author: TERNUS, Justice.

text:
    Melissa H. CLAUDE, as Administrator of the Estate of John D. Mahoney and as Administrator of the Estate of Elizabeth A. Mahoney, Appellant, v. GUARANTY NATIONAL INSURANCE COMPANY, d/b/a Orion Auto Insurance, Inc., Appellee.
    No. 03-0554.
    Supreme Court of Iowa.
    May 12, 2004.

      John D. Jordan of Payer, Jordan, Maho-ney, Jordan, Quinn, Hunziker & Rhodes, L.L.P., Boone, for appellant.
    Timothy A. Clausen and Justin L. Seurer of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen & Lapierre, L.L.P., Sioux City, for appellee.
   TERNUS, Justice.

The plaintiffs petition seeking uninsured motorist benefits for the deaths of her parents was dismissed on the defendant insurer’s motion for summary judgment. The district court ruled the decedents’ injuries were not caused by a “hit- and-run vehicle” because there was no “actual physical contact” between the decedents’ vehicle and the vehicle of the alleged uninsured motorist, as required by the policy definition of “uninsured motor vehicle.” The court concluded the policy requirement of physical contact did not violate public policy even where, as here, there was independent evidence that an unknown motorist caused the accident. The district court also rejected the plaintiffs equal protection challenge to Iowa Code section 516A.1 (2001), which authorizes the physical-contact requirement when a claim for uninsured motorist coverage is based on the conduct of a hit-and-run driver. Upon consideration of the plaintiffs arguments on appeal, we affirm the district court’s ruling.

I. Background, Facts and Proceedings.

On October 28, 2001, John and Betty Mahoney were killed in a motor vehicle accident when their van collided with an oncoming semi. The Mahoney vehicle entered the path of the semi in an attempt to avoid a head-on collision with a speeding car that was passing the semi in a no-passing zone.

The driver of the passing car did not stop and was never identified. Five disinterested persons witnessed the accident, however, and reported that the unknown vehicle forced the Mahoney van off the road, causing the Mahoneys to lose control of their van and collide with the semi.

The Mahoneys’ adult daughter, Melissa Claude, submitted a claim on behalf of her parents’ estates to the defendant, Guaranty National Insurance Company, d/b/a Orion Auto Insurance Inc., (Orion) to recover uninsured motorist (UM) benefits under a policy issued by Orion to Betty Mahoney. That policy provided coverage for “damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.” An “uninsured motor vehicle” was defined in the policy to include

(C) A hit-and-run vehicle whose operator or owner is unknown and which strikes:
(i) You [an insured person].
(ii) A vehicle which you are occupying.
(iii) Your insured car.
There must be actual physical contact with the hit-and-run vehicle.

(Emphasis added.) Orion denied coverage because there was no physical contact between the Mahoney van and the unknown vehicle as required by the insurance contract.

The plaintiff filed this action, seeking uninsured motorist benefits. In response to a request for admissions, the plaintiff admitted there was no physical contact between the Mahoney van and the car driven by the alleged tortfeasor. Concluding the material facts were not in dispute, the district court sustained Orion’s motion for summary judgment on the basis the unknown motorist was not operating an uninsured motor vehicle as defined in the policy. This appeal followed.

II. Scope of Review.

Our review of a ruling on a motion for summary judgment is for correction of errors of law. Lee v. Grinnell Mut. Reinsurance Co., 646 N.W.2d 403, 406 (Iowa 2002). Where the moving party has shown that no genuine issue of material fact exists and the party is entitled to judgment as a matter of law, summary judgment is appropriate and will be affirmed. Id. Where, as here, the material facts are not disputed, our only task on appeal is to determine whether the district court correctly applied the law. Id.

III. Issues on Appeal.

The plaintiff makes three arguments in support of her position that the trial court should not have granted judgment to the defendant. First, she claims strict enforcement of the physical contact requirement is against public policy, at least under the facts of this case. Second, she contends the correlative physical-contact requirement in the uninsured motorist statute, section 516A.1, violates the Equal Protection Clauses of the federal and state constitutions. See U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 6. Finally, she asserts the district court erred in failing to apply the doctrine of reasonable expectations to permit coverage. Because the plaintiff did not raise the theory of reasonable expectations in the district court proceeding, error was not preserved on that issue and we will not address it on appeal. See State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984) (refusing to consider reasonable expectations argument on appeal when not raised in the district court). See generally Moritz v. Farm Bureau Mut. Ins. Co., 434 N.W.2d 624, 626 (Iowa 1989) (rejecting insured’s reasonable expectations challenge to physical-contact requirement).

IV.Public Policy.

The physical-contact requirement of Orion’s policy finds its genesis in Iowa’s uninsured motorist statute. Section 516A.1 provides in relevant part: Iowa Code § 516A.1 (emphasis added). In Rohret v. State Farm Mutual Automobile Insurance Co., 276 N.W.2d 418 (Iowa 1979), this court held section 516A.1 authorized a policy clause such as that found in Orion’s policy requiring physical contact when the tortfeasor motorist is not identified. 276 N.W.2d at 418.

No automobile liability or motor vehicle liability insurance policy ... shall be delivered or issued for delivery in this state ... unless coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle ... because of bodily injury, sickness, or disease, including death resulting therefrom, caused by accident and arising out of the ownership, maintenance, or use of such uninsured ... vehicle, or arising out of physical contact of such hit-and-run motor vehicle with the person insured or with a motor vehicle which the person insured is occupying at the time of the accident....

