... on account of such injury ... against any of the following:
1. Against the employee’s employer.
2. Against any other employee of such employer, provided that such injury ... arises out of and in the course of such employment and is not caused by the other employee’s gross negligence amounting to such lack of care as to amount to wanton neglect of the safety of another.

The sole issue on this appeal involves the meaning to be given the words “other than the employee’s employer or any employee of such employer as provided in section 85.20.” Forbes urges that this language serves to exclude actions against any coemployee from the indemnification and lien provisions of section 85.22(1). Rexam urges that this language is only intended to exclude those coemployees who enjoy the immunity that section 85.20(2) now provides. The words “any employee of such employer as provided in section 85.20” do not, Rexam urges, implicate claims based on gross negligence for which the coemployees do not enjoy the exclusive-remedy defense provided in section 85.20.

We interpret statutes in light of their evident legislative intent, harmonizing them, if possible, with related statutes. Comm’n on Unauthorized Practice of Law v. A-1 Assocs., 623 N.W.2d 803, 807 (Iowa 2001); Doe v. Ray, 251 N.W.2d 496, 500-01 (Iowa 1977). Plain language or plain meaning of a statutory provision is not limited to the meaning of individual terms, but rather, such inquiry requires examining the text of the statute as a whole by considering its context, object, and policy. Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 211 (Iowa 2001).

We are convinced that the employer has the better argument on the meaning of section 85.22. Some indication of the purpose of 1974 Iowa Acts chapter 1111 is found in the title to the bill, which reads: “AN ACT to provide that the right to workmen’s compensation shall be the exclusive remedy to an employee against his employer or fellow employee on account of injury or occupational disease.” We conclude that, consistent with the language of that title, the legislature did two things. First, subject to the gross-negligence exception, it rewrote section 85.20 so as to bestow on coemployees the same exclusive-remedy defense as is enjoyed by the employer. Second, it expanded the “other than” clause in the first unnumbered paragraph of section 85.22 to include not only the employer but also those coem-ployees whoj like the employer, had now been exempted from suit by a claimant who had received benefits under the act. If it had been the intention of the legislature to exclude all coemployees from being subject to tort actions based on work-related injuries, it would not have been necessary to qualify the words “employee of such employer” with the words “as provided in section 85.20.”

We have considered all issues presented and conclude that the judgment of the district court should be reversed. The case is remanded to that court for an order reinstating the lien that Rexam and its workers’ compensation insurance carrier filed pursuant to section 85.22(1).

REVERSED AND REMANDED.

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


author: STREIT, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Ray SULLINS, Respondent.
    No. 02-0396.
    Supreme Court of Iowa.
    July 17, 2002.

      Norman 6. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Ray Sullins, Clive, respondent, pro se.
   STREIT, Justice.

An Iowa attorney is charged with neglect of client matters and improprieties concerning the handling of the retainer fees for six different clients. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with our Grievance Commission against Ray Sul-lins, alleging he violated several ethical rules and the Board recommended we revoke Sullins’ license to practice law. Our review is required by Iowa Court Rule 35.10 (2002). We agree with the Commission’s findings of misconduct and its recommended sanction.

I.Background and Facts

Ray Sullins is again brought before this court on charges of neglect of client matters and improper handling of retainer fees. The Iowa Supreme Court Board of Professional Ethics and Conduct initiated attorney disciplinary proceedings against Sullins based on his unprofessional conduct with six separate clients. All but one complaint alleges neglect of a client’s legal matters. All six complaints allege one or more improprieties concerning Sullins’ handling of his clients’ retainer fees. Two complaints allege Sullins did not inform his clients of his June 1, 2000, suspensión from the practice of law. We will address the details of each charged ethical violation below.

II. Scope of Review

We review the findings and recommendations of the Grievance Commission de novo. Iowa Ct. R. 35.10. We give respectful consideration to the Commission’s findings and recommendations, but are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). The Board has the burden to prove misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000).

III. The Commission’s Findings

The .Commission made numerous findings with respect to seven counts of misconduct against Sullins. The first six counts relate to Sullins’ handling of each of six clients’ cases. The seventh count regards Sullins’ mishandling of retainer fees for five of his clients. We will discuss each count in turn.

A. Count I: John Mersch

.Sullins agreed to represent John Mersch in his pursuit of a civil and criminal action against the bouncers of a bar with whom Mersch fought. Besides the civil action, Sullins led Mersch to believe Sullins could file criminal charges against the bouncers. Mersch’s wife paid Sullins a $500 retainer fee. Sullins did not place this money into a trust account. Sullins never contacted Mersch after the initial contact. After repeated attempts to contact Sullins by telephone, Mersch gave up. Sullins admits he was dilatory in not informing Mersch he could not get criminal charges filed against the bouncers. Based on these facts, the Commission concluded Sullins did neglect Mersch’s case in violation of DR 7-101(A) and DR 1-102(A)(1), (5) and (6). The Commission concluded Sullins earned the $500 retainer and as such was under no obligation to return any of it.

B. Count II: Cason

Shortly after Rebecca Cason married her husband, he was put in jail. Cason contacted Sullins for his help in the dissolution of this marriage. On June 22, 1999, Cason paid Sullins $500 for future services. He did not place this money in a trust account. Sullins did not file the dissolution petition until four months after their initial meeting. He claimed it would make the divorce easier if he waited until after her husband was sentenced. Cason wrote a letter to Sullins firing him and requesting return of her $500. In response, Sul-lins told Cason he would file the dissolution papers immediately. Sullins filed the petition November 2, 1999, but did not complete the dissolution until February 2, 2002. Based on these circumstances, the Commission concluded Sullins neglected Cason’s dissolution and thereby violated DR 7-101(A) (fail to render services to client) and DR 1 — 102(A)(1) (violate disciplinary rule), (5) (conduct prejudicial to justice), and (6) (conduct adversely reflects on fitness to practice law).

C. Count III: Rolek

On April 15, 1999, Dr. Dennis Rolek retained Sullins to challenge findings of the Department of Human Services (DHS) that Rolek abused his son. Rolek gave Sullins a $1000 retainer fee which Sullins cashed the same day and deposited $700 into a trust account. Rolek had thirty days from April 1, 1999, within which to appeal the final DHS decision. Rolek had great difficulty contacting Sullins to see if Sullins filed the appeal. Sullins sent the petition for judicial review to the clerk on May 3, 1999. It was filed on May 4. The DHS filed a motion to dismiss. Sullins did not file a resistance to the motion and he did not appear at the hearing.

Sullins later filed a written resistance to the motion and appeared at a later hearing. The court dismissed the case as it lacked jurisdiction because the petition was not timely filed (thirty days after the April 1 letter). Sulhns admitted there was no excuse for his failure to appear at the original hearing. Sullins attempts to skirt responsibility for the dismissal of Rolek’s petition claiming Rolek’s time to appeal expired before Rolek even sought Sullins’ assistance. This is simply not true. With regard to the $1000 retainer fee, Sullins acknowledged he should have refunded the money to Rolek.

The Commission found Sullins neglected Rolek’s case. Though the initial $1000 retainer fee was not excessive, the Commission concluded Sullins effectively collected an unreasonable fee by not refunding the money Sullins admittedly owed Rolek. The Commission concluded Sullins violated DR 6 — 101(A)(3) (neglect of client’s matter), 7-101(A) (fail to render services to client), 2-106 (collect clearly excessive fee), and l-102(A)(l)(violate disciplinary rule), (5) (conduct prejudicial to justice), and (6) (conduct adversely reflects on fitness to practice law).

D. Count IV: Olson

Aaron Olson hired Sullins as counsel on a domestic relations matter being handled by another attorney whom Olson later terminated. The fee agreement consisted of an initial payment of $500 with another $500 when Olson was able to pay. In receipt of two checks totaling $1000, Sul-lins deposited neither into a trust account. Sullins claimed they agreed the money could be immediately distributed.

