author: TERNUS, Justice.

text:
    Donna K. NICODEMUS, Appellant, v. MILWAUKEE MUTUAL INSURANCE CO., Appellee.
    No. 98-1838.
    Supreme Court of Iowa.
    July 6, 2000.

      Jeffrey A. Kelso and Matthew R. Drev-low of Stamatelos & Kenyon, P.C., West Des Moines, for appellant.
    Samuel C. Anderson and Jim D. De-Koster of Swisher & Cohrt, P.L.C., Waterloo, for appellee.
   TERNUS, Justice.

The issue presented in this case is the reasonableness of an insurance policy provision that shortened the limitations period governing the insured’s claim for policy benefits. In a summary judgment ruling, the trial court upheld the validity of the contractual limitations provision and dismissed the insured’s lawsuit against the insurer on the basis that the insured’s action was not brought within the time period required by the contract. We think the contractual limitations provision at issue here is unreasonable and therefore unenforceable. Accordingly, we reverse and remand.

I. Background Facts and Proceedings.

A. Insurance policy. At the times material to the dispute before us, the appellant, Donna Nicodemus, was insured under a policy of insurance issued by the appel-lee, Milwaukee Mutual Insurance Co. This policy provided underinsured motorist (UIM) coverage, subject to certain conditions and limitations. One condition of coverage was the following provision, commonly known as an exhaustion requirement:

We are not obligated to make any payment under this insurance until the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements.

The other relevant terms of the policy are found in the following paragraph, which places a condition precedent to and a time limitation on actions against the insurer, Milwaukee Mutual:

No suit, action or arbitration proceedings for recovery of any claim may be brought against us until the insured has fully complied with all the terms of this policy. Further, any suit, action or arbitration will be barred unless commenced within two years after the date of the accident.

B. UIM claim. On November 19, 1994, Nicodemus was injured in an automobile accident with an underinsured motorist. She sued the underinsured motorist and settled that lawsuit on October 2, 1997. Nicodemus subsequently filed this action seeking UIM benefits under the Milwaukee Mutual policy on April 10,1998.

Milwaukee Mutual filed a motion for summary judgment, claiming that Nicodemus had failed to file her suit for UIM benefits within two years of the accident and therefore it was barred pursuant to the terms of the contract. Nicodemus resisted the summary judgment motion, claiming that the contractual limitations provision was unenforceable. The district court held that Milwaukee Mutual had validly reduced the statutory limitations period to two years and, since there was no dispute that the present action was filed more than two years after the accident, the action was time barred. The court accordingly granted summary judgment to the insurer and Nicodemus filed this appeal.

II. Scope of Review.

We review a summary judgment ruling on error. See Whicker v. Goodman, 576 N.W.2d 108, 110 (Iowa 1998). “A summary judgment will be affirmed when the moving party has shown no genuine issues of material fact exist and the party is entitled to judgment as a matter of law.” Id.; accord Iowa R. Civ. P. 237(c).

In the present matter, the facts material to the limitations issue are not in dispute. Additionally, the parties have offered no extrinsic evidence with respect to the meaning of the policy terms, so consequently the interpretation of the policy is a question of law for the court. See Whicker, 576 N.W.2d at 110. Therefore, our role is simply to determine whether the district court correctly applied the law to the undisputed facts in deciding that Milwaukee Mutual was entitled to summary judgment. See id.

III. Governing Legal Principles.

We have previously considered the enforceability of contractual limitations provisions in Douglass v. American Family Mutual Insurance Co., 508 N.W.2d 665 (Iowa 1993) and Morgan v. American Family Mutual Insurance Co., 534 N.W.2d 92 (Iowa 1995). The basic rule was established in Douglass: a contractual limitations provision is enforceable if it is reasonable. 508 N.W.2d at 667. Conversely, an unreasonable limitation on the time for bringing an action under the policy is invalid and unenforceable.

The reasonableness of a contractual limitations period is determined in “ ‘light of the provisions of the contract and the circumstances of its performance and enforcement.’ ” Id. at 666 (quoting 1A Arthur L. Corbin, Corbin on Contracts § 218, at 311-12 (1963)); see also Grinnell Mut. Reinsurance Co. v. Employers Mut. Cas. Co., 494 N.W.2d 690, 692 (Iowa 1993) (“An insurance policy is construed as a whole, not by its separate provisions.”). The policy must provide a reasonable period of time for filing actions to recover under the insurance contract. See Douglass, 508 N.W.2d at 668 (citing 44 Am. Jur.2d Insurance § 1879, at 878 (1982)). A contractual limitations provision that would require a plaintiff “ ‘to bring his action before his loss or damage can be ascertained’ ” is per se unreasonable. Id. at 666 (quoting Annotation, Validity of Contractual Time Period, Shorter Than Statute of Limitations, for Bringing Action, 6 A.L.R.3d 1197, 1202-03 (1966)). The Ohio Supreme Court has similarly held that “the validity of a contractual period of limitations ... is contingent upon the commencement of the limitations period on the date that the right of action arising from the contractual obligation accrues.” Kraly v. Vannewkirk, 69 Ohio St.3d 627, 635 N.E.2d 323, 329 (1994).

IV. Application of Law to Milwaukee Mutual Policy.

Nicodemus contends that, when the contractual limitations provision is considered in context with the other requirements of the policy, the limitations provision is unreasonable. As noted earlier, the policy requires that the insured exhaust the tort-feasor’s liability insurance by judgment or settlement in order to trigger coverage under the UIM section of the policy. The UIM coverage also prohibits any suit against the insurer until the insured has complied with all policy terms. The practical effect of these policy provisions is that an insured has no claim for UIM benefits and may not even institute suit against the insurance carrier until she has obtained a judgment against the tortfeasor or reached a settlement with the tortfeasor. See Kuhner v. Erie Ins. Co., 98 Ohio App.3d 692, 649 N.E.2d 844, 848 (1994) (interpreting nearly identical policy provisions). As will be explained, these policy terms have a great impact on the ability of an insured to comply with the two-year contractual limitations provision.

It is important at this juncture of our analysis to point out that the two-year limitations period provided in the policy does not commence on the date that the insured’s claim under the policy accrues. Under general contract principles, the insured’s claim typically accrues and the statute of limitations begins to run upon the insurer’s denial of coverage or refusal to pay. See Hamm v. Allied Mut. Ins. Co., 612 N.W.2d 775, 783 (Iowa 2000). Under the contractual limitations period imposed by the Milwaukee Mutual policy, the limitations period commences at the time of the motor vehicle accident providing the basis for the UIM claim. Thus, the limitations period begins to run before the insured has ascertained the extent of her underinsured damages and before she is permitted, under the policy, to file suit against her insurer.

The operative result of the policy terms, when considered together, is that the insured has two years from the date of the accident (1) to obtain a judgment against the tortfeasor, or alternatively to reach a settlement with the tortfeasor, and (2) to sue the UIM insurer. If the insured is unable to reach a prompt settlement with the tortfeasor, she is put to the difficult task of filing suit against the tortfeasor and taking her case to trial within two years. While this could certainly be done, we note that the legislature has deemed it appropriate to give an injured party two years simply to investigate her claim against a tortfeasor and get her lawsuit on file. See Iowa Code § 614.1(2) (1999). Here, the insurance company is requiring not only that the insured investigate her tort claim and file suit within two years, but also that she conclude her litigation against the tortfeasor and file an action against her insurer within that same two-year period. Thus, the policy makes exhaustion of the tort claim a condition precedent to suit against the insurer, yet starts the limitations period without regard to whether exhaustion has occurred. We conclude that this time frame for filing suit under the policy is unreasonable. See Kuhner, 649 N.E.2d at 848 (holding that nearly identical policy provisions “as a practical matter” deprived the insureds of coverage).

We have not overlooked Milwaukee Mutual’s argument that the insured could simply commence her action against the insurer at the same time she files suit against the underinsured motorist, thereby complying with the two-year limitations period governing both claims. While this course of action is certainly permissible under our UIM statute, see Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 461 N.W.2d 291, 294 (Iowa 1990), it is not allowed by the terms of Milwaukee Mutual’s policy. Under the policy at issue here, the insured has no claim for UIM benefits until she has exhausted her rights against the tortfeasor. Thus, any lawsuit against the insurer seeking UIM benefits before the insured has complied with the exhaustion requirement would be subject to summary judgment. Therefore, the plaintiff does not have the option of simultaneously suing the insurer and the underinsured motorist as suggested by Milwaukee Mutual.

V. Conclusion and, Disposition.

In conclusion, the contractual limitations provision in the Milwaukee Mutual policy, which commences the limitations period before the insured’s claim accrues, is unreasonable and, therefore, unenforceable. Consequently, the district court erred in applying the two-year contractual limitations period in determining whether the insured’s action was timely filed.

In view of the fact that the contractual limitations provision is invalid, the ten-year statutory limitations period governs. See Iowa Code § 614.1(5); Hamm, 612 N.W.2d at 779. The undisputed facts establish that the present action was filed within this ten-year period. Therefore, the insured’s suit is not time barred and Milwaukee Mutual was not entitled to summary judgment on this basis. Accordingly, we reverse the district court’s ruling granting judgment to Milwaukee Mutual and remand the case for further proceedings.

REVERSED AND REMANDED.

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

      . This court recently overruled, in part, both the Douglass and Morgan cases. See Hamm v. Allied Mut. Ins. Co., 612 N.W.2d 775, 780-81 (Iowa 2000). In Hamm, we held that we had erred in our characterization of a policy provision prohibiting coverage "on any claim that is barred by the tort statute of limitations.” 612 N.W.2d at 780. Such policy language merely establishes a general limitation on the scope of coverage; it does not establish the limitations period for asserting a contractual claim for coverage under the policy, as we held in Douglass and Morgan. Id. Our decision in Hamm in no way affected, however, the validity of the legal principles set forth in Douglass and Morgan with respect to the enforceability of a policy provision that actually does shorten the statutory limitations period. We continue to adhere to those legal principles and apply them in the case before us.