To avoid the terminal effect of this decision, the plaintiff argues the physical-contact requirement is against public policy and, therefore, unenforceable. She points out that this condition is designed to reduce “ ‘the possibility that a motorist who loses control of his vehicle through his own negligence will be able to recover under the uninsured motorist coverage by alleging that an unknown vehicle caused the [insured’s] injuries.’ ” Moritz, 434 N.W.2d at 627 (citation omitted). The plaintiff asserts this possibility is not present here because there are five disinterested witnesses who confirm that an unknown motorist caused the accident. Such independent corroboration was not present, she points out, in the Rohret case. Because it is present here, she claims it would be against public policy to deny recovery simply because there was no physical contact.

The flaw in this argument is that “public policy” is not determined by this court’s “generalized concepts of fairness and justice” or our determination of what might be most just in a particular case. Harvey v. Care Initiatives, Inc., 634 N.W.2d 681, 686 (Iowa 2001). “ ‘We must look to the Constitution, statutes, and judicial decisions of [this] state, to determine [our] public policy and that which is not prohibited by statute, condemned by judicial decision, nor contrary to the public morals contravenes no principle of public policy.’ ” In re Marriage of Witten, 672 N.W.2d 768, 780 (Iowa 2003) (citation omitted); accord Principal Cas. Ins. Co. v. Blair, 500 N.W.2d 67, 69 (Iowa 1993) (holding family exclusion provision in homeowners insurance policy did not violate public policy, noting the insureds had not identified any statute or court case that required coverage under the circumstances present in that case).

The provision at issue here does not violate public policy because it was specifically authorized by the general assembly in section 516A.1. See Wold v. Progressive Preferred Ins. Co., 52 P.3d 155, 161 (Alaska 2002) (holding physical-contact requirement did not violate public policy where uninsured motorist statute expressly required direct physical contact, noting statutes themselves reflect the state’s public policy); Basilla v. Aetna Ins. Corp., 38 Mich.App. 260, 195 N.W.2d 893 (Mich.Ct.App.1972) (holding physical-contact requirement in automobile policy did not violate public policy where same requirement was a statutory prerequisite to recovery from the motor vehicle accident claims fund based on injuries caused by an unidentified vehicle). Therefore, contrary to the plaintiffs contention, the physical-contact requirement reflects and is consistent with the public policy of this state. Although the plaintiff is correct in asserting that the legislature’s intent in requiring UM coverage was to extend insurance benefits to the victims of uninsured or unknown motorists, see Douglass v. Am. Family Mut. Ins. Co., 508 N.W.2d 665, 667 (Iowa 1993), overruled on other grounds by Hamm v. Allied Mut. Ins. Co., 612 N.W.2d 775, 784 (Iowa 2000), this desire was implemented with certain specified restrictions, including the requirement of physical contact when the tortfeasor’s identity is unknown. This court will not expand the reach of a statute where, as here, the “legislature has weighed in on the issue and [has] established the parameters of the governing public policy.” Harvey, 634 N.W.2d at 686; see Rohret, 276 N.W.2d at 420 (quoting observation of commentator that when UM statute requires physical contact, ‘[t]he interpretive flexibility necessary to find a conflict between the physical contact provision and the statutes underlying policy considerations is effectively withdrawn from the judiciary (citation omitted’ ”)).

V. Equal Protection.

The plaintiff asks us to revisit our conclusion in Moritz that the physical-contact requirement of section 516A.I does not violate the Equal Protection Clauses of the Iowa and United States constitutions. 434 N.W.2d at 626-27. Although we have reexamined our decision in that case, for the reasons that follow, we find no basis to reach a different conclusion.

Because the statute at issue involves neither a fundamental right nor a suspect classification, it is subject to review under a rational basis standard. Id. at 626; accord Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 689 (Iowa 2002). The rational basis test has been expressed as follows:

“[T]he Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.”

Racing Ass’n v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004) (quoting Fitzgerald v. Racing Ass’n, 539 U.S. 103, 107, 123 S.Ct. 2156, 2159, 156 L.Ed.2d 97, 103 (2003)).

In Moritz, we stated the physical-contact requirement was “ ‘designed to attempt to assure that an accident in fact took place involving another car rather than a situation where the claimant ran off the road or otherwise caused his own accident.’ ” 484 N.W.2d at 627 (quoting 12A George J. Couch, Cyclopedia of Insurance Law § 45.643, at 170 (rev. ed.1981)); accord 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 9.2, at 565 (rev.2d ed.1999). This purpose is consistent with the intent of the legislature in requiring UM coverage, which was to provide innocent victims of an uninsured or unknown tortfeasor with the same protection that would be available had the tortfeasor carried the required minimum liability insurance coverage. See Douglass, 508 N.W.2d at 667. Thus, the legislature’s goal of ensuring that a tortfeasor actually exists as a prerequisite to coverage is a “plausible policy reason” for the classification.