On the day of trial, Sullins did not appear. Sullins did not tell Olson of his suspension that began only two weeks before trial. Olson, left to represent himself, attempted to offer several documents into evidence. However, opposing counsel objected because the documents were not provided ten days before trial. The court sustained the objection and Olson could not offer these papers.

Olson claimed he retained Sullins to represent him at mediation on the matter and at trial. Sullins told Olson he might not be available for the trial because of an upcoming vacation or other commitment. Sullins told Olson in the event he could not appear, he would make sure another attorney would represent Olson at trial. Sullins, however, asserts he never promised Olson he would appear in court, represent him in mediation, or -file any documents with the court or opposing counsel. The Commission found Sullins’ testimony more credible than Olson’s. The Commission did not articulate on which issues it found Sullins’ testimony more credible. Despite a credibility finding in favor of Sullins, the Commission still found he violated Iowa Court Rule 35.21 for failing to tell Olson of his suspension and its effect on Sullins’ ability to represent Olson. Knowing he would be unable to represent his client at trial because of the suspension, Sullins should have found another attorney to handle Olson’s case. The Commission concluded Sullins violated DR 6-101(A)(l) (handle a legal matter the lawyer knows that the lawyer is not competent to handle without associating with a lawyer who is competent to handle it) and DR 1-102(A)(1) (violate disciplinary rule), (4) (conduct involving dishonesty), (5) (conduct prejudicial to justice), and (6} (conduct adversely reflects on fitness to practice law).

E. CountV: Brown

In April 1995, Larry Brown hired Sul-lins asking him to: (1) file a contempt action against his ex-wife; (2) file an action to modify child custody provisions of a Texas marriage dissolution decree entered six months earlier; and (3) file a slander action against his ex-wife and her mother. Sullins contends the fee agreement provided $5000 for services already rendered. On April 7, 1995, Brown signed the fee agreement and gave Sullins two money orders for $5000 each. Sullins did not deposit any of this money into a trust account. The court dismissed the contempt action on jurisdictional grounds and Sullins never refiled it. Sullins did not initiate slander proceedings against the ex-wife and her mother. He did file a petition in Iowa to modify the Texas dissolution. Because Sullins did not respond to the ex-wife’s discovery requests, the court entered a $250 sanction judgment against Sullins personally. At the time of the hearing, Sullins had not yet paid this money.

The Commission found Sullins neglected his client’s matter by failing to respond to the discovery requests. However, the Commission concluded Sullins did not violate any disciplinary rules regarding the fee arrangement. The fee arrangement issue was disputed, and it appeared to the Commission Sullins may have earned the first $5000 check Brown gave him at the time Sullins received the money. As to the other $5000 check, the Commission found Sullins did not perform significant work. Sullins failed to file a statement with the board in response to Brown’s complaint. The Commission found Sullins violated DR 6-101(A)(3) (neglect) and 1-102(A)(1) (violate a disciplinary rule), (4) (conduct involving dishonesty), (5) (conduct prejudicial to justice), and (6) (conduct reflects adversely on fitness to practice law).

F. Count VI: Cooper

Jerry Cooper and his wife contacted Sul-lins to determine whether they should pursue litigation regarding the harassment of their daughter at school. Coopers gave Sullins a check for $2500 which Sullins promptly cashed. Though the Coopers asked Sullins to place this money into a trust account, he did not. The Coopers told Sullins to interview a list of people about the harassment. However, Sullins did not contact anyone on this list. Sullins maintains he earned the $2500 retainer but was unable to say how much time he spent on the case. The Commission found Sul-lins collected a clearly excessive fee from the Coopers and failed to return the unearned portion of the retainer.

In November 1999, Sullins appeared before the Commission on charges of “stonewalling” the Board’s inquiries. For this violation, we suspended Sullins’ license to practice law beginning on June 1, 2000. The month of the hearing on this charge was the same month Sullins first met with the Coopers. His last meeting with the Coopers was May 24, 2000. Sullins did not tell the Coopers he had been suspended. Sullins left the Coopers’ case open so they could decide whether they wanted to file a lawsuit. Finding the Coopers’ matter was still pending on June 1, 2000, the Commission concluded Sullins violated Iowa Court Rule 35.21 (failure to inform client of suspension). The Commission also found Sul-lins violated DR 9-102 (all funds paid by chent to lawyer shah be deposited into trust account), DR 2-106(A) (collect clearly excessive fee) and DR 1-102(A)(1) (violate a disciplinary rule), (4) (conduct involving dishonesty), (5) (conduct prejudicial to justice) and (6) (conduct adversely reflects on fitness to practice law).

G. Count VII: Trust Account Violations

Sullins collected a retainer fee from Mersch, Cason, Brown, Rolek, and Olson. Prior to obtaining the retainer fees, Sullins did not perform substantial services for any chent and did not earn a significant portion of the retainer fee. Sullins did not place any of the retainer fees into a trust account, save $700 of Rolek’s $1000 retainer fee. Because Sullins claims his records in each of the above five clients’ cases were stolen, he cannot produce any records to prove where the funds were located. The Commission found Sullins violated DR 9-102 (all funds paid by chent to lawyer shall be deposited into trust account) and 9-103(A) (lawyer shall maintain on a current basis books and records to demonstrate compliance with DR 9-102).

IV. Misconduct

We find the Board has proven by a convincing preponderance of the evidence Sullins violated several rules of professional responsibility. We begin with DR 7-101(A). This rule provides a lawyer shall not intentionally fail to seek the lawful objectives of a client, fail to carry out a contract of employment entered into with a client for professional services, or prejudice or damage a client during the course of the professional relationship. The Board need not prove Sullins intentionally injured his client to show a violation of DR 7-101(A). Comm. on Prof'l Ethics v. Gill, 479 N.W.2d 303, 305 (Iowa 1991). In connection with this rule, Sullins also violated DR 6 — 101(A)(3) which provides a lawyer, shall not neglect a client’s legal matter. Neglect may be proven without evidence of monetary harm. Id. at 306.

Sullins violated DR 7-101(A) with respect to his dealings with clients Mersch, Cason, and Rolek. In each case, Sullins did not perform the tasks his clients required, prejudicing his clients beyond repair. He would not contact his clients and it was virtually impossible for them to get in touch with Sullins. It took him over two and a half years to complete the marriage dissolution. He admits there was no reason for the substantial delay. Sullins also failed to timely appeal a finding of child abuse against his client. Conduct of this nature certainly constitutes neglect.

Next, we find Sullins violated DR 1-102(A)(1), (5), and (6). These rules provide a lawyer shall not violate a disciplinary rule, engage in conduct that is prejudicial to the administration of justice or engage in any other conduct that adversely reflects on the fitness to practice law. Sullins violated this rule with respect to each of the six original complainants. The Commission was correct in its finding that Sullins’ “slipshod” manner of handling his cases resulted in incomplete resolution of his clients’ affairs. Sullins did not file lawsuits, did not comply with discovery requests, and did not investigate his clients’ cases. Certainly, such practices strongly suggest Sullins is not-capable of practicing law at this time. His conduct reflects poorly on his own personal integrity and more generally on the profession of law itself.

With regard to Sullins’ collection of legal fees, he violated DR 2-106(A) which provides a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. We have before shown our contempt for such outrageous conduct pledging to elevate the sanctions for future violations. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Torgerson, 585 N.W.2d 213, 214 (Iowa 1998). Sullins collected a clearly excessive fee from both Rolek and Cooper. Cooper gave Sullins a $2500 retainer fee which Sullins did not deposit into a trust account despite being asked to do so. Sullins did very little, if anything, in furtherance of Cooper’s case. Then, Sullins kept the unearned portion of Cooper’s retainer. Sul-lins also admitted he should have returned the unearned fees to Rolek. Though the original retainer fee of $1000 was not excessive, it was unreasonable for Sullins not to return the portion that he admits should have been refunded to Rolek.