      . Milwaukee Mutual relies on an Illinois Appellate Court decision upholding a two-year contractual limitations provision in an under-insured motorist policy that also contained an exhaustion requirement. See Shelton v. Country Mut. Ins. Co., 161 Ill.App.3d 652, 113 Ill.Dec. 426, 515 N.E.2d 235 (1987). We find the reasoning of the Illinois court unpersuasive. In the Shelton case, the court concluded that the exhaustion clause did not determine "when a suit can be filed against [the insurer], but instead qualifie[d] only when it would pay a claim.” 113 Ill.Dec. 426, 515 N.E.2d at 238. Although the court accurately characterized the effect of the exhaustion clause, the court failed to consider the impact of the policy requirement that the insured fully comply with all policy terms before initiating suit against the insurer. Surely one such policy term is that the insured exhaust the limits of any applicable liability policies. The Illinois court's failure to consider this policy provision and its interplay with the exhaustion requirement and the contractual limitations period renders its analysis unconvincing.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    In the Matter of the INQUIRY CONCERNING Sandra HOLIEN, District Associate Judge, Sandra J. Holien, Respondent.
    No. 00-0231.
    Supreme Court of Iowa.
    July 6, 2000.

      Thomas J. Miller, Attorney General, and Richard A. Williams, Assistant Attorney General, for the commission.
    David W. Larson of Moss & Barnett, A P.A., Minneapolis, Minnesota, and Mark McCormick of Belin Lamson McCormick Zumbach, A P.A., Des Moines, for respondent.
   LARSON, Justice.

Pursuant to Iowa Code section 602.2106(1) (1997), our commission on judicial qualifications has applied to this court for an order removing a Marshall County District Associate Judge, Sandra J. Holien, for cause, as provided by section 602.2101. On our de novo review, we order that Judge Holien be removed from office.

I. Rules for Review.

Iowa Code section 602.2106 establishes the procedure for acting on an application by the commission. We consider the application pursuant to rules for appeals in equity suits. Iowa Code § 602.2106(1). Under section 602.2106(3)(a), the supreme court may retire a judicial officer for “permanent physical or mental disability which substantially interferes with the performance of judicial duties.” Under Iowa Code section 602.2106(3)(b), the supreme court may discipline or remove a judicial officer

for persistent failure to perform duties, habitual intemperance, willful misconduct in office, conduct which brings judicial office into disrepute, or substantial violation of the canons of judicial ethics. Discipline may include suspension without pay for a definite period of time not to exceed twelve months.

II. The Charges.

The commission charged violations of eight canons of judicial ethics and two statutory violations under Iowa Code section 602.2106(3)(b) (conduct bringing judicial officer into disrepute and willful misconduct in office).

Judge Holien challenges the commission on all of these charges and attacks the commission’s procedures on several grounds. The procedural grounds urged are: (1) the commission should have appointed an “independent fact finder” to hear the matter, (2) the commission erred in denying the respondent access to the complaints against her, and (3) the commission failed to properly follow our rules of evidence by considering hearsay evidence. The respondent claims her problems giving rise to the complaints were caused, or at least exacerbated, by her having to function in an atmosphere of constant scrutiny and investigation by judicial officers and employees with whom she worked.

III. The Procedural Issues.

A. The independent-fact-finder argument. The respondent contends the commission should have appointed an independent fact finder because its members had been privy, prior to the hearing, to results of the investigation by an assistant attorney general appointed for that purpose under Iowa Code section 602.2104. The respondent begins with the premise that qualification commissioners are judges and therefore subject to the Iowa Code of Judicial Conduct. Judges are prohibited from ex parte communications with the “prosecutor,” as she characterizes the investigator. The respondent cites Canon 3(D)(1) of the Code of Judicial Conduct, which provides that “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.... ”

Iowa Code section 602.1606(1) provides that a “judicial officer” is disqualified from acting in a proceeding if “[t]he judicial officer has ... personal knowledge of disputed evidentiary facts concerning the proceeding.” For purposes of Iowa Code chapter 602, “judicial officer” is defined as

a supreme court justice, a judge of the court of appeals, a district judge, a district associate judge, an associate juvenile judge, an associate probate judge, or a magistrate. The term also includes a person who is temporarily serving as a justice, judge, or magistrate as permitted by section 602.1612 or 602.9206.

Iowa Code § 602.1101(8). Members of the Judicial Qualification Commission are not judicial officers within this definition.

In addition, neither the Iowa Code nor the rules governing the actions of the commission contemplate a deferral to an independent fact finder.' See Iowa Code §§ 602.2101-602.2107; Comm’n on Judicial Qualifications R.P. 1-23. We reject this argument; the statute clearly contemplates that the commission will act as fact finder, and there is no provision for the appointment of an independent body for that purpose.

B. Disclosure of complaints. The respondent argues she was entitled to know who brought complaints against her and the details of those complaints. Denial of that information, she claims, was presumptively prejudicial to her. In In re Stigler, 607 N.W.2d 699 (Iowa 2000), we held that after the filing of specific charges by the commission the judge should be given the same right of discovery as that available to members of other professions who face charges of misconduct before boards or agencies. Stigler, 607 N.W.2d at 706. In Stigler we held that the complaint made against the judge and any documentation submitted by the complainant should have been available to the judge on request at any time after the filing of formal allegations of misconduct. Id. However, as in the Stigler case, the commission’s failure to allow discovery of the complaints in this case did not prejudice Judge Holien because all of the charges against her were set forth in detailed and precise allegations of events in which she was personally involved. See id. at 707.

C. Application of rules of evidence. The respondent claims the commission is required to follow the Iowa Rules of Evidence, and because it had considered inadmissible materials prior to her hearing, she was prejudiced. The commission’s rules provide that “the presentation of evidence shall conform to the Iowa rules of civil procedure and the Iowa rules of evidence insofar as such rules may be applicable to cases tried in equity.” Comm’n on Judicial Qualifications R.P. 14(b). The respondent’s specific objection in this case is that the commission considered the investigative report brought to the hearing. In a letter to the assistant state court administrator, as secretary to the commission, her Minnesota lawyer requested the administrator to ask all members of the commission to return their copies of the report prior to the hearing because they “contain[] volumes of inadmissible conclusions, hearsay, and opinions.” The commission, responding for the court administrator, denied the request. The reason was, at least in part, a pragmatic one: “everybody has read what was in that material [and] there’s really no way for anybody to erase what’s in their mind.”

The respondent does not cite any specific rules of evidence she claims were violated, but we assume her claim is that the report was inadmissible as hearsay. We believe the commission properly considered the investigative report because that is obviously the purpose behind the statute authorizing investigation. An investigation would be meaningless if the commission members were not allowed to consider the results of it prior to deciding what further proceedings were necessary. See Iowa Code § 602.2104(1) (providing for employment of investigator and for alternative resolutions — from informal disposition to formal commission hearing). In order to make those initial determinations, of course, it would be necessary for the commission members to read the investigative report.

We reject this as well as the other procedural arguments raised by the respondent.

IV. The Evidence.

A. Violation of statutory and rule requirements. Iowa Code section 602.1601 provides that “[a]ll judicial proceedings shall be public, unless otherwise specifically provided by statute or agreed to by the parties.”

The commission charges the respondent violated this statute by failing to keep her court open to the public and by creating a de facto closed courtroom by creating a hostile environment. She is also charged with failing to follow the Iowa Rules of Criminal Procedure regarding arraignments and trial settings.

For a time, Judge Holien conducted initial appearances in her office, not allowing even the peace officers guarding the prisoners to be present in chambers. This effectively prevented the county attorney, the public defender, domestic abuse case workers, and the public from being present. Refusal to admit peace officers also created safety concerns. On one occasion, the respondent had her court attendant place a sign on the public doors to her courtroom stating, “Do Not Enter Courtroom When Court is in Session,” on a day when guilty pleas and sentencings were taking place. When members of the public came into her courtroom, she would make inquiries into the reasons why they were there. Many witnesses testified there was an unwritten rule you did not enter her courtroom while a hearing was taking place.

Under Iowa Rule of Criminal Procedure 8(1), once a county attorney files a trial information, the defendant is to be provided a copy of it before entering a plea. The rule also requires either a written arraignment on a prescribed form or a formal arraignment in open court. The rule contemplates that, at the time of the plea, the defendant will inform the court if the defendant is charged in their true name. Aso, in the procedure provided by rule 8, a defendant may enter a guilty plea before a trial date is set and, if the defendant desires more time before disposition, may waive speedy trial.

Judge Holien has persistently followed her own procedures, which clearly violate the procedural requirements of the rules. She conducted arraignments in a way contrary to the provisions of rule 8. When she found probable cause based on the trial information, she approved it by signing it. She would then enter an order setting the arraignment for a time within a few hours of the time the information was filed, often making it impossible for attorneys to meet with them clients prior to entering pleas. Within a few hours of that order, she would sign a document called “record of arraignment,” indicating an arraignment was held, despite the fact it was done without contact with the defendant or their attorney and not in open court. The “record of arraignment” would routinely note a not guilty plea was entered and set the case for trial within four weeks. This method was used to arraign defendants charged with OWI (third offense), a class “D” felony, ordinarily requiring the presence of the defendant unless a written arraignment form is filed. See Iowa R.Crim. P. 25(1).