To accomplish the objective of ensuring the involvement of another motorist in the vehicular accident, the general assembly has distinguished between insureds injured in accidents where there is physical contact with an unknown vehicle and insureds injured in accidents where there is no physical contact, protecting only the former. Common experience supports the conclusion that the legislature could rationally have considered the facts upon which this classification is based are true. Certainly, physical contact with another vehicle evidences some connection between that vehicle and the accident. On the other hand, the lack of physical contact leaves open the possibility that no other vehicle was actually involved in causing the insured’s injuries.

The plaintiffs primary criticism of the legislative classification is that the relationship between the classification and the legislature’s goal of preventing fraudulent claims is so attenuated that the classification is arbitrary. The plaintiff relies on our decision in Bierkamp v. Rogers, 298 N.W.2d 577 (Iowa 1980), where we struck down Iowa’s guest statute as violative of the Iowa equality provision. We held the guest statute was so overinclusive and un-derinclusive that it did not reasonably further the legislative goal of avoiding collusive lawsuits. Bierkamp, 293 N.W.2d at 584. Our court noted that “[t]he certainty with which just claims are and would be barred and the relative ease with which collusion can be accomplished despite the statute is obvious.” Id.

We do not think section 516A.1 suffers from the same infirmities this court discerned in the guest statute. We continue to believe, as we determined in Moritz, that section 516A.1 is not so overinclusive and underinclusive in relation to its goal ■that it does not reasonably further that goal. 434 N.W.2d at 626-27. The requirement of physical contact furthers the general assembly’s objective to reduce the possibility of claims based on accidents that were not caused by another motorist. Moreover, unlike the guest statute, where numerous exceptions to the statute significantly diluted its effectiveness, see Bier-kamp, 293 N.W.2d at 584 (noting exceptions rendered statute underinclusive), there are no exceptions to the physical-contact requirement of section 516A.1; when the accident involves a hit-and-run driver, there must be physical contact to qualify for UM benefits, see Rohret, 276 N.W.2d at 420 (“ ‘The statute makes proof of physical contact a condition precedent in every case for the recovery of damages caused by an unknown vehicle. There are no exceptions.’ ” (Citation omitted.)). Thus, we cannot conclude that section 516A.1 involves the extreme degrees of overinclusion and underinclusion found unconstitutional in Bierkamp.

We recognize the apparent unfairness of the physical-contact requirement as applied to the plaintiffs claim, which is not viable under the statute notwithstanding the fact five eyewitnesses can verify that an unknown vehicle caused the accident resulting in her parents’ deaths. But the fact that a classification results in some injustice does not render the statute arbitrary or unreasonable. Bowers, 638 N.W.2d at 689. As this court stated in Bierkamp, “Classifications do not deny equal protection simply because they result in some inequality, but because the lines drawn do not rationally advance a legitimate government purpose.” 293 N.W.2d at 581 (citations omitted). This distinction is critical here: despite the inequity that may result in a particular case by application of the physical-contact requirement, we cannot say the legislative classification does not reasonably and rationally further the legislative goal of ensuring the involvement of another motorist in the accident. The statute may not result in perfect justice, but it does not violate the constitutional guaranties of equal protection.

VI. Conclusion.

The physical-contact requirement of section 516A.1 does not contravene public policy. Nor does it violate the equality guaranties of the federal and state constitutions. Therefore, the policy provision requiring actual physical contact between an unknown motorist’s vehicle and the insured or the insured’s vehicle is enforceable.

Because it is undisputed here that there was no physical contact between the car of the unknown motorist involved in the accident causing the insureds’ deaths and the Mahoneys’ van, the district court correctly granted summary judgment to Orion. Accordingly, we affirm the judgment in favor of the defendant.

AFFIRMED.

      . Although the policy also covered insured persons entitled to recover damages from the operator of “a motor vehicle which is ... [n]ot insured by a bodily injury liability bond or policy at the time of the accident,” the plaintiff was unable to establish coverage under this provision because the driver of the other vehicle was never identified. Therefore, the plaintiff was not able to prove the tortfea-sor was driving a vehicle that was not insured.

      . We do not find persuasive the contrary decision upon which the plaintiff relies, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619, 622 (1997). In that case, the West Virginia Supreme Court ruled "that some of the rationale underlying the physical contact requirement is unjustified and that this absolute standard for recovery should be abandoned.” Hamric, 499 S.E.2d at 624. Such a decision, in the face of a clear statutory requirement of physical contact, is simply contrary to the principles of Iowa law governing our interpretation and application of legislative enactments. Therefore, we decline to follow the Hamric decision. See Wold, 52 P.3d at 160-61 (refusing to follow Hamric because Alaska UM statute expressly required direct physical contact).

      . Neither party suggests that our analysis of the federal and state constitutional claims should be different. Therefore, our discussion applies to both.

      . The statute does not differentiate between “innocent victims'' who had physical contact with an unknown vehicle and "innocent victims'' who did not have physical contact with an unknown vehicle, as asserted by the plaintiff. Section 516A.1 distinguishes claimants who had physical contact from claimants who did not. A proper characterization of the classes created by the legislature is important in considering whether there is a rational basis for the legislative classification.


source: Caselaw Access Project

author: TERNUS, Justice. CARTER, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Donald Keith HAGEDORN, Jr., Appellant.
    No. 03-0232.
    Supreme Court of Iowa.
    May 12, 2004.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William E. Davis, County Attorney, and Robert L. Cusack, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Donald Hagedorn, Jr., was convicted of burglarizing his estranged wife’s home. He claims on appeal that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence that he had “no right, license or privilege” to enter the premises. We conclude the mere fact the defendant had previously resided at the residence in question with his family did not give the defendant an irrevocable “right, license, or privilege” to enter the premises until restrained from doing so by court order. Nor did the defendant have an absolute right to enter simply because his wife and children continued to reside there.