Sullins also violated Iowa Court Rule 35.21 for failure to inform his clients of his suspension from the practice of law. His license to practice law was suspended on June 1, 2000. Sullins, 613 N.W.2d at 656. He did not inform Olson or Cooper of his suspension. Because Sullins did not inform his clients he was suspended from the practice of law, we conclude he also violated DR 1-102(A)(1), (4), (5), and (6). These rules provide a lawyer- shall not engage in conduct involving dishonesty, conduct prejudicial to the administration of justice, and conduct that adversely reflects on the fitness to practice law.

Finally, Sullins violated the rules of professional conduct regarding the handling of clients’ trust accounts in violation of rules DR 9-102 and 9-102(A). “All funds of clients paid to a lawyer ... including advances for costs and expenses, except retainer fees paid on a regular and continuing basis, shall be deposited in one or more identifiable interest-bearing trust accounts .... ” DR 9-102(A). Sullins did not place the funds in a trust account, but he paid himself immediately for services not yet performed.

Sullins first attempts to excuse his conduct claiming the fees were not retainer fees but were “non-refundable, flat fees” not subject to the trust account requirement. However, simply labeling the initial funds as “non-refundable, flat fees” does not save Sullins from his obligation to deposit them into trust accounts. In Ap-land, we stated,

We see the flat fee as nothing more than an advance fee payment which a majority of authorities now agree must be deposited in a client trust account.... Funds remain the property of the client until the attorney earns them.... Requiring lawyers to deposit all advance fee payments in a client trust account provides a “safe harbor” approach for all lawyers, which we adopt. We hold that lawyers must deposit all advance fee payments into a client trust account.

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 55-56 (Iowa 1998). A flat fee will ultimately be in satisfaction of “all work to be done, whether it be relatively simple and of short duration, or complex and protracted.” Id. at 55 (quoting ABA Comm, on Ethics and Profl Responsibility, Informal Op. 1389 (1977)). Requiring lawyers to deposit all advance fee payments into a client trust account “emphasiz[es] the fact that the relationship between the client and the attorney is a fiduciary one.” Id. at 56.

Sullins seems to argue that it does not matter whether he deposits the flat fees into a trust account because the result is the same in either case — the attorney keeps the entire amount. In so arguing, he clearly misunderstands the concept that advance fees are the client’s funds until the attorney earns them. The attorney may only withdraw funds from the trust account as work is done. Then, presuming the flat fee is fair, the attorney is entitled to the entire amount when he or she completes the necessary services.

Sullins also attempts to defend his conduct by asserting client consent to immediately cash the upfront fees waives the obligation to deposit them into a trust account. Contrary to Sullins’ assertions, most of his clients did not recall giving Sullins permission to pay himself upfront. Even if Sullins had permission, DR 9-102(A) still requires a lawyer to deposit all advance fee payments into a client trust account. Allowing permission as an exception to this rule would defeat the strong policy reasons underlying it. See id. Even if a client tells her attorney to withhold funds from a trust account, the attorney’s failure to deposit the funds into a trust account would result in an ethics violation. See State v. Pringle, 233 Kan. 726, 733, 667 P.2d 283, 287-88 (1983). Because Sullins thought that obtaining permission would satisfy any ethical obligations, we are even more confident of his profound misunderstanding of the attorney-client relationship and his ethical responsibilities.

Finally, Sullins also argues he did not violate any ethical rules by failing to provide an accounting of his services because none of his clients requested an accounting. However, we have stated

lawyers accepting advance fee payments must notify their clients in writing of the time, amount, and purpose of any withdrawal of the fee together with a complete accounting. No withdrawal of any part of the fee shall occur until the lawyer has rendered some services.

Apland, 577 N.W.2d at 59. It is clear that a lawyer is obligated to provide an accounting without being specifically asked to do so. Id. Sullins also contends he earned some of the initial “flat fees.” However, the standard we set out above— a lawyer cannot withdraw money until he or she has rendered “some services” — has not been met in this case. In all of his clients’ cases, except Cooper’s, Sullins collected a retainer fee before performing substantial services. He did not deposit any of the retainer money into trust accounts, except perhaps $700 of Rolek’s $1000 retainer. We therefore conclude the Commission has proven by a convincing preponderance of the evidence Sullins violated all of the charged rules of professional responsibility.

V. Sanction

We must determine the appropriate sanction given the serious level of Sul-lins’ pattern of misconduct. In doing so, we consider both mitigating and aggravating circumstances. One such mitigating circumstance is an attorney’s relative emotional and mental stability and its effect on the attorney’s fitness to practice law. The record reflects a real concern that Sullins is functioning at some level of compromised emotional and mental stability. The first indication of this in the record involved Sullins’ handling of the Rolek case. When Sullins did not appear for Rolek’s court hearing on the motion to dismiss, Rolek contacted Sullins. Whén Rolek found Sullins, he “seemed confused, disoriented .... ” Rolek didn’t think Sullins “really knew or remembered that he was supposed to be in court that day.” He further described Sullins as being “in a pretty sad physical and emotional state. He was either impaired by alcohol or drugs or something was impairing his physical performance. He was profoundly depressed. He was crying.” “He was rambling on about problems with his wife, his son, financial problems.” Rolek confronted Sullins about his suspicion of drug or alcohol use, but Sullins denied this allegation. Again at the hearing before the Commission, Sullins said he does not drink or use drugs.

The second indication of mental and emotional instability comes from Sullins himself. He addressed his repeated failure to complete tasks for his clients. Sul-lins repeatedly stated he is not ready to return to the practice of law. In fact, he has not yet petitioned for reinstatement from his last suspension. Sullins believes he may have Attention Deficit Disorder that is preventing him from attending to his professional obligations. In part, Sul-lins attempts to blame his lack of office support staff for his failure to adequately serve his clients. He admits he needs to seek professional help for both his personal and professional problems. Given the circumstances above, Sullins is not fit to continue the practice of law.

In fashioning a sanction we also consider the presence of aggravating factors. When we last dealt with Sullins, he received a stern warning. That warning was a harbinger of what we have before us today. In 1996, Sullins failed to respond to the local bar ethics committee. It was at this point when he was first warned, “[w]hen such inquiries are made, the attorney should bear in mind that our ethics board, or an ethics committee of a local bar association, is serving for this court.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 556 N.W.2d 456, 457 (Iowa 1996). In 2000, we again reprimanded Sullins this time for his sloppy record keeping resulting in his failure to produce requested documents. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 613 N.W.2d 656, 657 (Iowa 2000). There we counseled that

tilt should be unnecessary to again remind Sullins that our ethics board is an arm of this court, a point we tried our best to make clear in Sullins, 556 N.W.2d at 457. Sullins should consider the matter seriously if he is ever again asked to respond to our board’s investigations because any future for him in the profession will be at stake.

Id.

Despite our previous words of warning, Sullins has again failed to comply with the board’s requests to respond to Brown’s complaint. Though he was repeatedly asked to respond to the complaint, Sullins sent two letters merely stalling his substantive response. He in fact never did file a response to Brown’s complaint. Sul-lins also failed to comply with district court discovery requests in the Brown matter resulting in a $250 judgment against Sul-lins. The Board also requested several times that Sullins provide it with a copy of the final dissolution decree in the Cason matter. Sullins never responded. He also failed to timely respond to interrogatories and produce documents in this disciplinary proceeding. Sullins filed incomplete answers to the interrogatories only after the Commission sustained the motion to compel.