Judge Holien was also innovative in the way she handled no-contact orders. Iowa Code section 236.5(2) requires the order to state whether a person is to be taken into custody by a peace officer for a violation of the terms of the order. However, Judge Holien did not do this. She seldom used the standardized form and would often simply note “no contact” on the record of initial appearance. Nothing in the order indicated whether a person was to be taken into custody on a violation of the order. Under this practice, there was no record of whether the subject of the order received a copy of it. All parties involved were left to wonder if such “orders” were enforceable. Despite requests by local domestic abuse personnel that the respondent comply with proper procedures, she adamantly refused to do so except for a very brief period after she received a letter urging her to comply with accepted procedures. She soon reverted to her old ways.

We conclude the respondent’s refusal to abide by statute and rules with respect to public access to her courtroom and with respect to accepted procedures violated Canon 1 of our Code of Judicial Conduct (“A judge should uphold the integrity and independence of the judiciary.”). It also violated Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”). Comment A to Canon 2 makes that canon particularly relevant to this case:

A judge should respect to and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. The respondent’s treatment of court personnel, attorneys, and the public. While Judge Holien’s failure to abide by applicable statutes and rules showed a failure to maintain respect for and compliance with the law, most of the testimony at the hearing and the bulk of the commission’s thirty-eight-page report concerned a deeper problem: Judge Holien’s frequent conflicts with almost all of the people with whom she came in contact. These included the chief judge, the other judges of the Second Judicial District, the district court administrator, several court reporters (although at least two apparently had no problems), court attendants, clerk’s office employees, peace officers, domestic violence personnel, department of corrections employees, attorneys, and the public. The depth and breadth of her hostilities must have touched every aspect of her judicial services in Marshall County. She has been like the proverbial bull in a china shop. She refused any meaningful attempts to discuss her problems with the chief judge and, after just one meeting with him, refused to talk to him. She directed him to her lawyer in Minneapolis who spoke for her. It seems the more efforts that were made to resolve the problems the more she dug in her heels.

1. The court reporters. Judge Holien’s relationship with her court reporters became so hostile it was difficult to find reporters for her. In 1994 her relationship with her regular reporter, Karen Hill, became strained. According to the respondent, this was because Ms. Hill was gathering information about the then-county attorney and forwarding it to the county attorney’s opponent in the upcoming election. The respondent complained this was a breach of trust and a “betrayal” of the judge, although the information gathered was public information — primarily the incumbent’s won/lost record in district court. The judge-reporter relationship continued to sour. Judge Holien returned Ms. Hill’s Christmas gift. She stopped talking to Ms. Hill and began to type her own orders and judgment entries that had ordinarily been typed by her court reporter. Because of the escalating level of hostility, Ms. Hill transferred to another judge. Ms. Hill’s replacements, Connie Overberg, and Jodi Vanderheiden, were subjected to sarcastic remarks and other discourteous acts in the courtroom. Ms. Vanderheiden quit because of the judge’s temper.

Brenda Ellefson was another reporter assigned to the judge. One day when she was to report a criminal case, she found that the respondent had announced to court personnel that Ms. Ellefson was an unsuitable reporter (although she clearly was not), and the respondent refused to hear the case. She continued it until a later time, which, according to some of the evidence, caused problems with respect to the defendant’s speedy trial rights.

Because Judge Holien was widely viewed as being abusive toward her court reporters, the court administrator found it impossible to get an official reporter for her. Several roving reporters hired to work with her testified at the commission hearing they were subjected to outbursts of yelling, temper, and public embarrassment at the hands of the respondent. One of the roving reporters said she had a “sick” feeling at the end of the day.

Two temporary reporters, Marey Anderson and Jill Madsen, experienced similar problems. Ms. Anderson testified that the respondent had a terrible temper and was generally snippy to her. Ms. Anderson also observed the respondent making fun of various court personnel in a demeaning way. Jill Madsen was a freelance reporter who testified to similar treatment. The respondent yelled at her for talking with attorneys and criticized her for having conversations with employees in the county attorney’s office. When Ms. Madsen was late getting into the courtroom for some reason, the respondent made sarcastic remarks in the presence of people in the courtroom.

2. Court administration. Judge Hol-ien’s unique manner of conducting arraignments, entering not guilty pleas for defendants and setting their cases for trial without input from any of the attorneys, as already discussed, violated several procedural rules, but it also created problems for court administration. For example, the respondent’s self-created trial schedule placed approximately eighty eases for trial on the same day. The respondent kept her own records. When Judge Newell came to Marshalltown to fill in for Judge Holien after she was suspended, he could not determine how many cases were pending. Not even the clerk’s office could tell him because of the way the respondent had done her private scheduling.

The respondent refused to reply to inquiries from court administrator David Hayward. She even refused to accept a message from the court administrator regarding court reporter scheduling. The respondent accused the court administrator of “spying” on her through others, although there was no evidence of this.

When the court administrator wrote a letter asking the respondent for an explanation of her behavior toward one of her court reporters, the respondent did not reply. Her lawyer in Minnesota, however, responded in rather vague terms. The court administrator was not satisfied, and he wrote to the respondent for further explanation. Again, she did not respond, but her Minnesota lawyer did. He informed the court administrator that a confidential relationship existed between a judge and her court reporter, so the judge did not have to give details as to any problems she was having with her court reporters. In this connection, the court administrator testified:

I tried to talk to Judge Holien on a number of occasions, and, in fact,. I came to Marshalltown in June of ’96 to — and a couple of times to discuss the handling of prisoners. Judge Holien on both occasions told me that she was angry that I was here. She glared at me, and frankly she really — I mean 'it' was just unbelievable how hostile she was.
And, frankly, after that I think in the correspondence there was some notation that she preferred that any contact about these issues would go through her attorney.

The court administrator attempted to set up meetings with the respondent, Chief Judge Schechtman, and the judge’s lawyer in Minnesota — all to no avail. The court administrator summed up his feelings by testifying “frankly, I didn’t want to deal with her any more than I had to.”

3. Trial judges. The respondent’s relationship with her fellow judges in her district was almost nonexistent — often hostile. From July of 1995 until she was suspended in 1999, she did not attend any district or state judicial meetings. She obtained her continuing legal education in Minnesota, apparently dealing with Minnesota law.

As evidence of her hostility, when Judge Newell was first appointed, he came to Marshalltown to observe a district associate judge in action, and he was met with total rejection. He attempted to meet the respondent “just to be friendly.” Judge Holien refused to meet him, and she told a court attendant to inform him she was too busy to see him. As it turned out, she had plenty of time; her scheduled trial had been canceled.

Carlynn Grupp is a district associate judge in the second district. At Chief Judge Schechtman’s request, she called the respondent to discuss sentencing procedures. She testified to a significant change in Judge Holien’s demeanor as compared to earlier in their association. She testified:

Prior to this time when I had called her, if she was in chambers, she would pick up the phone'; and we would visit about whatever the matter was.
On that day when I called her, she picked up the-phone. We basically said hello, and I started to tell her that Judge Schechtman and I had had this conversation,- and I wanted her input.
As soon as we discussed that, she just hung up the phone. She said to 'me words to the effect, “I don’t want to talk to you. You don’t want to talk to me about ‘ this. Call one ' of the other judges.” She just hung up the phone.
And I had never had an experience with her when she would be that way; either professionally when I was just calling her about professional information, or personally. So that was very unusual for me.
I wrote her a letter the next day explaining my questions, what my intent was and basically apologizing if I had done anything that she found was trivial or inappropriate in my approaching her. She did not respond to the letter.
And so I tried over the next month or two several times to telephone her again because I didn’t understand what had happened to our relationship or why she would react in that manner basically also to tell her that I thought that that was probably inappropriate.
When the phone would ring, it simply rang and rang; and it didn’t matter what time of day I would call. She never answered the phone again when I called her.

Judge Carl Peterson is a district judge who offices primarily in the Marshalltown courthouse — although on a different floor from Judge Holien’s. He testified Judge Holien apparently did not like him, although he did not speculate why. Once, when he started to enter an elevator with the respondent, she refused to ride with him, saying she would take a different elevator. Because Judge Peterson saw things going badly between Judge Holien and others in the court system, he attempted to talk to her. The meeting soon turned into a shouting match, with Holien doing most of the shouting. Judge Peterson testified:

I went down there with the idea of trying to see if we can make things better. It just didn’t go well. And I really felt sad coming out of there because I don’t know that I have trouble communicating. And I certainly didn’t in that situation. It just didn’t work.

4. Court attendants. Three court attendants testified about their treatment by the respondent. Margie Mathis was concerned for her safety when the respondent, contrary to law and accepted practice, held initial appearances in her chambers without allowing the presence of peace officers. Ms. Mathis testified that work conditions with the respondent were so unpleasant she decided to resign. Judge Holien apologized and promised to treat her better. She did treat her better for a short time but soon reverted to her old ways. Ms. Mathis testified to public embarrassment at the hands of the judge, angry moods, and bizarre conduct that finally led her to resign permanently.

Two other court attendants, Diane Pen-nell and Annette Lemker, also were the objects of her hostility. Ms. Pennell testified the judge created such stress in her life she went home sick on several occasions. Ms. Lemker resigned because of the judge’s hostilities toward her.

5. Clerk’s office personnel. The respondent treated employees of the clerk’s office as she did others in the judicial system — with rudeness, anger, and hostility.

One employee of the clerk’s office testified that the judge wrongfully accused members of the office of making a rubber stamp of the judge’s signature and using it on court reporter’s certificates. Another employee, Amy Wignall, brought a misdemeanor ticket to the respondent because the magistrate who would have ordinarily handled it had a conflict of interest. The respondent told Ms. Wignall in a rude way that she did not do simple misdemeanors. Ms. Wignall went to a district court judge to take care of the matter, since the respondent had refused to act.