We think evidence that the defendant no longer lived in the marital home supports the jury’s finding that he had “no right, license or privilege” to enter the residence. Therefore, the trial court did not err in refusing to enter a judgment of acquittal. Accordingly, we affirm.

I. Background Facts and Proceedings.

At all times pertinent to this case, Donald and Sue Hagedorn were husband and wife. Prior to July 2002, they lived with their two children in a duplex leased by Sue.

In mid-July 2002 the couple separated and both moved out of the duplex. Although Sue moved most of her belongings out, Donald left his possessions in the home. Toward the end of July, Sue moved back into the duplex. At that time, she packed the defendant’s belongings and placed them on the porch for his family to retrieve.

Prior to the couple’s separation, Sue had begun a relationship with Donald’s friend, Marvin Mooney. The defendant was upset about this relationship and after he and Sue separated, he began calling her at work and at home, sometimes up to thirty times a day. He also called Marvin and Marvin’s parents, repeatedly telling them that Marvin should stay away from Sue. Sue contacted the police about the incessant calls she had been receiving from Donald, but instituted no legal proceedings against him.

After Sue moved back into .the duplex, Marvin began staying with her there. A few days before the incident involved in this case, Donald walked into the bathroom while Marvin was taking a bath. Sue told the defendant to get out of the house and that she did not want him there. After this episode, Sue had the locks on the house changed so Donald could not get in. Sue told the defendant on at least four or five other occasions that he was to stay away from the duplex.

Donald ignored these repeated admonitions. In the early morning hours of August 2, 2002, the defendant, after parking his vehicle a block and a half away, removed a window screen and entered the duplex through a side window. Sue, who was sleeping with Marvin in a bedroom, was awakened by the sound of a baseball bat, swung by the defendant, striking Marvin in the head. After hitting Marvin, Donald left the way he had entered. Marvin sustained severe head injuries in the attack.

The defendant was charged with (1) attempted murder, (2) first-degree burglary, (3) willful injury, (4) going armed with intent, and (5) stalking. He pled not guilty and the case proceeded to trial. At the close of the State’s case, the defendant moved for a judgment of acquittal as to all charges. With respect to the burglary charge, the defendant claimed the duplex was the marital home and Sue’s desire that he not be there did not abrogate his right, license, and privilege to enter the premises. See State v. Peck, 539 N.W.2d 170,173 (Iowa 1995) (stating there is no burglary if the person entering the building “‘has a right so to do, although he may intend to commit, and may actually commit, a felony, and although he may enter in such a way that there would be a breaking if he had no right to enter’” (citation omitted)). The court denied the defendant’s motion and the defense rested without putting on any evidence.

The jury returned a verdict finding the defendant guilty of the lesser offense of assault with intent to inflict serious injury (rather than attempted murder), burglary in the first degree, willful injury, and going armed with intent. The defendant was found not guilty of stalking.

After sentencing, the defendant appealed. He raises only one issue: whether the court erred in failing to enter judgment of acquittal on the burglary charge.

II. Scope of and Standards for Review.

“A motion for judgment of acquittal is a means for challenging the sufficiency of the evidence to sustain a conviction .... ” State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981). We review a sufficiency-of-the-evidence ruling for correction of errors of law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). If the verdict is supported by substantial evidence, we will uphold a finding of guilt. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). “ ‘Substantial evidence’ is that upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” Id. In conducting our review, we consider all the evidence, that which detracts from the verdict, as well as that supporting the verdict. Id. We view the evidence in the light most favorable to the State. Id.

III. Discussion.

The defendant’s argument on appeal is simple: he claims he cannot be convicted of burglary for entering his own house. He asserts that even though he was “temporarily” absent from the residence, it remained the marital home and he had a right to be there. He principally relies on this court’s decision in Peck, where we affirmed a defendant’s burglary conviction on the basis he had no right to enter the marital home after his wife had obtained a restraining order that prohibited the defendant “from coming upon any premises occupied by the petitioner and minor children....” Peck, 539 N.W.2d at 172. Contrary to the defendant’s interpretation of our decision, we did not suggest in Peck that the defendant had an absolute right to enter the marital home unless restrained from doing so by a court of law. Because we held the defendant’s entry was expressly proscribed by the court order, it was not necessary to decide what rights the defendant would have had in the absence of the restraining order. Id. at 173. Thus, although our general discussion of the burglary offense in that case is helpful in resolving the present case, our decision in Peck is not dispositive.

We begin our analysis of the issue presented in the case before us with the burglary statute, Iowa Code section 713.1 (2001). That statute states, in relevant part, that burglary is committed when

[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 ....

Iowa Code § 713.1 (emphasis added). As we consider whether the defendant’s conduct falls within the scope of this statute, we are guided by two, sometimes competing, principles: although criminal statutes are to be strictly construed in favor of the accused, “they must be construed reasonably and in such a way as to not defeat their plain purpose.” Peck, 539 N.W.2d at 173. Accordingly, we now examine the purpose of our burglary statute.