Sullins has a long record of prior attorney disciplinary actions. He was first publicly admonished in 1992 for dilatory prosecution of appellate matters. He was barred from handling new appellate cases for two years. Then in 1996, we again publicly reprimanded him for communicating with one of adverse interest while representing his client in the same matter and for “stonewalling” the ethics board of a local bar association. Sullins, 556 N.W.2d at 457. More recently, on June 1, 2000, we suspended Sullins’ license to practice law for one year. The misconduct leading up to his last suspension was much the same as the allegations involved in the complaint before us. The complaints involved failure to communicate with the client, delay and procrastination, poor record keeping, and failure to account for retainer fees. His tardiness has once before led to a malpractice action. See Baltzley v. Sullins, 641 N.W.2d 791 (Iowa 2002).

In sum, Sullins has had numerous opportunities to alter his conduct and conform to the rules of professional responsibility. Despite these chances, he continues to operate with a pattern of serious ethical violations. With his record, we have no reason to believe that if we allow Sullins to petition for reinstatement to practice law in the future he would not continue to violate the rules of professional responsibility. We cannot continue to warn him.

We must bear in mind the purposes of attorney disciplinary proceedings which include: protecting the courts and the public from persons unfit to practice law, vindicating public confidence in the integrity of our system of justice, assuring the public the courts will maintain the ethics of the profession, and deterring other lawyers from similar misconduct. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 332 (Iowa 2000). The evidence clearly shows Sullins should not practice law. His conduct reflects a deep misunderstanding of his obligations as a lawyer and disrespect for this entire profession. We find the seriousness of these violations warrant revocation of his license to practice law. Costs are assessed to Sullins pursuant to Iowa Court Rule 35.25.

LICENSE REVOKED.

      .The rule provides, in part, a lawyer shall not intentionally: (1) Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules, except as provided by DR 7-101(B); (2) Fail to carry out a contract of employment entered into with a client for professional services. DR7-101(A).

      . A lawyer shall not violate a disciplinary rule. DR 1 — 102(A)(1).

      . A lawyer shall not engage in conduct that is prejudicial to the administration of justice. DR 1-102(A)(5).

      . A lawyer shall not engage in conduct that adversely reflects on the fitness to practice law. DR 1 — 102(A)(6).


author: NEUMAN, Justice. CADY, Justice

text:
    Shelley A. HORAK, Administrator of the Estate of Leticia B. Morales, and Antonia Ramona Holguin, Francisco Holguin Morales, and Marc Anthony Abney, Appellees, v. ARGOSY GAMING CO. d/b/a Belle Casino of Sioux City, Iowa, Appellant.
    No. 99-1941.
    Supreme Court of Iowa.
    July 17, 2002.

      Patrick J. McNulty of Grefe & Sidney, P.L.C., Des Moines, Edward L. Wintroub and Steven Renteria of Wintroub, Rinden, Sens <& McCreary, Omaha, Nebraska, for appellant.
    John M. Loeschen of Loeschen & Loes-chen, Burlington, for appellees.
   NEUMAN, Justice.

This is an appeal of the jury’s verdict for the plaintiffs in an action brought under our state’s dram shop act, Iowa Code section 123.92 (1999). Because the dram shop at issue is a riverboat casino, the principal question on appeal is whether the district court erred when it refused to apply federal admiralty law instead of Iowa statutory law. We conclude that because there is no federal maritime dram shop law, federal preemption principles do not apply and the district court properly instructed the jury to consider the casino’s civil liability in accordance with section 123.92.

Although many other errors are cited in the' trial of the case, none warrant reversal. We therefore affirm the judgment entered upon the jury’s verdict.

I. Background.

A jury could have found the following facts. Leticia Morales, a thirty-one year old mother of three children, dropped her daughter off at a birthday party. There she met Juan Jurado and Gerardo Graci-ano. After socializing briefly with the young people, Morales and the two men left the party and headed to the Belle of Sioux City riverboat and gambling casino. The casino is owned by defendant, Argosy Gaming Company.

The record reveals that Morales may have drunk some beer before arriving at the casino, but she was by no means intoxicated. That situation soon changed. While Jurado and Graciano played blackjack, Morales began ordering cocktails and playing the slot machines. Estimates of how many drinks Morales consumed over the next three or four hours varied widely, but witnesses described her as becoming very inebriated. Her loud and obnoxious behavior eventually led security officers to forcibly remove her from the boat. “When she attempted to start her car, police were called to the scene. Jurado and Graciano, who had not been drinking, convinced officers to let them get her home. The trio left with Graciano behind the wheel of Morales’ car.

What happened in the next hour is the subject of some dispute. Graciano, unfamiliar with operating a manual transmission, quickly stalled Morales’ car. He testified that this angered Morales, who demanded that she be allowed to drive and literally kicked him out of the vehicle. He said that Jurado got out of the car as well, and the two walked to his house and then to a nearby convenience store. Ju-rado, on the other hand, testified that he asked to be dropped off first because he was tired. He said that Graciano joined him within half an hour or so, explaining that Morales had kicked him out of the car and suggesting that they walk to the house where they had first met her to see if she had returned to retrieve her daughter. On the way they stopped at the convenience store.

Upon leaving the convenience store, Ju-rado and Graciano saw emergency vehicles and Morales’ car sitting on its top in the yard of a nearby duplex. An off-duty officer who witnessed the one-car collision testified that he saw the vehicle careening down the street at a high rate of speed. It then missed the turn and flipped over several times, landing against the house. The car’s only passenger — Morales—was thrown from the vehicle. She suffered severe injuries in the collision, including a fatal blow to her head.

A forensic toxicologist reported that, at the time of the accident, Morales’ blood alcohol count was .250, more than twice the legal limit. She was found some distance from the car, partially wrapped in a blanket. A police investigation determined that the blanket came from a motel room rented that night by Juan Jurado. The motel was located roughly a mile from the scene of the collision.

Suit was brought on behalf of Morales’ three minor children by Shelley A. Horak, administrator of the decedent’s estate. Plaintiffs brought their petition under Iowa Code section 123.92, alleging that the defendant, Argosy Gaming, sold and served intoxicants to plaintiffs’ decedent while she was a patron on defendant’s riverboat casino. The defendant answered with a general denial and asserted the affirmative defense that the injuries and damages claimed neither resulted from, nor were proximately caused by, the alleged intoxication of Leticia Morales.

Following trial, the jury returned verdicts finding the defendant liable for the losses sustained by Morales’ children, assessing damages for past and future loss of parental consortium as follows: $250,000 for Antonia, $500,000 for Francisco, and $500,000 for Marc. Further facts and procedural events will be detailed as they pertain to the issues urged by the defendant on appeal.

II. Issues on Appeal.

A. State law versus maritime law. In advance of trial, Argosy filed an application to adjudicate law points which asserted that federal admiralty law applied, preempting the plaintiffs’ state dram shop claim. The district court rejected the defendant’s assertion, ruling that any decision concerning the applicable law would depend on the facts proved at trial and, even if maritime principles were implicated, Iowa’s statutory dram shop act would not be preempted by federal law. The court reaffirmed its conclusion in response to Argosy’s motions for directed verdict and judgment notwithstanding the verdict urged on the same ground at trial. We review these rulings for correction of errors at law. Iowa R.App. P. 6.4.

Our analysis begins with the fundamental observation that plaintiffs’ suit rests solely on a statutory cause of action. Iowa’s Dramshop Act, section 123.92, provides that anyone injured “in person or property or means of support” as a result of the intoxication of another

has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee ... who sold and served any beer, wine, or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated, or who sold to and served the person to a point where the licensee or permittee knew or should have known the person would become intoxicated.