The clerk’s office also had problems with Judge Holien keeping files with stamped documents in her chambers. She refused to return them in a timely manner, causing the clerk’s office to delay the mailing of notices. This led to many arguments between Judge Holien and the clerk’s office.

The respondent also refused to follow the proper procedures with respect to the confidential minutes attached to trial infor-mations on file with the clerk. Judge Hol-ien would discard the envelopes designed to preserve confidentiality and return the files to the clerk’s office without the envelope. The result was that the minutes became open for public view, contrary to law and established procedures.

Frequently, the respondent would enter the clerk’s office shouting for assistance. The clerk found it difficult to find people in her office who were willing to deal with her.

6.Other persons dealing with the respondent. Personnel directly employed in the court system were not the only ones who experienced the wrath of this respondent. Peace officers, attorneys, correction officers, and domestic violence caseworkers, as well as members of the public were also subjected to her hostility.

For example, when peace officers brought prisoners to court, the respondent would make rude and embarrassing remarks to the officers. Several times she asked the officers why they were spying on her. Judge Holien’s attitude became so hostile toward peace officers that in August of 1997 the chief jailer wrote a letter to her asking her to conduct herself in a respectful way when doing initial appearances in the county jail. When the respondent’s treatment of peace officers continued to be rude and intemperate, the Marshalltown Police Department complained to the court administrator. The court administrator contacted Judge Hol-ien, who refused to respond.

7. Attorneys. Although other attorneys testified to hostile treatment, we highlight two specific cases. In one case, the Marshall County Attorney testified the respondent became so angry over a missing file (for which she was apparently responsible) she ordered the defendant back to jail, a move the county attorney thought was harmful to the defendant. In another case, a criminal defendant became so upset with the respondent’s behavior the hearing had to be continued.

Defense attorneys complained their clients’ rights were compromised because of the judge’s unorthodox way of “arraigning” defendants by simply entering an order without input from the attorneys. Defense attorneys attempting to file motions that must be filed within a certain time following arraignment were surprised to hear their time was up before they even knew there had been an “arraignment.” Defense counsel were also surprised to find, when they wanted to press for a speedy trial, that their clients had “agreed” to continuances as to which the defendant and lawyers had no knowledge.

8. Other witnesses. Many other witnesses testified. (There were eighty-four witnesses, and the hearing lasted eight full days.) The gist of the testimony by most of these witnesses was that they had experienced similar encounters: the respondent was volatile, often angry, unwilling to yield even though it was clear she was wrong. She adamantly refused to follow the rules of criminal procedure and the statutory provisions for an open court. She made people fearful of offending her, fearful of working with or for her, or even being in her court. From 1994 until the respondent’s suspension in 1999 hostility and chaos were her trademarks. Civility toward fellow judges, court employees, attorneys, and the public — traits that should be valued by all judges — were almost totally lacking. In fact, her job performance was the antithesis of a judge’s role as envisioned by our Code of Judicial Conduct, which provides:

CANON 3
A Judge Should Perform the Duties of Office Impartially and Diligently
The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of the office prescribed by law. In the performance of these duties, the following standards apply:
A. Adjudicative Responsibilities.
(2) A judge should maintain order and decorum in all proceedings.
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of court staff, court officials, and others subject to the judge’s direction and control.

As already noted, this court has considerable latitude in the sanctions available to it. Under Iowa Code section 602.2106(3)(a), the court may retire a judge for “permanent physical or mental disability which substantially interferes with the performance of judicial duties.” To a layperson looking at the facts of this case, it might appear the respondent has a form of mental illness — perhaps paranoia. However, neither psychiatrist who examined her in connection with this proceeding has made a diagnosis of mental illness. It would, of course, be to the respondent’s advantage for us to order retirement for disability or encourage her resignation, as opposed to our ordering her removal because of the impact removal would have on her retirement benefits. However, there is no factual basis upon which an order could be entered for her physical or mental disability retirement, and of course, a resignation would have to be initiated by the respondent.

The respondent asks us to be “innovative” in our disposition, suggesting a suspension with some form of supervision. We decline to do so. First, it would not be fair to the persons who must deal with the respondent in the performance of her duties because the bizarre conduct we have outlined was exacerbated when the respondent suspected people were watching her. If someone really is watching her, as a suspension would require, we are not at all optimistic about the effect on her behavior. Also, and more important, we believe the respondent is simply and unalterably unsuited to be a judge, and no attempts at behavior modification are going to change that significantly. She simply should not be a judge.

We order the respondent, Sandra J. Holien, removed from office effective thirty days from the filing of this opinion unless the respondent has, in the meantime, resigned her position. In the event she shall have resigned in that time, the State Court Administrator shall certify that fact to this court, and a supplemental order will be filed accordingly.

DISTRICT ASSOCIATE JUDGE REMOVED.

All justices concur except NEUMAN and LAVORATO, JJ., who take no part.


author: CARTER, Justice.

text:
    Donna THOMPSON, Appellant, v. ESTATE OF Raymond E. HERRON, Deceased, Larry E. Herron, Executor, Appellee, and Nancy Metz a/k/a Nancy Rae Herron Metz, Defendant.
    No. 98-1595.
    Supreme Court of Iowa.
    July 6, 2000.

      Robert W. Green, Sioux City, for appellant.
    Randy V. Hefner of Van Werden & Hefner, Adel, for appellee.
   CARTER, Justice.

Motor vehicle tort claimant, Donna Thompson, who commenced this action against the personal representative of a deceased motorist following the reopening of that decedent’s estate appeals from a determination that her claim is barred by the statute of limitations. The appellee is Larry E. Herron, executor of the reopened estate of Raymond E. Herron. After reviewing the record and considering the arguments presented, we agree with the district court’s conclusion that Thompson’s claim -is barred by the personal injury statute of limitations contained in Iowa Code section 614.1(2) (1991). We affirm the judgment of the district court.

This case arose out of an automobile collision that occurred in Crawford County on May 10, 1991, in which Donna Thompson was injured when a car driven by Raymond Herron struck the vehicle in which she was riding. Raymond Herron was killed in the accident. His estate was opened on May 20, 1991, in the Dallas County District Court and was closed on December 17, 1991. On April 26, 1993, Thompson moved to reopen the estate in Dallas County. The district court initially denied that application. On May 6, 1993, Thompson filed suit in Crawford County against the estate of Raymond Herron and others. On November 30, 1995, the Crawford County District Court granted summary judgment against Thompson on her claim against the estate on the basis that Herron’s estate had been closed for more than sixteen months at the time she commenced her action and therefore did not exist as a sueable entity. The dismissal that resulted from this ruling was without prejudice.

A motion for reconsideration was filed with respect to the denial of the application to reopen the estate in Dallas County. The court set that application for hearing, but before the hearing could be held, Thompson appealed the denial of her motion to reopen to this court. She also appealed the dismissal of the Crawford County action.

We affirmed the dismissal of the Crawford County action in Thompson v. Estate of Herron, 561 N.W.2d 33 (Iowa 1997). In Thompson’s appeal of the denial of the petition to reopen, we remanded the proceeding to the district court in Dallas County with instructions to proceed with the hearing that it had contemplated on Thompson’s motion to reconsider her request to reopen. We retained jurisdiction of the appeal. Subsequently, the district court in Dallas County ruled that the existence of liability insurance applicable to Thompson’s claim provided a legitimate basis for' reopening the Herron estate. When the matter was returned to this court following the district court’s altered conclusions, we confirmed the decision to reopen the estate. We concluded that Thompson’s claim may not have been barred by section 633.410 but added the caveat that the district court could proceed with the adjudication of Thompson’s claim “[i]f there are no other legal bars.” In re Estate of Herron, 561 N.W.2d 30, 32 (Iowa 1997). In a footnote to that caveat, we stated “[w]e do not consider or decide if other statutes of limitation bear on Thompson’s claim for damages.” Id. at 33.

Upon remand to the district court for purposes of reopening the estate, Larry E. Herron was reappointed executor. On June 24, 1997, he mailed a copy of a notice to creditors to Thompson. Thereupon, Thompson filed a new action against the Herron estate in Crawford County on July 24, 1997. She served the personal representative with original notice on July 28.

The defendant-executor moved for summary judgment on the ground that the service of original notice upon him was made more than thirty days after notice to creditors in the reopened estate, thus rendering that suit untimely under Iowa Code sections 633.410 and 633.415. The executor also alleged as an affirmative defense that the action was barred by the statute of limitations for personal injuries contained in Iowa Code section 614.1(2). The district court sustained the motion for summary judgment on the latter ground. Thompson has appealed from that ruling.

Although the parties also argue issues concerning the bar of sections 633.410 and 633.415 based on the time constraints contained in those statutes, we need not consider those issues. We agree with the district court that, in any event, Thompson’s refiled claim was barred by Iowa Code section 614.1(2), which provides that actions for injuries to the person must be brought within and not after two years. Thompson’s injury occurred on May 10, 1991. When section 614.1(2) is applied in conjunction with Iowa Code section 614.2, she was required to bring her action within two years of that date.

Iowa Code section 614.2 (1991) provides:

In all cases where by the death of the party to be charged, the bringing of an action against the party’s estate shall have been delayed beyond the period provided for by statute, the time within which action may be brought against the estate is hereby extended for six months from the date of the death of said decedent.

In Malone v. Averill, 166 Iowa 78, 84, 147 N.W. 135, 138 (1914), this court held that the purpose of this statute is to assure that, if a claim against a decedent is not barred at the time of his death, the claimant has at least six months to bring suit even if an applicable statute of limitations runs prior to that time. Obviously, this statute has no application in the present case because the applicable statute of limitations extended well beyond six months following the decedent’s death.