At common law, “[t]he crime [of burglary] was considered to be an offense against the security of habitation or occupancy.... It was not designed to protect property or ownership, rather the notion that people should be able to feel secure in their homes.” Pace, 602 N.W.2d at 768. As we explained in Pace,

“‘Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation — the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime [or] to escape.... The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.’ ”

Id. (citations omitted).

The promotion of personal safety was a factor in our rejection of the defendant’s challenge to his burglary conviction in Peck, where we stated that “[a]pplieation of our burglary law in these circumstances will tend to discourage domestic violence and promote security in the home.” 539 N.W.2d at 173. In making this statement, we relied on our decision in State v. Zeien, 505 N.W.2d 498 (Iowa 1993), a ease that is also instructive here.

In Zeien, the defendant was convicted of criminal mischief for damaging marital property located in the home of his estranged wife. 505 N.W.2d at 498. The offense of criminal mischief was defined as “ ‘[a]ny damage ... of tangible property ... when done intentionally by one who has no right to so act.’” Id. (emphasis added) (quoting Iowa Code section 716.1 (1991)). The defendant argued that “because he had an ownership interest in the property [damaged], he had the ‘right to so act’ under section 716.1.” Id. He claimed that “if destruction of marital property is prohibited by section 716.1, a spouse cleaning out a closet and destroying some of its contents might be subject to criminal liability.” Id. We rejected these arguments, stating:

The wording of the statute, as well as public policies of preventing domestic violence and damage to property generally, suggests that the statute should apply to marital property as well as any other.
The specter of prosecution for the destruction of marital property through unintentional acts such as house cleaning, we believe, does not provide a sufficient justification for excusing intentional destruction of property. Prosecution for an accidental act of property destruction should be no more likely than an assault prosecution arising out,of an accidental physical injury to one’s spouse. Both types of criminal act require intent, and we rely on the good judgment of prosecutors and fact finders at trial to sort out the intentional cases from the unintentional ones.
We do not attribute an intent to the legislature to exempt from section 716.1 the intentional acts of a defendant toward property owned by a spouse.

Id.

The Peck and Zeien cases stand for the proposition that the existence of a domestic relationship between the accused and the victim of a crime does not lessen the applicability of or protection afforded by our criminal statutes. Moreover, our decision in Peck is consistent with the legislative purpose underlying section 713.1 to protect the security of occupancy, rather than ownership rights, and to promote personal safety. See Peck, 539 N.W.2d at 173 (rejecting defendant’s claim that he had a greater right to possession of the premises because he had paid the rent on the house). We conclude, then, based on legislative intent and our case law, that whether one has a right or privilege to enter property is not determined solely by his or her ownership interest in the property, or by whether the structure can be characterized as the “marital home.” Rather the focus under our burglary statute is on whether the defendant had any possessory or occupancy interest in the premises at the time of entry. See State v. Lilly, 87 Ohio St.3d 97, 717 N.E.2d 322, 327 (1999) (“Because the purpose of burglary law is to protect the dweller, we hold that custody and control, rather than legal title, is dispositive.”).

Our interpretation of section 713.1 necessarily requires rejection of the defendant’s argument that because “the residence was the marital home of the defendant and his wife,” he had an absolute right to enter the home unless prohibited from doing so by court order. Neither the fact the defendant had previously resided in the duplex with his family nor the fact his children were still in the home gave him an irrevocable license to enter against the wishes of his wife, the current occupant. Cf. Pace, 602 N.W.2d at 773 (holding surrounding circumstances supported finding defendant had no right, license, or privilege to enter home of former wife’s boyfriend, even though his children were in the house and he was entitled to exercise visitation with his children at the time he went to the residence). To allow the existence of a marital relationship to immunize a defendant from the consequences of a burglary hearkens back to the day when the law provided no protection to the victims of domestic assault under the misguided view that it was a private matter between husband and wife. Surely a spouse who stays in the marital residence after the other spouse has moved out should be able to enjoy the security and sanctity of his or her home without the necessity of obtaining a restraining order. In summary, we hold the possessory interest of the person residing in the burglarized residence is no less entitled to protection simply because a marital relationship exists between the perpetrator and the victim of the crime. See White v. State, 587 So.2d 1218, 1224-27 (Ala.Crim.App.1990) (adopting view of other courts that have rejected “ ‘position that there is any absolute right on the part of one spouse to be with the other against the other’s wishes, giving a right to break into the home of the other with the intent to commit a crime’ ” (citation omitted)); Cladd v. State, 398 So.2d 442, 444 (Fla.1981) (“Since burglary is an invasion of the possessory property rights of another, where premises are in the sole possession of the wife, the husband can be guilty of burglary if he makes a nonconsensual entry into her premises with intent to commit an offense .... ”); Matthews v. Commonwealth, 709 S.W.2d 414, 420 (Ky.1985) (stating “burglary is an invasion of the possessory property right of another and extends to the spouse”); cf. City of Bellevue v. Jacke, 96 Wash.App. 209, 978 P.2d 1116, 1119 (1999) (stating in affirming defendant’s conviction of domestic violence assault of her estranged husband at his apartment, “[tjhere was no implied consent to break and enter merely because of the marital status”).