This court has long recognized that the dram shop statute was enacted because, at common law, no cause of action for negligence could be maintained against one who merely sold alcoholic beverages; as a matter of law, only the drinking of liquor — not the furnishing of it — satisfied the proximate cause element in an action by a third party for damages. Snyder v. Davenport, 323 N.W.2d 225, 226 (Iowa 1982); accord Haafke v. Mitchell, 347 N.W.2d 381, 384 (Iowa 1984), overruled on other grounds by Gail v. Clark, 410 N.W.2d 662 (Iowa 1987). In other words, the statute was “[c]onceived as a means to create liability where none existed at common law.” Slager v. HWA Corp., 435 N.W.2d 349, 354 (Iowa 1989). Because the statute’s benefits are plainly reserved to “innocent parties,” comparative fault principles play no part in the trial of a dram-shop case. Id. at 356, 358; accord Jamieson v. Harrison, 532 N.W.2d 779, 781 (Iowa 1995). And despite subsequent statutory changes and corresponding interpretive commentary by this court, it has remained the rule that “Iowa Code section 123.92 provides the exclusive remedy against liquor licensees and permittees for losses related to the furnishing of alcohol to an intoxicated adult.” Summerhays v. Clark, 509 N.W.2d 748, 750 (Iowa 1993).

Against this backdrop, we consider Argosy’s preemption claim. It is undisputed that the casino derives its authority to sell and serve alcoholic beverages from a license issued by the state of Iowa; it is a licensee as that term is used in section 123.92. Yet Argosy contends that the suit between the parties involves a “maritime tort.” So, the argument continues, the suit is governed by admiralty law, not Iowa’s dramshop statute. For the reasons that follow, we find the argument unpersuasive.

Maritime law. Any attempt to articulate a cogent explanation of the relationship between federal maritime law and state substantive law is a daunting task, at best. As even the Supreme Court has observed, “[i]t would be idle to pretend that the line separating permissible, from impermissible state regulation is readily discernible in our admiralty jurisprudence, or indeed is even entirely consistent within our admiralty jurisprudence.” Am. Dredging Co. v. Miller, 510 U.S. 443, 452, 114 S.Ct. 981, 987, 127 L.Ed.2d 285, 296 (1994) (emphasis added). We begin, then, with the basics.

Consistent with Article III of the United States Constitution, Congress has vested federal district courts with “original jurisdiction, exclusive of the courts of the States” in matters of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1) (2001). This “saving to suitors” clause effectively grants state courts concurrent jurisdiction in cases grounded in admiralty law. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 n. 1 (1989), aff'd, 902 F.2d 959 (11th Cir.1990); 2 Am.Jur.2d Admiralty § 9, at 656 (1996).

General “admiralty” or “maritime” law is not codified. It exists as “a species of judge-made federal common law.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 624, 133 L.Ed.2d 578, 586 (1996). Whether a particular controversy “sounds” in admiralty depends on factors most often discussed in cases where one of the disputants seeks removal from state to federal court or, conversely, dismissal for lack of admiralty jurisdiction. See, e.g., Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 529-32, 115 S.Ct. 1043, 1046-47, 130 L.Ed.2d 1024, 1032-33 (1995) (admiralty jurisdiction properly invoked to permit dredging company protection under Limitation of Vessel Owner’s Liability Act (LVOLA) in action for damages sustained by business owners due to flooding of Chicago River); Duluth Superior Excursions, Inc. v. Makela, 623 F.2d 1251, 1251-52, 1254 (8th Cir.1980) (reversing dismissal of federal court action brought by excursion boat to limit potential liability under LVO-LA for injuries sustained by passenger following “booze cruise” on Lake Superi- or). But to meet the test of admiralty jurisdiction, whether invoked in state or federal court,

a party ... must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved” to determine whether the incident has “a potentially disruptive impact on maritime commerce.” Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.”

Grubart, 513 U.S. at 534, 115 S.Ct. at 1048, 130 L.Ed.2d at 1035 (citations omitted) (emphasis added).

“The exercise of admiralty jurisdiction, however, ‘does not result in automatic displacement of state law.’ ” Yamaha Motor, 516 U.S. at 206, 116 S.Ct. at 623, 133 L.Ed.2d at 585 (citation omitted). When exercising concurrent admiralty jurisdiction, state courts are free to adopt remedies fitting the case, so long as the state law does not undermine general maritime principles or unduly interfere with the harmonious and uniform application of maritime law. Am. Dredging Co., 510 U.S. at 447, 114 S.Ct. at 985, 127 L.Ed.2d at 293; accord Clements v. Gamblers Supply Mgmt. Co., 610 N.W.2d 847, 849 (Iowa), cert. denied, Gamblers Supply Mgmt. Co. v. Clements, 531 U.S. 873, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000); see generally Grant Gilmore <& Charles L. Black, Jr., The Law of Admiralty 48 (2d ed.1975) [hereinafter Gilmore & Black]. Put another way, “where there is a gap in federal maritime law, a state may apply its own law where not inconsistent with federal maritime law.” 2 Am.Jur.2d Admiralty § 142, at 762; see Yamaha Motor, 516 U.S. at 202, 116 S.Ct. at 621-22, 133 L.Ed.2d at 583 (affirming tradition that state remedies apply in maritime wrongful-death cases “in which no federal statute specifies the appropriate remedy and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade”).

Plainly the line marking the contours of this concurrent jurisdiction is not well defined. State court remedies have enjoyed a broad scope, extending to admiralty cases involving state-created liens, remedies for wrongful death and survival actions, the partition and sale of ships, specific performance of arbitration agreements and breach of warranty for maritime insurance. Am. Dredging Co., 510 U.S. at 452, 114 S.Ct. at 987, 127 L.Ed.2d at 296. Yet not all actions grounded in state law have survived federal scrutiny. Notable within this classification are cases sounding in premises liability. In Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 626, 631-32, 79 S.Ct. 406, 407, 410, 3 L.Ed.2d 550, 552, 555 (1959), for example, where the guest of a cruise ship passenger sued the cruise line for injuries sustained in a fall on a stairway of the vessel, the Supreme Court emphatically rejected New York’s premises liability law (with its distinctions between licensee and invitee) in favor of the “settled principle of maritime law” that a ship owner owes a duty of reasonable care under the circumstances toward anyone lawfully aboard the vessel. Ker-marec’s “reasonable care under the circumstances” rule appears to have been consistently followed in other negligence actions tried in admiralty. See, e.g., Keefe, 867 F.2d at 1322; Smith v. S. Gulf Marine Co. No. 2, 791 F.2d 416, 421 (5th Cir.1986); Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2d Cir.1983).

A review of cases where the federal courts have applied state law in an admiralty context is illuminating. In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), the Supreme Court upheld a state supreme court decision applying state workers’ compensation laws to claims of shipbuilding laborers whose land-based injuries fell within the coverage of the federal Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). Rejecting the employer’s claim that the LHWCA preempted state law, the Court observed that Congress intended the federal law to supplement, rather than supplant, remedies for workers, particularly where the injury — although maritime in nature — occurred ashore. Sun Ship, 447 U.S. at 720, 100 S.Ct. at 2436, 65 L.Ed.2d at 463. More recently, in a negligence ease stemming from a fatal jet ski accident off the coast of Puerto Rico, the Court considered the jet ski manufacturer’s claim that federal maritime law preempted available state law remedies because the death occurred in navigable waters, thereby limiting the recoverable damages to funeral expenses. Yamaha Motor, 516 U.S. at 201-02, 116 S.Ct. at 621-22, 133 L.Ed.2d at 583. The Supreme Court rejected this assertion, observing that Congress “has not prescribed remedies for the wrongful deaths of non-seafarers in territorial waters,” so damages available for the jet ski death of plaintiffs’ decedent were properly governed by state law. Id. at 215-16, 116 S.Ct. at 628-29, 133 L.Ed.2d at 592. The Court expressly limited its decision, however, to the remedy available under the saving to suitors clause. It specifically left open the “source — federal or state — of the standards governing liability, as distinguished from the rules on remedies.” Id. at 216 n. 14, 116 S.Ct. at 629 n. 14, 133 L.Ed.2d at 592 n. 14.