Thompson argues that her claim is saved from the bar of section 614.1(2) by the final paragraph of section 633.415, which reads:

In all cases where by the death of the party to be charged, the bringing of the action against the estate shall have been delayed beyond the period provided by the statute of limitations, the action may be brought if the original notice is served on the personal representative as defendant, and proof of service of notice of such proceeding is filed in the probate proceedings within the time provided for filing claims in section 633.410.

We will assume for purposes of applying this statute that the service of original notice on the personal representative was timely, although there is a suggestion that it was not. We are convinced, however, that notwithstanding this assumption section 633.415 does not save Thompson’s case from the bar of section 614.1(2). Section 614.2 has been in existence since the enactment of 1906 Iowa Acts chapter 151, section 1. The final paragraph of section 633.415 was enacted in 1963 Iowa Acts chapter 326, section 415. Both statutes contain the following language:

In all cases where by the death of the party to be charged, the bringing of an action against the party’s estate shall have been delayed beyond [the applicable statute of limitations]....

Given the exact matching of the introductory language to both provisions, we are convinced that the purpose of enacting the final paragraph of section 633.415 in 1963 was to chart the procedure under the newly enacted probate code for filing a facially barred action that has been saved by section 614.2. Because the latter statute does not save Thompson’s action, she receives no benefit from section 633.415. We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

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


author: McGIVERIN, Chief Justice.

text:
    EXOTICA BOTANICALS, INC., Hodge Greenhouses, Inc., Joan D. Cone d/b/a Treehouse Plants, Donald Wayne Simpson d/b/a Ornamental Horticulture, and Gator Growers Nursery, Inc., on Behalf of Themselves and All Others Similarly Situated, Appellees, v. E.I. Du Pont de NeMours & Company, Inc., Crawford & Company, Thomas M. Burke, Timothy T. Obrigawitch, Edgar S. Woolard, Jr. and Cabaniss & Burke f/k/a Cabaniss Burke & Wagner, Defendants. TERRA INTERNATIONAL, INC. and Mark Kalafut, Nonparty-Appellants. Productora de Semillas, S.A., Appellee, v. E.I. Du Pont de NeMours & Company, Inc., Crawford & Company, Thomas M. Burke, Timothy T. Obrigatwitch, Edgar S. Woolard, Jr., and Cabaniss & Burke f/k/a Cabaniss Burke & Wagner, Defendants. Terra International, Inc. and Mark Kalafut, Nonparty-Appellants.
    No. 98-559.
    Supreme Court of Iowa.
    July 6, 2000.

      Byron Starns and Mary E. Schwind of Leonard, Street & Deinard, Saint Paul, Minnesota, and Patrick Sealey of Heid-man, Redmond, Fredregill, Patterson, Plaza & Dykstra, Sioux City, for appellants.
    Harley S. Tropin and Adam M. Moskow-itz of Kozyak Tropin & Throckmorton, P.A., Miami, Florida, and Robert J. Pier-son of Mayne & Mayne, Sioux City, for appellees.
   McGIVERIN, Chief Justice.

This case involves a question concerning alleged waiver of the attorney work product privilege that was raised in a motion to compel discovery. See Iowa R. Civ. P. 122,134. Iowa attorney Mark Kalafut was served with a subpoena duces tecum, issued by an Iowa district court, ordering him to produce at a deposition certain documents owned by his employer that were in his possession. Kalafut resisted the subpoena in part, arguing that the requested documents constituted attorney work product and were therefore not discoverable. The district court disagreed, finding that by testifying in an unrelated case as to the general subject matter of the requested documents, Kalafut waived any work product privilege that would otherwise preclude discovery of those documents. The district court therefore ordered Kalafut to produce the documents. Kalafut and his employer appealed.

Upon our review, we conclude that although Kalafut disclosed the general subject matter of the requested documents in another case, such limited disclosure does not amount to a waiver of the work product privilege. We therefore reverse the judgment of the district court.

I. Background facts and proceedings.

A. Prior litigation.

Appellant, Terra International, Inc. (Terra), markets and sells a line of farm supply products and application services, including fertilizers, crop protection products, and seed. Terra has its principal place of business in Sioux City, Iowa. Appellant Mark Kalafut is vice-president and general counsel of Terra. Terra also provides product assembly or “formulation” services for other marketers of crop protection products, including for defendant E.I. Du Pont de NeMours & Company, Inc. (Du Pont). Du Pont is a Delaware corporation and is a manufacturer of agricultural products.

From 1988 until 1990, Terra formulated or assembled a fungicide known as Benlate 50 DF (Benlate) at its facility in Arkansas for defendant Du Pont. Benlate is a fungicide designed to control plant disease. Terra’s formulation services consisted of mixing raw chemical ingredients supplied by Du Pont with other materials to create Benlate.

In the summer of 1989, Du Pont informed Terra that Du Pont had received a number of complaints from farmers and growers that trees and plants treated with Benlate were suffering damage. Du Pont later informed Terra that Benlate produced by Terra at its plant in Arkansas was allegedly contaminated with the herbicide atrazine and formally demanded that Terra assume liability for property damage and loss resulting from the use of Benlate due to its contamination with atra-zine.. . In the fall of 1989, and pursuant to its indemnification agreement with Du Pont, Terra began to pay claims brought by growers alleging damage from Benlate. Throughout the next year, Terra’s insurers paid out more than $60 million to settle claims made by Du Pont customers for damages allegedly caused by Benlate.

The disputes between Terra and Du Pont over claims regarding Benlate eventually led to litigation between those two entities. In a settlement agreement dated October 15, 1990, Terra and Du Pont settled certain disputes concerning problems associated with the use of Benlate.

Growers continued to make claims against Du Pont and Terra alleging damage from Benlate. In one particular case, referred to by the parties as the Du Bose case, a peach grower sued Terra and Du Pont in South Carolina. Terra and Du Pont retained Dr. Everett Cowett as a consulting expert in that case in 1991. During the course of the Du Bose litigation, Kalafut learned from Cowett that atrazine levels in the Benlate formulated by Terra could not have caused the damages that were being alleged by growers. During this same time period, Kalafut learned that Du Pont officials had sent a letter to the federal Environmental Protection Agency in September 1989, which revealed that alleged atrazine contamination on the part of Terra was not the cause of the growers’ problems. From this point forward, Cowett worked exclusively for Terra as a consulting expert in Benlate litigation.

In July 1993, a later suit by growers against Du Pont was tried to a jury in Georgia. In that case, which the parties refer to as the Bush Ranch case, Kalafut was called by the plaintiffs as a witness. In response to questions asked by plaintiffs’ attorneys, Kalafut explained how claims against Du Pont for damage allegedly. caused by Benlate contaminated by atrazine were processed and how he learned from Cowett during the 1991 Du Bose litigation that atrazine at the levels found in the Benlate could not have caused the damage to the crops.

B. The present suit.

In June 1997, plaintiffs Exotica Botani-cáls, Inc.' and Productora Semillas, SA (Productora), filed a RICO complaint against Du Pont in Florida state court, alleging that Du Pont manufactured and sold Benlate knowing that the product would cause extensive damage to plaintiffs’ plants.

In October 1997, in pursuing discovery in its Florida case against Du Pont, Exotica served Kalafut with a subpoena duces tecum issued by the Iowa district court. The subpoena ordered Kalafut to appear for a deposition in Iowa to be taken by Exotica and produce a number of documents, including “all documents generated by Everett Cowett relating to his service as an expert witness for you and/or Du Pont, on matters relating to Benlate during 1991 and 1992.” The documents sought by Exotica consist of documents generated by Cowett in his capacity either as a consulting expert for Terra, Du Pont, or both, and are referred to by the parties as the “Cowett documents.” Kalafut refused to produce the requested Cowett documents, alleging that the documents were privileged and not discoverable under Iowa rule of civil procedure 122(a) because they were work product prepared in anticipation of litigation.

Plaintiffs then moved under Iowa rule of civil procedure 134 to compel production of the Cowett documents. Kalafut and Terra again resisted the motion on the basis that the documents constituted work product and were therefore exempt from plaintiffs’ motion to compel. Kalafut also prepared a “privilege log,” a collection of the titles of the documents which Kalafut believed were privileged or otherwise exempt from discovery. Kalafut also provided the Iowa district court with copies of the requested documents and the court reviewed them in camera.

Following a hearing on January 5, 1998, the district court sustained plaintiffs’ motion and ordered Kalafut to produce the “Cowett documents.” Specifically, the court found that by his testimony in the Bush Ranch litigation, Kalafut and Terra had waived any privilege attaching to the Cowett documents and, second, that Exotica had shown substantial need for production of the documents. See Iowa R. Civ. P. 122(c).

Terra and Kalafut appealed the portion of the court’s order requiring production of the “Cowett documents.” On plaintiff Exotica’s motion to dismiss the appeal, we stated that we would treat Terra’s notice of appeal as an application for permission to take an interlocutory appeal and we granted the application.

II. Standard of review.

On review of a district court’s ruling on a discovery matter, we afford the district court wide latitude. See Martin v. B.F. Goodrich Co., 602 N.W.2d 343, 345 (Iowa 1999). We will reverse a ruling on a discovery matter only for an abuse of discretion. See Shook v. City of Davenport, 497 N.W.2d 883, 885 (Iowa 1993). “A reversal of a discovery ruling is warranted when the grounds underlying a district court order are clearly unreasonable or untenable.” Martin, 602 N.W.2d at 345. “A ruling based on an erroneous interpretation of a discovery rule can constitute an abuse of discretion.” Shook, 497 N.W.2d at 885.