Having determined the proper focus in cases such as this, we readily conclude there is substantial evidence in the record from which a jury could find the defendant had no possessory or occupancy interest in the duplex at the time of the offense. There was evidence the defendant by his own volition no longer resided at the duplex where his wife lived. His personal belongings had been boxed and were on the porch for him to pick up. The defendant had been told emphatically on multiple occasions that he was no longer welcome and should stay away. He knew his wife had changed the locks after an earlier incident when he had appeared uninvited in the house. This evidence supports a finding the defendant was not an occupant of the duplex on August 2, 2002, and had no possessory interest in the premises. This finding, in turn, supports the jury’s conclusion the defendant had no right, license, or privilege to enter his estranged wife’s home on the night of the offense.

Looking beyond this case, we can certainly envision circumstances where the occupancy rights of the estranged couple with respect to the marital home would be murkier than they are here. But the specter of difficult factual determinations should not deter us from applying the burglary statute where the requisite proof is present. As we observed in Zeien, “we rely on the good judgment of prosecutors and fact finders at trial to sort out” the genuine case of burglary from the one lacking the necessary factual support. Zeien, 505 N.W.2d at 499. Certainly, here, where there is evidence the parties had established separate residences, however reluctant the defendant was to do so, there is a submissible jury question on whether the defendant had a right, license, or privilege to enter his estranged wife’s home. Application of the burglary statute under these circumstances furthers the legislative intent to “ ‘forestall the germination of a situation dangerous to personal safety.’ ” Pace, 602 N.W.2d at 768 (citation omitted). More specifically, protecting the possessory interests of a person occupying the marital home after his or her spouse has moved out promotes the public policy underlying our decisions in Zeien and Peck — the prevention of domestic violence.

As a final matter, we note the weight of authority clearly supports the application of burglary statutes to domestic situations. See People v. Johnson, 906 P.2d 122, 125 (Colo.1995) (noting the majority of jurisdictions that have addressed this issue “have found that the uninvited entry of an estranged spouse into the residence of the other spouse constitutes an ‘unlawful entry’”); Lilly, 717 N.E.2d at 327 (same). Moreover, other courts have affirmed burglary or trespass convictions under circumstances very similar to those before us. See, e.g., People v. Sears, 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938, 944 (1965) (giving as a secondary reason for affir-mance of burglary conviction that “since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission”), overruled on other grounds by People v. Cahill, 5 Cal.4th 478, 20 Cal.Rptr.2d 582, 853 P.2d 1037 (1993); People v. Davenport, 219 Cal.App.3d 885, 268 CaLRptr. 501, 505 (1990) (affirming defendant’s burglary conviction based on his unauthorized entry into marital home from which he had moved, even though he still had personal property in the home and no restraining order had been issued); Parham v. State, 79 Md. App. 152, 556 A.2d 280, 285 (1989) (affirming burglary conviction where defendant’s wife had thrown him out of marital home two months prior to crime, defendant was living with his sister, and wife was in process of purchasing property in her own name, even though defendant still had some personal belongings in house); State v. Cox, 73 N.C.App. 432, 326 S.E.2d 100, 102-03 (1985) (affirming defendant’s conviction for burglarizing family home from which defendant had moved a year earlier); State v. O’Neal, 87 Ohio St.3d 402, 721 N.E.2d 73, 82 (2000) (finding sufficient evidence of trespass where wife was the sole lessee under lease agreement for parties’ home and defendant had moved out of the house four days prior to the alleged crime and had begun living elsewhere).

IV. Conclusion.

In summary, we hold the evidence was sufficient to support a finding that the defendant no longer resided in the marital home at the time of the offense and therefore had no possessory or occupancy interest in the premises. This conclusion, coupled with his wife’s clear denial of permission for him to come into her house, was sufficient to establish that the defendant had no right, license, or privilege to enter the duplex. Therefore, the trial court did not err in overruling the defendant’s motion for judgment of acquittal and submitting the burglary count to the jury.

AFFIRMED.

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

CARTER, Justice

(concurring specially).

I concur only in result because the facts reveal that the duplex was leased by Sue. Consequently, she could control the occupancy thereof by excluding Donald s right of entry, notwithstanding the fact that it had at one time been his marital domicile. As a result, the jury could have found his entry was without right, license, or privilege, as must be the case for a burglary offense. But, it certainly would be otherwise if he was an owner or lessee of the property.

As stated in 73 C.J.S. Property section 27, at 209-10 (1983),

[t]he chief incidents of the ownership of property are the right to its possession, the right to its use, and the right to its enjoyment, according to the owner’s taste and wishes ....

(Footnotes omitted.) We recognized this attribute of property ownership in Iowa State Highway Commission v. Smith, 248 Iowa 869, 871, 82 N.W.2d 755, 758 (1957). The right of possession of jointly owned property is in common, and each has a right to the enjoyment of the whole thereof. In re Estate of Winkler, 232 Iowa 930, 933, 5 N.W.2d 153, 155 (1942). The same would be true as to a cotenant’s right of occupancy of leased premises.

As written, the majority opinion is much too broad and implies a right to throw an estranged spouse out of the family home or to preclude him from reentering based on some claim of right that is superior to his property interest. That right does not exist in the absence of a court order.

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


author: STREIT, Justice.

text:
    ESTATE OF Michael HARRIS, Grace Harris and Daniel Harris, Co-Administrators, Appellants, v. PAPA JOHN’S PIZZA and P.J. Iowa, L.C., Appellees.
    No. 03-0201.
    Supreme Court of Iowa.
    May 12, 2004.