Pertinent to the case before us, two noted commentators have observed that one consistent theme seems to emerge from these otherwise murky waters:

Maritime law clearly prevails over inconsistent state law in actions brought under the saving to suitors clause, at least where the maritime law rule is more favorable to plaintiff’s recovery than the state law rule; it is possible that plaintiff may have the best of both worlds and claim the benefit of a state law rule that is more favorable to him than the maritime rule would be.

Black & Gilmore at 279 (emphasis added). This observation is echoed in Yamaha Motor, where the Court acknowledged that its 1970 decision in Moragne v. States Marine Lines, Inc.—which recognized a maritime cause of action for wrongful death caused by breach of the duty of seaworthiness but left undisturbed a state law claim of negligence — centered on the humanitarian extension of relief, not the contraction of it. Yamaha Motor, 516 U.S. at 213, 116 S.Ct. at 627, 133 L.Ed.2d at 590 (emphasis added) (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387, 90 S.Ct. 1772, 1781, 26 L.Ed.2d 339, 349 (1970)). Indeed the Court’s most recent pronouncement — which extended Moragne’s reach to a maritime cause of action for wrongful death stemming from negligence as well as unseaworthiness — clarified its view that congressional intent with respect to maritime law tends to preserve state law claims rather than preempt them, at least insofar as nonseamen are concerned. See Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 819, 121 S.Ct. 1927, 1932-33, 150 L.Ed.2d 34, 42 (2001).

Applying maritime law in the dram shop context. That brings us back to the question at issue: whether this suit on behalf of Morales’ children constitutes a “maritime tort,” as Argosy contends, in which admiralty law preempts Iowa’s dram shop law. Argosy theorizes that because the plaintiffs could have maintained a maritime negligence action against the casino for Morales’ death, they are thereby prevented from grounding their cause of action in a state statute. The plaintiffs counter that, assuming their suit invokes admiralty at all, the lack of a maritime dram shop law necessarily means that application of state law neither undermines general maritime principles nor unduly interferes with the harmonious application of maritime law.

Turning first to the question of admiralty jurisdiction, we conclude that because the statutory harm complained of — the sale and service of alcohol to an intoxicated adult — occurred on a vessel capable of transporting passengers on a navigable waterway, the Grubart “location” test for concurrent admiralty jurisdiction is satisfied. See Iowa Code § 99F.l(6)-(8), .1(7) (1999) (defining “excursion gambling boat” to mean self-propelled vessel required to cruise away from dock for minimum number of days during excursion season); cf. Ketzel v. Mississippi Riverboat Amusement Ltd., 867 F.Supp. 1260, 1268 (S.D.Miss.1994), aff'd, Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.1995) (“floating casino” incapable of serving any transportation function held not a vessel for purposes of invoking admiralty jurisdiction). Moreover, the incident arguably satisfies the two prongs of Grubart’s “connection” test: the alleged wrong has a “potentially disruptive impact on maritime commerce” and “shows ‘a substantial relationship to traditional maritime activity.’ ” Grubart, 513 U.S. at 534, 115 S.Ct. at 1048, 130 L.Ed.2d at 1035 (citation omitted); see Duluth Superior Excursions, 623 F.2d at 1252-53 (carrying passengers for hire, supervising their alcohol consumption and providing safe means of disembarking all “related to” traditional maritime activity); Quinn v. St Charles Gaming Co., 815 So.2d 963, 966 (La.Ct.App.2002) (vessel’s alleged failure to su-perase passengers’ on-board alcohol consumption meets Grubart’s connection test). But see Davis v. Players Lake Charles Riverboat, Inc., 74 F.Supp.2d 675, 676 (W.D.La.1999) (short trips by riverboat casino over navigable water not substantially related to traditional maritime activity but merely incidental to primary function as gambling facility and “activity which gave rise to the plaintiffs’ injury, gaming”).

Acknowledging the admiralty character of the case does not resolve the controversy before us, however. The question remains whether, as Argosy contends, maritime law preempts Iowa statutory law. Argosy correctly asserts that ordinary negligence principles have been applied in maritime cases involving intoxicated passengers or crewmembers. See Reyes v. Vantage Steamship Co., 609 F.2d 140, 141-42, 146 (5th Cir.1980) (suit brought by widow of crewman who drowned after unsupervised consumption of large quantity of alcohol aboard “floating dram shop” remanded for comparison of fault between crew member and ship owner); Guinn v. Commodore Cruise Line, Ltd., No. 94 Civ. 5890(TPG), 1997 WL 164290, at *1 (S.D.N.Y. Apr.7, 1997) (court denied summary judgment to cruise ship in negligence action involving passenger’s fall in a stairwell, identifying actionable claims for “negligent service of alcoholic beverages, negligent failure to assist [the passenger] when intoxicated, and negligent maintenance of a stairwell”); Thier v. Dykes Bros., Inc., 900 F.Supp. 864, 866, 879 (S.D.Texas 1995) (in action by cadet/crewman for injuries sustained in car crash, ship owner found negligent for “failing to monitor alcohol consumption onboard, fostering a party atmosphere, and failing to prohibit drunk officers from driving”); see also Bay Casino, L.L.C. v. M/V Royal Empress, 199 F.R.D. 464, 465, 467 (E.D.N.Y.1999) (permitting intervention in action to limit gambling boat’s liability, where interveners asserted boat’s negligence in serving alcohol to underage patron who was later involved in auto accident).

We deem it significant, however, that plaintiffs rest their claims, not on ordinary negligence, but on Iowa Code section 123.92, a statutory remedy preserved to innocent third parties who are allegedly injured by the dram shop’s sale and service of alcohol to an intoxicated adult. Slager, 435 N.W.2d at 351. In comparable cases, federal trial courts have disagreed over whether the foregoing decisions constitute a “maritime dram shop law” that trumps state dram shop laws that either permit, or disallow, actions against purveyors of alcohol. Compare Meyer v. Carnival Cruise Lines, Inc., No. C-93-2383 MHP, 1994 WL 832006, at *4 (N.D.Cal. Dec.29, 1994) (finding no authority supporting claimed federal maritime dram shop law and therefore applying California’s dram shop law), with Young v. Players Lake Charles, L.L.C., 47 F.Supp.2d 832, 837 (S.D.Texas 1999) (existing maritime negligence standards govern issue of dram shop liability to exclusion of Louisiana anti-dram shop legislation).

In wrestling with this decision, we are guided by the fundamental tenet of preemption doctrine that federal law will not preempt state law “absent a clear statement of congressional intent to occupy an entire field” or unless applying state law would conflict with or otherwise frustrate a federal regulatory scheme. Barske v. Rockwell Int’l Corp., 514 N.W.2d 917, 925 (Iowa 1994). Plainly there is no federal maritime statute comparable to Iowa Code section 123.92 governing the rights and liabilities of dram shops or third parties victimized by their patrons. And as the federal trial court in Meyer observed, neither is there a consistent or uniform body of maritime common law imposing tort liability on sellers of alcohol for injuries resulting from their sales. Meyer, 1994 WL 832006, at *4. As the federal trial court in Young rightly observed (while characterizing the maritime common law of negligence as a maritime dram shop law), the problem is that application of some state laws — like the Louisiana anti-dram shop law at issue in Young — would leave innocent parties without a remedy for wrongs committed by navigable dram shops. Young, 47 F.Supp.2d at 837.[] But, in Iowa, where the state law remedy available to plaintiffs such as Morales’ children proves more generous than relief under general maritime negligence law would be, [] we are convinced that the “humane and liberal character” of admiralty law described in Yamaha Motor compels the application of the more beneficent state law. Yamaha Motor, 516 U.S. at 213, 116 S.Ct. at 627, 133 L.Ed.2d at 590. In other words, in the absence of a comprehensive federal scheme with which Iowa’s law would conflict, we are convinced plaintiffs were entitled to pursue their state law claim against Argosy under Iowa Code section 123.92.