III. Work product privilege generally, rule 122(c).

Under Iowa rule of civil procedure 121(b), the rules relating to discovery and inspection “shall be liberally construed and shall be enforced to provide the parties with access to all relevant facts.” Accord Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983).

Pursuant to Iowa rule of civil procedure 122(a), privileged materials are specifically excluded from the scope of permissible discovery. See Squealer Feeds v. Pickering, 530 N.W.2d 678, 683 (Iowa 1995). A party resisting discovery through assertion of a privilege has the burden of showing that a privilege exists and applies. Hutchinson v. Smith Lab., Inc., 392 N.W.2d 139, 141 (Iowa 1986). An asserted privilege is narrowly construed because it is an exception to our rules governing discovery. Id.

Our Iowa rule of civil procedure 122(c) states:

Subject to the provisions of R.C.P. 125, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (a) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

(Emphasis added.) Our rule 122 is modeled after Federal rule of civil procedure 26(b)(3), which is a codification of the “work product” privilege recognized in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Shook, 497 N.W.2d at 886. Cases interpreting federal rule 26(b)(3) provide guidance to us in applying our rule 122. Ashmead, 336 N.W.2d at 199.

We explained the purpose of the work product privilege as follows:

The primary purpose of the work product privilege is to assure that an attorney is not inhibited in his representation of his client by the fear that his files will be open to scrutiny upon demand of an opposing party. Counsel should be allowed to amass data and commit his opinions and thought processes to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client.

Shook, 497 N.W.2d at 888 (quoting In re Murphy, 560 F.2d 326, 334 (8th Cir.1977)). The privilege has also been said “to promote the operation of the adversary system by ensuring that a party cannot obtain materials that his opponent has prepared in anticipation of litigation.” Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir.1997). “The work product doctrine is to be applied in a commonsense manner in light of reason and experience as determined on a case-by-case basis.” Id.

IV. Terra’s disclosures and the district court ruling.

We believe it helpful to identify those disclosures by Mark Kalafut, the general counsel of Terra, upon which the district court relied in finding that Kalafut had waived the work product privilege as to the Cowett documents.

In Bush Ranch v. E.I. Du Pont de Nemours, growers brought suit against Du Pont in Georgia state court claiming damages from the use of Benlate. Although neither Terra nor Kalafut were parties in the Bush Ranch case, Kalafut was called by plaintiffs to testify during the 1993 trial. In his testimony, Kalafut explained how claims filed by growers against Du Pont alleging damage from Benlate were processed and how he learned from Cow-ett in the Du Bose litigation that the alleged atrazine contamination by Terra could not be the source of the growers’ problems. In doing so, Kalafut briefly mentioned Cowett and his opinions regarding Benlate. The relevant excerpts of Ka-lafut’s testimony, along with the court’s limiting instructions, are as follows:

Q. And Dr. Cowett had made known to Du Pont and Terra’s lawyer what?
THE COURT: The only thing, Mr. Pope, I don’t think this witness ought to testify about what the expert said in that trial. I don’t see any reason why he should do that.
MR. POPE: Your Honor, I’m not offering—
THE COURT: If he just wants to testify that he learned as a result of the trial, so and so, why ask him that.
THE COURT: I’m just not going to allow the witness to quote the so-called expert that you refer to. I’m not going to allow him to quote him. That would be hearsay.
Q. When did you learn that the atra-zine thing may have been contrived by Du Pont?
A. [Kalafut] In September or sometime in the late summer or fall, probably in the fall, I learned from Mr. Cowett that atrazine at the levels of contamination in the product formulated by Terra could not have caused the damages that were being alleged.
Q. Now, as a result of all of this, Mr. Kalafut, what happened? A. As a result, of this, I — as a result of learning the statements of Mr. [Cowett], that atra-zine could not have caused the — at the levels involved could not have caused the damage, I decided I would go back and check all correspondence and documents received in Du Pont litigation, and at that point I discovered that that letter was in there. When I’m talking about the letter, I’m talking about the September 12th [1989] letter from Du Pont to the EPA.
Q. All right. Did you say to him, Glen [lawyer for Du Pont], we paid out 65 million dollars, and you never told us that you told the EPA that what we were doing wouldn’t hurt plants? A. Basically, I indicated to him that we had the information that they had given to the EPA, that we had talked to experts who had told us that it wasn’t even close, atrazine wasn’t the problem.

The record also contains a letter written by Du Pont attorney Peter Wellington to Kalafut. The letter, dated November 7, 1991, states in pertinent part:

In view of your letter of November 6, 1991, I believe a meeting at this time may be premature. You state that you have information that atrazine, even at the highest levels, could not have caused the damage. In our conversation, you mentioned the opinion of Dr. Cowett in the South Carolina Du Bose litigation and Du Pont information filed with EPA in June 1990. The latter was the best available information at a point in time and for a specific subject. Neither of these seem to me to be sufficient basis for a general statement regarding causation in hundreds of cases over different crops.
Du Pont did not handle most of the Benlate I claims — CIGNA did.... Surely the millions of dollars paid out by or on behalf of Terra were done on the basis of scientific causation evidence under your control.
We understand Terra and XL have suspended all further efforts at claims adjustment on litigation settlement. We are concerned as to the impact of this decision on Du Pont and whether Terra may be in breach of its indemnity obligation. ...

Based on Kalafut’s testimony in the Bush Ranch case as quoted above, the district court found that “Kalafut engaged in considerable discussion of Dr. Cowett, including primarily his conclusions regarding the atrazine contamination in Benlate.” Additionally, the court found that, based on the November 1991 letter and other communications between Terra and Du Pont, Cowett’s work and his specific opinions concerning Benlate contamination “had been widely discussed, injected into various litigation, and otherwise disseminated,” and “that this broad based disclosure of this area in the transcripts and other unprivileged documents effectively waives any privilege that might attach to it.”

V. Waiver of the work product privilege.

The parties do not dispute that the Cow-ett documents constitute work product of Kalafut and Terra and are otherwise protected from disclosure by the work product privilege. The narrow issue we must decide, however, is whether Kalafut’s testimony in the Bush Ranch case and his comments in discussions with Du Pont attorneys amount to an express waiver of the work product privilege and, if so, whether such waiver extends to the Cow-ett documents in Kalafut’s possession.

A. Iowa law regarding waiver of privileged information.

In our cases, we have addressed what matters fall under the work product privilege, see Squealer, 530 N.W.2d at 686-87, Shook, 497 N.W.2d at 887-88, Ashmead, 336 N.W.2d at 200-01, but we have never addressed possible waiver of the work product privilege.

We did, however, address waiver of the attorney client privilege in Miller v. Continental Insurance Co., 392 N.W.2d 500, 504-05 (Iowa 1986). In Miller, we cited the rule that “voluntary disclosure of the content of a privileged communication constitutes waiver as to all other communications on the same subject.” Id. (emphasis added). This rule is referred to as subject matter waiver. See In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir.1988) (explaining subject matter waiver as a situation when disclosure of a confidential communication outside a privileged relationship waives the privilege as to all information related to the same subject matter). We held in Miller that by making certain disclosures of otherwise privileged information in affidavits, plaintiffs waived the attorney client privilege only as to the communications about the matter actually disclosed in the affidavits. Miller, 392 N.W.2d at 505.

Exotica contends that the subject matter waiver rule applies in this case such that Kalafut’s testimony in the Bush Ranch litigation amounts to a waiver of the work product privilege as to all Cowett documents in Kalafut’s possession because they involve the same subject matter as the topic of Kalafut’s testimony, that is, Cow-ett’s opinion on the Benlate/atrazine contamination. Kalafut, on the other hand, argues that due to the policy differences between the attorney-client privilege and the work product privilege, the subject matter waiver rule does not extend to the work product privilege. Kalafut therefore contends that although he may have waived the work product privilege as to his specific statements in the Bush Ranch litigation, that waiver does not extend to all Cowett documents in his possession.

B. Other authorities concerning waiver of work product privilege.

Other authorities have considered whether the subject matter waiver rule applied in the attorney-client privilege context likewise applies to the work product privilege such that waiver of the work product privilege as to certain matters extends to all other documents in the attorney’s possession on that same subject. See, e.g., United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 2170-71, 45 L.Ed.2d 141, 154 (1975) (stating that defendant, “by electing to present [an] investigator as a witness, waived the [work product] privilege with respect to matters covered in [the investigator’s] file”); Pittman, 129 F.3d at 988 (stating “that disclosure to an adversary waives work product protection as to items actually disclosed,” but rejecting argument that by voluntarily disclosing photographs and measurements of railroad crossing accident scene, defendant waived work product privilege for entire contents of investigator’s file; waiver of work product privilege was limited to photographs actually disclosed); Martin Marietta, 856 F.2d at 625-26 (holding that by disclosing documents to government, party impliedly waived work product privilege as to all non-opinion work product on the same subject matter disclosed, but subject matter waiver rule does not apply to opinion work product); Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222-23 (4th Cir.1976) (stating that “broad concepts of subject matter waiver analogous to those applicable to claims of attorney-client privilege are inappropriate” when applied to the work product privilege; holding that subject matter waiver does not extend to case where there has only been inadvertent or partial disclosure and in which no testimonial use has been made of the work product); United States v. Skeddle, 989 F.Supp. 917, 921 (N.D.Ohio 1997) (holding that company general counsel’s testimony in criminal case against former directors and officers of company did not waive work product privilege as to company’s entire investigative file prepared during investigation of claims of self-dealing; company’s entire investigative file was not the same subject matter as the limited testimony of counsel); In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 310, 312 (D.D.C.1994) (citing rule that disclosure of documents protected by attorney work product privilege waives the protections of the privilege as to the documents disclosed, but holding that such disclosure does not extend to other work product documents still in the possession of the party asserting the privilege); Fleet Nat’l Bank v. Tonneson & Co., 150 F.R.D. 10, 16 (D.Mass.1993) (even if inadvertent disclosure of one group of documents waived work product privilege as to those documents, there was no subject matter waiver of privilege as to other groups of documents); 8 Charles A. Wright, Arthur R. Miller & Richard R. Marcus, Federal Practice and Procedure § 2016.2, at 245-46 (2d ed.1994) (waiver is limited to matters actually disclosed), § 2024, at 368-69 (“disclosure of some documents does not destroy work-product protection for other documents of the same character”; disclosure of documents to third person does not waive work-product immunity unless disclosure substantially increases the opportunities for potential adversaries to obtain the information).