      Dorothy A. O’Brien of O’Brien & Greve, P.L.C., Davenport, and Jerry A. Soper of Soper Law Firm, P.C., Davenport, for appellants.
    Robert D. Lambert of Bittner, Lambert & Werner, Davenport, and William J. Bush of Bush, Motto, Creen & Koury, Davenport, for appellees.
   STREIT, Justice.

The facts of this case are as tragic as they are bizarre. An employee of a pizza restaurant told management his supervisor had sex with a subordinate. When his supervisor found out, he punched the employee in the chest. The employee died from the blow, a so-called “chest shot.”

The employee’s estate sued the pizza company, alleging retaliation and negligent supervision. The retaliation claim was premised upon the theory the employee was punished for reporting a violation of the company’s sexual harassment policy. The district court dismissed both counts on summary judgment.

Because we find the “chest shot” may constitute an adverse employment action attributable to the pizza company, we reverse the district court’s dismissal of the retaliation claim. We affirm dismissal of the negligent supervision claim, however, because it is preempted by the Iowa Workers’ Compensation Act.

I. Facts and Prior Proceedings

P.J. Iowa, L.C. operates five Papa John’s Pizza places in the Quad Cities area. Michael Harris worked as a pizza maker and deliveryman at Papa John’s Locust Street store in Davenport. In December 2000, Harris’s immediate supervisor, Assistant Manager Robert Shields, had sex three times with a female subordinate. Although this activity violated company policy, Shields claimed the liaison was well-publicized within the Locust Street store. He alleged his supervisor, General Manager Victor Meeks, congratulated him upon learning of his conquest.

On January 11, 2001, Harris graduated from high school. After the ceremony, Harris and a friend ordered a pizza from a Moline Papa John’s. While picking up his pizza, Harris told the store’s Assistant Manager, Melissa Stanley, about Shields’s liaison.

What happened next is unsettled. According to Shields, the next day General Manager Meeks got off the phone with Stanley and told him Harris should be on his “shit list” for reporting his indiscretions. Shields knew that if his affair was revealed to upper management, he could get in trouble.

General Manager Meeks denied he told Shields that Harris should be on his “shit list.” He also claims Shields denied the affair. Meeks said he told Shields he would talk to Harris about spreading rumors. According to Papa John’s Area Manager, Meeks told Shields to talk to Harris about it.

Sometime after midnight, an angry Shields confronted Harris on the phone. Harris told Shields he could not remember if he had told Stanley about Shields’s indiscretions. Shields asked Harris to come down to the store, and Harris agreed, even though he was not scheduled to work. In itself, this was not an unusual occurrence. Shields, Harris, and another employee, Nathan DeFoe, had begun “hanging out” after work.

Harris arrived at the store. Shields later recalled their encounter:

I asked him if he remembered saying it, and he kept saying he didn’t remember. Throughout the whole conversation he did say that he did remember saying it and that he asked what — because I asked him, you know, Can I ever trust you again? How can I ever trust you? He said, Well, what do I have to do to regain your trust.... That was when I asked him if he would take a chest shot.

Harris agreed to take a “chest shot,” i.e., a punch.

DeFoe, who had been working with Shields that night, came over to watch. DeFoe described the scene:

Bobby was mad at him, and Mike didn’t want Bobby to be mad at him anymore, so Bobby said, you know, This is how we can resolve it, and Mike agreed.... [It wasn’t punishment.] They wanted to redeem their friendship. They wanted to be friends. They didn’t want some girl to ... break up a friendship.

Harris braced for impact, and Shields punched him in the chest.

Harris suffered a cardiac arrhythmia, collapsed, and died. He was only nineteen years old.

Harris’s estate filed a claim for workers’ compensation benefits. On February 6, 2001, Papa John’s carrier, Allied Insurance, denied the claim. Allied did so because it could not “substantiate that this injury arose in and out of the course and scope of his employment.”

On October 30, 2001, the Estate sued Papa John’s. The suit alleged Papa John’s (1) violated the Iowa and Federal Civil Rights Acts, insofar as it retaliated against Harris for reporting a violation of its sexual harassment policy; and (2) negligently supervised its employees, resulting in Harris’s death. The Estate also sued Shields for battery, but this count of the petition is not before us.

Papa John’s filed two motions for partial summary judgment. In the first motion, Papa John’s sought dismissal of the Estate’s civil rights claims, because, it maintained, the Estate could not prove retaliation. The district court agreed, and dismissed the claims. In its second motion, Papa John’s argued Harris’s death “arose out of and in the course of his employment,” and therefore the Estate’s negligent supervision claim was preempted by the Iowa Workers’ Compensation Act (IWCA). The district court ruled in Papa John’s favor again.

The Estate appeals from these adverse summary judgment rulings. The Estate alleges the district court erred in ruling (1) it could not prove retaliation and (2) the IWCA preempts its claim for negligent supervision.

II. Standard of Review

Appellate review of a grant of a motion for summary judgment is for errors at law. Graber v. City of Ankeny, 656 N.W.2d 157, 160 (Iowa 2003). Summary judgment is warranted only where there is “no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3) (2002).