In truth it would be absurd to hold that Argosy, carrying dram shop insurance and having secured its gaming license as well as its authorization to sell alcoholic beverages on the condition that it comply with Iowa’s liquor laws, could circumvent the reach of those laws by claiming federal preemption. Just as in Clements, where we wrestled with the preemption question in the context of gambling boat crewmen’s claims of wrongful discharge, we perceive no “fundamental tenet of substantive maritime law” frustrated by the application of section 123.92 to the case before us. Clements, 610 N.W.2d at 850. The district court was correct in so ruling and, accordingly, we affirm its decision on this point.

B. Sufficiency of the evidence. Argosy next argues that plaintiffs tendered insufficient proof on each of the essential elements of their dram shop claim. Thus it contends the court erred by not directing a verdict in Argosy’s favor, either at the close of plaintiffs’ case or in response to Argosy’s motion for judgment notwithstanding the verdict.

On our appellate review of this issue we are obliged, as was the trial court, to view the evidence in the light most favorable to the plaintiffs. Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999). Evidence is substantial if a reasonable person would find it adequate to reach a conclusion. Id. To sustain their cause of action, plaintiffs were required to prove that Argosy, a liquor licensee or permittee, (1) sold and served intoxicating beverages to Leticia Morales when it knew, or should have known, that she was intoxicated or knew, or should have kno\vn, that she would become intoxicated from the drinks served, and (2) that as a proximate result of Morales’ intoxication, the plaintiffs were injured in their person, property or means of support. Iowa Code § 123.92; Hobbiebrunken v. G & S Enters., Inc., 470 N.W.2d 19, 21 (Iowa 1991).

Argosy begins by claiming the record fails to establish that any of its employees actually sold Morales alcoholic beverages or, if they did, that they knew or should have known of her intoxication at the time the drinks were served. The challenge is simply belied by the record made at trial. Morales’ companions, Jura-do and Graciano, both testified that they saw her ordering drinks from casino waitresses and drinking them. Both stated that she became visibly intoxicated, “hanging” on them, swearing, her breath smelling of alcohol as she became increasingly loud and obnoxious. These observations were echoed by casino personnel. One casino waitress who formerly worked with Morales testified that she encountered her sometime before 1 a.m. and knew that, if asked, she could not have served Morales because of her intoxication. The security personnel who eventually ejected Morales from the boat plainly had no doubt about her inebriated state. Thus, although plaintiffs did not produce at trial the actual server (or servers) of the drinks Morales consumed, the record contained substantial circumstantial evidence that Argosy employees sold and served Morales drinks and knew, or reasonably should have known, of her inebriated state when they did so. See Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 346 (Iowa 1991) (requirement that defendant prove “sale” and “service” may be met by proof that establishment sells liquor and generally holds itself out as place where patrons are “ ‘served’ in the ordinary sense of the word'”); Hobbiebrunken, 470 N.W.2d at 22 (knowledge element of section 123.92 may be satisfied by subjective or objective proof of dram shop defendant’s' knowledge).

Argosy also contests the sufficiency of proof on the proximate cause element of plaintiffs’ claim. To the extent it relies on the lack of “eye witness” testimony putting Morales “for sure” behind the wheel of the car during its fatal crash, the argument carries little, if any, weight. An off-duty police officer happened to witness the crash from beginning to end. He found no proof, as Argosy seems to theorize, that one of Morales’ companions may have been driving the car and somehow escaped unscathed. In any event, the question was properly placed before the jury.

The same holds true for the causal relationship between Morales’ intoxication and the accident. Forensic toxicologist, Michael Rehberg, testified that Morales’ blood alcohol count of 0.250 meant that she had consumed roughly seventeen drinks in the five hours preceding her demise. Given her patronage at the casino during that time frame, her level of intoxication, and the proof tendered on how such drinking would impair her ability to drive safely, the court committed no error in refusing to direct a verdict for Argosy.

C. Evidentiary and instructional issues related to proximate cause. Argosy also cites evidentiary and instructional error bearing on its defense of the case. It claims the court’s rulings skewed the jury’s consideration of the proximate cause questions, entitling it-to a new trial.

Evidence of Morales’ undress. When off-duty officer Aaron Clark discovered Morales’ body thrown from her vehicle following the accident, she was naked from the waist down and wrapped in a blanket. Over Argosy’s objection, the district court sustained the plaintiffs’ motion to exclude this detail at trial, concluding the matter of Morales’ undress was more prejudicial than probative on the proximate cause and damage issues awaiting the jury. The court did, however, permit evidence concerning the blanket and the fact that it matched one missing from Jurado’s room at a nearby motel. The record also included the entire police investigative file (with only references to Morales’ nakedness blacked out) which included hearsay statements by neighbors concerning commotion and squealing tires heard near the motel just preceding the accident, the fact “a rape kit was done,” and speculation that perhaps Morales was fleeing a sexual assault when the accident occurred.

Argosy assails the court’s li-mine ruling on appeal, claiming the court prevented it from tendering a crucial piece of evidence supporting its defense that Morales’ companions “may have had more to do with this accident than the facts presented to the jury would indicate.” The defendant also concedes, as it must, that trial courts are granted broad discretion concerning the admissibility of evidence. Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 265 (Iowa 1998). That discretion extends, of course, to the balancing of probative value versus prejudice under Iowa Rule of Evidence 5.403. Johnson v. Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 640 (Iowa 1997). Reversal would be warranted only if the trial court “clearly abused its discretion to the prejudice of the complaining party.” Id.

Argosy contends the court deprived the jury of a “clear picture leading up to the accident,” thereby preventing the jury’s fair consideration of its defense that flight from assailants, not intoxication, was the proximate cause of the accident that took Morales’ life. When the record is considered as a whole, however, we find no basis for disturbing the court’s discretionary ruling. Despite the evidence adduced by Argosy on its “flight” theory of superceding cause, the record contains no proof that it was Morales’ tires heard squealing in the motel parking lot, that she was ever at the motel, or that she was sexually assaulted or fleeing anyone. The investigating officer admitted at trial that any sexual assault theory was purely speculative. Balanced against this conjecture, the court was obliged to weigh plaintiffs’ claim that Argosy’s true intent was to sully Morales’ character and cast doubt on her maternal conduct in the hope of reducing her children’s recovery for her loss. Given these competing considerations, the uncontro-verted proof that it was Morales’ extreme intoxication that impaired her judgment and ability to drive, and the limited value of the evidence of her undress on that proximate cause question, we find neither abuse by the trial court nor substantial prejudice suffered by Argosy as a result of the court’s limine ruling. No ground for reversal appears.

Proximate cause instructions. Argosy contests the jury instructions on two fronts. First it complains the court’s affirmative defense instruction (which told the jury to find for Argosy if Morales’ intoxication did not contribute to the action that injured the plaintiffs) erroneously placed the burden of proof on the defendant and, second, that the jury must have been confused by the proximate cause language in two other instructions. We find no merit in either contention.

The error, if any, in'the court’s instruction concerning Argosy’s affirmative defense was invited by the defendánt and may not now be asserted as a ground for reversal. Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 607 (Iowa 1998); Tilghman v. Chicago & N.W. Ry., 253 Iowa 1339, 1350-51, 115 N.W.2d 165, 172 (1962). The instruction given by the court mirrored not only defendant’s pleading but was nearly identical to the instruction it proposed before trial. Read in isolation, the jury might have believed — as Argosy argued post-trial and urges on appeal— that it bore the burden of proof regarding Morales’ intoxication. But the marshalling instruction placed the burden of proof squarely on the plaintiffs to prove each essential element of their claim. Only if plaintiffs met that burden was the jury then directed to consider Argosy’s defense that Morales’ intoxication did not contribute to her injurious actions.