C. Analysis.

Upon our review, we disagree with the district court’s conclusion that Kala-fut’s testimony in the Bush Ranch case and his correspondence with Du Pont attorneys amounts to a waiver of the work product privilege as to the Cowett.docu-ments in Kalafut’s possession.

When read in context, Kalafut’s testimony in the Bush Ranch case illustrates that Kalafut was simply providing a summary of the Benlate litigation. While it is true that Kalafut discussed Cowett’s opinion that atrazine contamination in Benlate on the part of Terra was not the cause of the growers’ crop and tree damage, Kalafut spoke only generally of Cowett’s opinions and did not discuss in detail how Cowett had reached his conclusions. In fact, Ka-lafut’s testimony concerning Cowett’s opinions and conclusions was limited by the court as indicated above.

We further conclude that the November 7, 1991 letter from Du Pont attorney Wellington to Kalafut likewise does not amount to a waiver by Kalafut of the work product privilege. Again, as illustrated by the excerpts from the record, Kalafut was trying to learn from Du Pont the true nature of the growers’ problems with Benlate during the time that Terra was paying the growers’ claims on Du Pont’s behalf.

It was Kalafut’s duty to communicate with Du Pont regarding the Benlate claims and to evaluate Terra’s liability in the matter. But to say that Kalafut waived his work product privilege concerning information that might potentially absolve Terra of liability, simply by discussing the general nature of that information with Du Pont, would mean that an attorney could never discuss the positive aspects of his or her case with opposing counsel for fear that such discussion would amount to a waiver of the work product privilege as to all documents supporting that position. If this were the case, settlement negotiations and communication between the parties in general would break down. Such a result would be inconsistent with a commonsense application of the work product doctrine and certainly inconsistent with the goal of resolving cases in a timely manner.

We therefore believe that Kalafut’s testimony in the Bush Ranch case and his comments in a November 6, 1991 letter to Du Pont concerning Cowett’s opinions, and the other items referred to by the district court, do not amount to such a waiver of the work product privilege so as to require production of the detailed Cowett documents in Kalafut’s possession. Those documents continue to be protected from discovery under the work product privilege. We thus conclude that the district court abused its discretion in ordering Kalafut to produce the Cowett documents on the basis of waiver of the work product privilege.

VI. Substantial need and undue hardship.

We next must consider whether the district court correctly concluded that Exotica made the proper showing concerning substantial need and undue hardship to entitle it to discovery of the Cowett documents under Iowa rule of civil procedure 122(c).

A. Applicable law.

With respect to discovery requests, we have said:

A motion to compel production of documents under rule 122 does not necessarily fail when a court decides the documents were prepared in anticipation of litigation. The decision merely triggers the burden of “showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

Ashmead, 336 N.W.2d at 201 (emphasis added) (quoting Iowa R. Civ. P. 122(c)).

We have said that the party [Exotica] seeking discovery bears the burden to show that he or she has a “substantial need of the materials in the preparation of [the] case and that [the party] [was] unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Shook, 497 N.W.2d at 888 (quoting Iowa R. Civ. P. 122(c)). This means that the party seeking discovery, at the very least, “must make an independent discovery effort to obtain the same information. [The party] must show that [the party] has interviewed these witnesses or deposed them without success.” Id. We have also said that the party must “demonstrate that the information contained in the documents prepared ... could not be obtained through a review of the ... documents already produced ..., the depositions of the persons responsible for making the denial decision or any other source.” Squealer, 530 N.W.2d at 688.

B. Analysis.

In its ruling, the district court concluded that Exotica had shown a substantial need to discover the Cowett documents, but did not examine or address whether Exotica had shown that it was “unable without undue hardship to obtain the substantial equivalent of the materials by other means” as required by Iowa rule of civil procedure 122(c). Nor did the court comment on what efforts Exotica had made to obtain the Cowett documents from another source. See Shook, 497 N.W.2d at 888 (stating that party seeking discovery, at the very least, must make an independent discovery effort to obtain the same information). Upon our review and without unduly extending this opinion, we are not convinced that Exotica has made the proper showing under rule 122(e). We reverse the district court’s decision on this issue.

As to other issues raised on appeal, we conclude they either were not preserved or have no merit.

VII. Disposition.

We conclude that the district court abused its discretion in ordering production of the Cowett documents in Kalafut’s possession. Those documents remain protected from disclosure under the work product privilege. Accordingly, we reverse the decision of the district court.

REVERSED.

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

      . We will refer to plaintiffs collectively as Exotica unless otherwise indicated.

      . We will refer to Kalafut and Terra collectively as Terra unless otherwise indicated.

      . Exotica also sought documents from Terra relating to mediation and settlement of issues between Terra and Du Pont. The district court subsequently ruled that Exotica was not entitled to these documents. Exotica does not challenge that ruling in this appeal.

      . The November 6, 1991, letter by Kalafut referenced in Wellington’s letter was apparently written shortly after Kalafut learned in the Du Bose litigation of Cowett’s opinion that atrazine levels in the Benlate formulated by Terra for Du Pont could not have caused the damages being alleged by growers.


author: SNELL, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. Jerry Michael LAMBERT, Appellant.
    No. 98-2274.
    Supreme Court of Iowa.
    July 6, 2000.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Richard R. Phillips, County Attorney, and Kerrie L. Snyder, Assistant County Attorney, for appellee.
   SNELL, Justice.

Defendant, Jerry Michael Lambert, appeals his conviction for burglary in the first degree in violation of Iowa Code section 713.1 (1997), a class “B” felony, and assault in violation of Iowa Code sections 708.1 and 708.2(4) (1997), a simple misdemeanor. Defendant appeals claiming there was insufficient evidence upon which to base a conviction for burglary, and that he received ineffective assistance of counsel. Defendant further claims the assault conviction should have been merged with that for burglary. We agree with defendant’s latter ascription of error. The decision of the district court is affirmed, the sentence is vacated, and the case is remanded for resentencing.

I. Background Facts and Proceedings

Facts adduced at trial indicate that on August 20, 1998, at approximately 4:30 in the morning, defendant entered the home of his estranged wife, Diane Robertson. Robertson woke to the sound of Lambert’s voice calling out her name as he stood beside her bed, wearing gloves, arms raised overhead, holding a long metal pipe in both hands. Once roused, Robertson was told, “Talk to me and I won’t hurt you.” She screamed and a struggle ensued. The couple’s children bore witness to the encounter in which Robertson was choked and nearly suffocated with a pillow.

Upon the children’s intercession, the couple regained their composure. Brief discussions followed through which Lambert expressed his familial devotion and queried Robertson as to her reasons for seeking a divorce. Lambert subsequently left the house and Robertson immediately phoned the police.

Defendant turned himself in that same morning, and was charged with first-degree burglary and aggravated assault. Following a jury trial Lambert was found guilty of burglary and sentenced to a term of imprisonment not to exceed twenty-five years. He was also convicted of simple assault, for which he is to serve a concurrent term of thirty days.

On appeal, defendant makes the following contentions: (1) there was insufficient evidence to support the burglary verdict; (2) his attorney’s failure to object to jury instructions constituted ineffective assistance of counsel; and (3) the district court erred in refusing to merge the assault and burglary convictions.

II. Discussion

A. Sufficiency of the Evidence

We review challenges to the sufficiency of the evidence for the correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). A trial court’s findings of guilt are binding if supported by substantial evidence. Id.; Iowa R.App. P. 14(f)(1). If a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt, the evidence is substantial. Thomas, 561 N.W.2d at 39; State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). The evidence is examined in the light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record. Thomas, 561 N.W.2d at 39; State v. Simpson, 528 N.W.2d 627, 632-33 (Iowa 1995). We consider all the evidence presented, not just that of an inculpatory nature. Thomas, 561 N.W.2d at 39; State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). Evidence that only raises suspicion, speculation or conjecture is not substantial. Thomas, 561 N.W.2d at 39.

Burglary is defined as a crime executed by:

[a]ny person, having the intent to commit a felony, assault or theft therein, who having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.

Iowa Code § 713.1.

Defendant argues the State failed to prove the element of intent beyond a reasonable doubt. Lambert claims he entered the home for the purpose of retrieving tools, clothing, and other personal effects he had previously been unable to collect due to a restraining order. At trial, Lambert testified he returned home under cover of darkness in hopes of reclaiming the property undetected. Lambert maintains he was looking through boxes of his belongings on the back porch when confronted by Robertson and told to leave the premises. He further claims as follows. He asked if he could first retrieve his gloves and other articles of apparel from a closet in the upstairs bedroom. Robertson assented, followed him, inquired as to whether the children were aware of his presence, and upon being informed in the negative, proceeded to scream, “Help, help, he’s killing me.” Lambert asserts the struggle witnessed by the children was simply an attempt to procure her silence, that he harbored no ill-will toward his wife, and that he had no intention of committing an assault when he entered the home.