Argosy also complains of potential confusion between instruction nine — the marshalling instruction — and number twelve which explained that, to recover, plaintiffs had to prove Morales consumed alcohol sold and served by Argosy. When read together, we think the instruction explained, rather than confused, plaintiffs’ dual burden — to prove that Argosy’s conduct caused Morales’ intoxication and that Morales’ intoxication caused plaintiffs’ loss — while accommodating Argosy’s defense that Morales’ intoxication did not contribute to her injurious action.

It is sufficient if the instructions, when read as a whole, accurately state the parties’ contentions and the pertinent law without misleading the jury. Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 575 (Iowa 1997). Here the court followed the uniform instructions, and the jury simply had to choose which version of the facts, plaintiffs’ or defendant’s, it believed and apply the law accordingly. No ground for reversal appears.

D. Damages award. In its motion for judgment notwithstanding the verdict, Argosy contended the jury’s substantial award for the plaintiffs was excessive and without support in the record. On appeal it concedes that “loss of a mother is difficult to measure in money,” but argues that here the jury’s award bore no relationship to non-economic loss, evincing a verdict based erroneously on passion or prejudice. The district court rejected this contention and, we think, rightly so.

Leticia Morales’ children were ages eleven, twelve and fifteen when she met her untimely death. Their testimony at trial was brief but compelling, even as revealed by the cold record on appeal. In their words she was the kind of mother who cheered loudest for their teams at sporting events, brought the best treats to school on birthdays, played with them like a friend, and always lent an attentive ear and loving support in time of trouble. Clearly her excessive partying on the night in question did not accurately reflect her usual devotion as a parent. Plaintiffs’ loss of consortium was, by any measure, enormous and will arguably extend into their adulthood. See Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983) (loss of parent’s guidance and support may decrease over time but is nevertheless recoverable beyond minority of child).

When a verdict falls within a range reasonably supported by the evidence, it is not the court’s role to “interfere with what is primarily a jury question.” Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 662 (Iowa 1969). We accord weight to the trial court’s judgment in the first instance because it had the opportunity to see and hear the witnesses itself. Id. at 660. A verdict should not be set aside unless it is “(1) flagrantly excessive or inadequate; or (2) so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is the result of passion, prejudice or other ulterior motive; or (4) is lacking in evidential support.” Id. at 659; accord Lamb v. Newton-Livingston, Inc., 551 N.W.2d 333, 337 (Iowa Ct.App.1996). Argosy has not met that test here.

E. Consortium damages and life expectancy. Finally, Argosy urges us to limit plaintiffs’ recovery for loss of parental services to their age of majority rather than Morales’ life expectancy. It acknowledges that, to do so, we would have to overrule long-established precedent interpreting Iowa Code section 613.15. See Audubon-Exira, 335 N.W.2d at 150-51; Schmitt, 170 N.W.2d at 665.

We decline Argosy’s invitation to overrule Audubon-Exira and Schmitt. Iowa Code section 613.15 authorizes the recovery of damages for the “value of services and support as ... parent ... in such sum as the jury deems proper.” Thus, in accordance with Uniform Civil Jury Instruction No. 200.20, the court instructed that such damages “are limited in time to the shorter of the child’s or Leticia B. Morales’ normal life expectancy,” established under this record to be 46.71 years. In its damage instruction, the jury was also told to consider other factors bearing on the projected length of Morales’ life, including “prior health, habits, occupation and life style.” Argosy has not persuaded us that these instructions, or the court’s application of our prior decisions, were erroneous or warrant reconsideration.

We have considered all of Argosy’s claims, whether discussed herein or not, and find none meriting reversal and retrial of this case. We therefore affirm the judgment entered upon the jury’s verdict.

AFFIRMED.

All justices concur except CADY, CARTER, and TERNUS, JJ., who dissent.

CADY, Justice

(dissenting).

I respectfully dissent.

Although I agree the Iowa Dram Shop Act applies to this case, I would conclude Argosy should be granted a new trial based on the failure of the trial court to permit evidence at trial that Morales was partially nude at the time of the automobile accident.

The fundamental question presented by this evidentiary issue is whether the trial court abused its discretion in finding the disputed evidence was unfairly prejudicial under Iowa Rule of Evidence 5.403. Admittedly, the abuse of discretion standard is broad. Yet, the proper resolution of this question begins by recognizing that there is a strong assumption that relevant evidence is admissible. 2 Clifford S. Fish-man, Jones on Evidence § ll:10(a), at 283 (7th ed.1994) [hereinafter Jones on Evidence], Under this rule, all relevant evidence is admissible “unless its probative value is ‘substantially outweighed’ by one or more of the negative factors listed in the rule.” Id. This legal standard reveals exclusion of relevant evidence to be “an ‘extraordinary remedy’ that should be used only ‘sparingly.’ ” Id. In other words, relevant evidence should normally be admitted at trial.

The disputed evidence was relevant in this case because it went to the very heart of Argosy’s defense of superseding cause. The law provides that a wrongdoer may be absolved from liability from wrongdoing when an unforeseeable intervening force occurs after the original wrongdoing that substantially contributes to the plaintiffs injuries. See Rieger v. Jacque, 584 N.W.2d 247, 251 (Iowa 1998). In this case, there was evidence that the harm created by Argosy’s wrongdoing was initially abated when Jurado and Graciano assured the police that they would drive Morales home due to her intoxicated condition. More importantly, not only was there evidence that Morales would not have been driving if Jurado and Graciano would have done what they told police they would do, but that she may not have been driving in a frantic and reckless manner without the intervention of some apparent horrifying and frightening force that could only be explained by the evidence that Morales was driving the car naked from the waist down. Without this evidence, the defense of superseding cause was essentially meaningless because there was nothing to show the intervening force exacerbated the original risk of harm created by Argosy. See id.

One of the negative factors under rule 5.403 that may cause relevant evidence to be excluded from trial is where “its probative value is substantially outweighed by the danger of unfair prejudice.” Iowa R. Evid. 5.403. However, evidence is not prejudicial simply because it is unfavorable to the plaintiff. “Relevant evidence is inherently prejudicial to the party against whom it is offered, in the sense that it hurts or damages that party’s chances of winning the law suit.” 2 Jones on Evidence § 11:14, at 293. Thus, evidence is unfairly prejudicial “only if it has potential to influence the jury to decide the case improperly or the jury is likely to attribute excessive probative value to it.” Id. at 294. The trial court apparently believed the evidence would taint Morales’ character and consequently give the jury a reason to improperly reduce her children’s damages for her loss. The reasoning followed by the trial court, and the majority, properly centers on the potential for the jury to improperly decide the case, but the evidence is far from the type that would override the ability of the jury to properly consider the law and the other evidence in the case. See id. It was part of the essential facts of the case.

Courts should not sanitize the evidence of a case so that the complete picture is not presented to the jury under some vague, unsupported belief that the jury would abdicate its responsibility if the actual evidence was presented. There is absolutely nothing to indicate the jury could not use this evidence for the important purpose that it was offered. Moreover, it is an assault on the jury system to withhold it on the basis articulated by the trial court.

The result of this case is contrary to our governing rules of evidence and is an affront to the jury system of justice. It also enlarges the abuse of discretion standard well beyond its intended scope.

CARTER and TERNUS, JJ., join this dissent.

      . The court said:
      If Louisiana wants to establish shoreside casinos and insulate their liability, that is solely Louisiana's business. But, where navigable ships in Louisiana are going to entice residents of Texas and other states to flock in huge numbers to their casinos to drink too much and return home in a murderous condition, the general maritime law should and does afford the endangered pub-lie with a ready and wholly appropriate remedy.

        Young, 47 F.Supp.2d at 837.

      . For example, comparative fault principles would not apply to the trial of a case under section 123.92 because the statute’s benefits are reserved to "innocent parties.” Slager, 435 N.W.2d at 356, 358.