In order to sustain a conviction for burglary the State must prove, beyond a reasonable doubt, Lambert had formed the intent to commit an assault at the time of entry. State v. Finnel, 515 N.W.2d 41, 42-43 (Iowa 1994); State v. Morelock, 164 N.W.2d 819, 822 (Iowa 1969). This element of the offense is seldom susceptible to proof by direct evidence, and is usually established by inference. Finnel, 515 N.W.2d at 42; State v. Olson, 373 N.W.2d 135, 136 (Iowa 1985). Intent may be derived from actions preceding, or subsequent to, an accused’s unauthorized entry, as well as all circumstances attendant thereto. Finnel, 515 N.W.2d at 42. The requirement of proof beyond a reasonable doubt is satisfied if it is more likely than not the inference of intent is valid. Id.; Olson, 373 N.W.2d at 136.

The facts of this case are analogous to those presented in Finnel. Therein, Finnel, without consent, entered the home of Mary Brown, a former girlfriend. Knovnng full well .contact with the victim would be considered offensive, Finnel woke Brown and expressed his desire to engage in a dialogue. Finnel was immediately told to exit the premises. When he refused, Brown attempted to make an escape, at which point Finnel grabbed her by the neck, and covered her mouth to prevent her from screaming. Eventually, Finnel was convinced to leave. He was later convicted of second-degree burglary. On appeal, we held Finnel’s mode of entry, his knowledge with respect to Brown’s desire to avoid contact, his threats to kill Brown, and his assaultive actions once inside, constituted sufficient evidence from which a court could infer an intent to commit assault. Finnel, 515 N.W.2d at 43.

In the matter at hand, the jury was asked to consider evidence which indicated Lambert entered the premises without permission, in the dead of night, wearing gloves, and wielding a lead pipe. The evidence further suggested Lambert confronted his wife in violation of a restraining order, that he threatened her with imminent bodily harm, and that he assaulted her when she refused to accede to his requests. Most of this evidence was corroborated by eyewitness testimony. We thus conclude there was sufficient evidence from which a jury could properly find an intent to commit an assault.

Viewing this evidence, together with the other evidence adduced in the light most favorable to the State, we conclude there was sufficient evidence for the jury to convict Lambert of burglary.

B. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are derived from the Sixth Amendment to the United States Constitution and are afforded a de novo review. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). To sustain such a claim a defendant must prove, by a preponderance of the evidence, trial counsel failed to perform an essential duty, and prejudice resulted. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999); State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).

To prove the second prong, of a claim of ineffective assistance of counsel, i.e., that prejudice resulted, the defendant must show that counsel’s failure worked to the defendant’s actual and substantial disadvantage, such that there is a reasonable probability that, but for counsel’s error, the trial result would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984); State v. Thornton, 498 N.W.2d 670, 675 (Iowa 1993).

Lambert claims his counsel should have objected to the court’s instruction that “a metal pipe is, by law, a ‘dangerous weapon.’ ” The court initially defined a dangerous weapon as

any device or instrument designed primarily for use in inflicting death or injury, and when used in its designed manner is capable of inflicting death. It is also any sort of instrument or device which is actually used in such a way as to indicate the user intended to inflict death or serious injury, and when so used is capable of inflicting death.

This language substantially tracks with the statutory language of Iowa Code section 702.7. However, the court further instructed the jury that a metal pipe is a dangerous weapon as a matter of law.

Defendant notes a pipe is not a dangerous weapon, per se, under section 702.7. Lambert contends the State therefore bears the burden of proving the pipe allegedly used during commission of the crime was brandished in a manner indicating an intent to inflict death or serious injury, and that the pipe was actually capable of inflicting such injury. He- argues the instruction characterizing the object as a dangerous weapon, as a matter of law, was thus submitted to the jury in error, and that it was incumbent upon his attorney to lodge an objection to its submission.

The evidence more than sufficiently proved the elements of the court’s definition of “dangerous weapon” as submitted to the jury. That definition stated “a dangerous weapon is any sort of instrument or device which is actually used in such a way as to indicate the user intended to inflict death or serious injury, and when so used is capable of inflicting death.”

Robertson testified she woke to find defendant standing over her, poised to strike, with an approximately three-foot long metal or lead pipe. Defendant, himself, testified the pipe to which his wife referred was known as “the asskicker,” a hollow, three-and-one-half foot long cheater bar used as a leverage tool or tire billy. The couple’s three daughters, who were familiar with the instrument and its given appellation, confirmed these descriptions.

This evidence showed actual use by Lambert of the metal pipe, its capability of inflicting death, and his intent to inflict serious injury. Further evidence of Lambert’s intent is provided by Robertson’s testimony she was choked and her daughter’s testimony that defendant held a pillow over her face. Also, officer Layne, who arrived on the scene that morning, testified the victim’s neck was red and that there were scratches on her face. A police dispatcher further testified that when Robertson called for help she was crying and said defendant had choked her.

In light of this evidence we find there is not a reasonable probability, even if counsel erred in failing to object to the instruction, the trial result would have been different. The Strickland standard for reversal has not been met.

C. Merger

The district court sentenced Lambert to concurrent terms of imprisonment on the counts of simple assault and first-degree burglary. Lambert asserts this punishment was in violation of Iowa Code section 701.9, which provides:

No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this sentence, the court shall enter judgment of guilty of the greater offense only.

In support of this contention, Lambert maintains assault is a lesser included offense of burglary in the first degree when the latter charge is predicated upon the reckless or intentional infliction of bodily injury alternative.

An alleged violation of Iowa Code section 701.9 is reviewed for the correction of errors at law. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999); Finnel, 515 N.W.2d at 43. Section 701.9 codifies our protection from cumulative punishment secured by the Double Jeopardy Clause of the United States Constitution. Garrett v. United States, 471 U.S. 773, 777-78, 105 S.Ct. 2407, 2410-11, 85 L.Ed.2d 764, 770-71 (1985); State v. Daniels, 588 N.W.2d 682, 683 (Iowa 1998). The purpose of the merger statute is to prevent a court from imposing a punishment greater than that contemplated by the legislature. State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995); see also Daniels, 588 N.W.2d at 683-84.

To ascertain legislative intent we first look to the legal elements test for lesser included offenses. Halliburton, 539 N.W.2d at 344. Application of this test involves a comparison of the elements of both crimes to see whether it is possible to commit the greater offense without also committing the lesser. Id. If it is not, the statutes must be merged unless the legislature intended to impose multiple punishments for a single transgression. Id.

The elements of first-degree burglary submitted to the jury were:

1. On or about the 20th day of August 1998, the defendant broke into or entered 205 West Eighth Street, West Liberty, Iowa.
2. 205 West Eighth Street, West Liberty, Iowa, was an occupied structure as defined in these instructions.
3. Persons were present in the occupied structure.
4. The defendant did not have permission or authority to break into or enter 205 West Eighth Street, West Liberty, Iowa.
5. The defendant did so with the specific intent to commit an assault.
6. During the incident the defendant possessed a dangerous weapon and/or intentionally or recklessly inflicted bodily injury on another person.

The marshalling instruction for simple assault read:

1. In order for the Defendant to be found guilty of the lesser-included offense of Assault, the State must prove both of the following elements:
2. On or about the 20th day of August, 1998, the defendant did an act to Diana [Robertson] which was intended to cause her pain or injury or result in physical contact which was insulting or offensive, or place Diana [Robertson] in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to her.
3. The defendant had the apparent ability to do the act.

The jury found the charged elements of burglary were proved. The elements of assault as charged were sufficiently proved to support the jury’s conviction based on defendant’s acts that were intended to cause Robertson pain or injury. The State suggests merger of these offenses does not occur because under number six of the burglary charge, defendant could have been convicted of possessing a dangerous weapon rather than the infliction of bodily injury alternative and, thus, not commit the crime of assault. This argument is not viable, however, because no special interrogatories were submitted and we therefore have no way of knowing the alternative upon which the jury based its decision.

This court has previously observed that “it would be impossible to commit first-degree burglary by intentionally or recklessly injuring another without also committing assault....” State v. Peck, 539 N.W.2d 170, 175 (Iowa 1995).

Moreover, in Daniels, we voiced our approval of a court of appeals decision in which it was held assault while participating in a felony was a lesser included offense of first-degree burglary under the intentional or reckless infliction of bodily injury alternative. Daniels, 588 N.W.2d at 685 (citing State v. Hernandez, 538 N.W.2d 884, 888 (Iowa App.1995)).

Under these precedents it is clear the convictions for first-degree burglary and simple assault should have been merged.

III. Conclusion

We hold there is sufficient evidence to sustain a conviction for burglary in the first degree, and that defendant was not prejudiced by counsel’s failure to object to the jury instructions. The trial court did, however, err by failing to merge the burglary and assault convictions. The decision of the district court is affirmed in part, reversed in part, and remanded for merger.

CONVICTION AFFIRMED, SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.

All justices concur except CARTER, J., who concurs specially, and NEUMAN, J., who takes no part.

CARTER, Justice

(concurring specially).

I join in the opinion of the court as to all issues other than the merger issue. On that issue, I agree that there must be merger of convictions because the situation falls squarely under Iowa Code section 701.9 (1997). I do not agree with that portion of the court’s analysis that searches for legislative intent beyond the application of that statute.

As I indicated in my concurring opinion in State v. Daniels, 588 N.W.2d 682, 685-86 (Iowa 1998), the two-step analysis applied in the Halliburton case, 539 N.W.2d at 344, is misguided. A general statute such as section 701.9 is applicable to all crimes contained in the criminal code in the absence of a special statute negating its application. There is no special statute which does that. Consequently, section 701.9 is the controlling indicia of legislative intent on the merger issue in all situations in which lesser included offenses are involved. It is unnecessary and improper to resort to an ad hoc determination of legislative intent apart from the directives contained in section 701.9.