A factual issue is material only if the dispute is over facts that might affect the outcome of the suit. The burden is on the party moving for summary judgment to prove the facts are undisputed. In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record.

Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001) (citations and internal quotations omitted).

III. Merits

A. Retaliation

The Estate contends Papa John’s violated Harris’s civil rights when Shields gave him a chest shot. The Estate characterizes the chest shot as retaliation for reporting Shields’s sexual harassment of a subordinate. The district court dismissed this claim, ruling Shields’s actions were not attributable to Papa John’s. The Estate appealed.

Papa John’s defends the district court ruling on essentially two grounds. First, Papa John’s argues the Estate’s retaliation claim must fail because there is no evidence it took adverse employment action against Harris. Second, Papa John’s points out there is no evidence Shields sexually harassed his subordinate; where there is no sexual harassment, Papa John’s claims, there can be no retaliation.

1. Adverse Employment Action Attributable to Papa John’s

The retaliation provision of Title VII states:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.

42 U.S.C.A. § 2000e-3. Similarly, the Iowa Civil Rights Act (ICRA) states:

It shall be an unfair or discriminatory practice for ...
Any person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.

Iowa Code § 216.11(2) (2001). Title VII was designed to ensure equal opportunity in employment for all, regardless of sex. Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003) (citing Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 497-98, 27 L.Ed.2d 613, 615 (1971)). The ICRA was modeled after Title VII, and therefore we have consistently employed federal analysis when interpreting the ICRA. See id. Nonetheless, the decisions of federal courts interpreting Title VII are not binding upon us in interpreting similar provisions in the ICRA. Id.

To establish a prima facie case of retaliation under Title VII and the ICRA, a plaintiff must show: (1) the plaintiff engaged in protected activity; (2) the employer took adverse employment action against the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 861-862 (Iowa 2001) (citing, in part, Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997)). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut a presumption of retaliation. See Cross v. Cleaver, 142 F.3d 1059, 1071-72 (8th Cir.1998).

In the district court, Papa John’s argued the Estate could not establish that it took adverse employment action against Harris. The district court did not conclude a “chest shot” was not an adverse employment action but held Shields’s actions were not attributable to Papa John’s. The court dismissed the Estate’s retaliation claim.

Although the parties continue to frame the issue in this bifurcated manner, we do not. The question before us is simply whether the chest shot is not, as a matter of law, an adverse employment action attributable to Papa John’s. When the facts of the case are viewed in a light most favorable to the plaintiffs and affording them all legitimate inferences, we conclude the chest shot could be construed as-an adverse employment action attributable to Papa John’s. See Phillips, 625 N.W.2d at 717-18 (setting forth standard of review for summary judgment rulings). We therefore reverse and remand for further proceedings.

It is possible a jury would view the chest shot as a private matter — nothing more than a barbaric display of youthful machismo. Yet a more sinister interpretation of the facts is readily available, and it is for this reason the district court should have denied Papa John’s motion for summary judgment. Harris reported a violation of Papa John’s sexual harassment policy, was summoned to his workplace by his angry supervisor, Shields, at whose hands he ended up dead hours later. Shields killed Harris after Meeks, one of Papa John’s general managers with responsibility for the day-to-day operations of the Locust Street store, told him to take care of the problem. Although the chest shot violated company policy, the mere enactment of a policy will not necessarily insulate an employer from liability for the acts of its employees. See Gentry v. Exp. Packaging Co., 238 F.3d 842, 847 (7th Cir.2001). Put simply, a jury ought to decide whether Shields’s actions constituted adverse employment action attributable to Papa John’s.

We see no reason why punching an employee for making a report of sexual harassment cannot constitute adverse employment action. Compare Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir.1996) (including physical abuse among actions which would support a finding of an adverse employment action), with McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir.1996) (although “[s]hooting a person for filing a complaint of discrimination would be an effective method of retaliation,” the fact such a claimant would have other remedies in tort is “a reason for confining the provision to retaliation that takes the form of an adverse job action” (emphasis added)). Harris’s death, after all, did result in termination of his employment. Far lesser punishments have supported a finding of retaliation. See, e.g., Harris v. Richards Mfg. Co., 511 F.Supp. 1193, 1203 (W.D.Tenn.1981), aff'd in part and rev’d in part, 675 F.2d 811 (6th Cir.1982) (employee moved to isolated corner). This decision is consistent with our definition of an adverse employment action as “an action that detrimentally affects the terms, conditions, or privileges of employment.” Channon, 629 N.W.2d at 862; see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633, 652-53 (1998) (“tangible employment action” defined as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with specifically different responsibilities, or a decision causing significant change in benefits”); Farmland Foods, Inc., v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 742 (Iowa 2003) (in racial discrimination claims, “[c]onduct which constitutes a materially adverse employment action embraces a wide variety of facts”). But see Ellerth, 524 U.S. at 762, 118 S.Ct. at 2269, 141 L.Ed.2d at 653 (“A tangible employment action in most cases inflicts direct economic harm.” (Emphasis added.)); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.2000) (federal circuit courts of appeal are split on how broadly adverse employment action must be defined).

To summarize, summary judgment was not proper. When the facts are viewed in a light most favorable to the plaintiffs and all legitimate inferences are afforded to them, we think a jury could find the chest shot was an adverse employment action attributable to Papa John’s.

2. Protected Activity — Reporting Sexual Harassment

Papa John’s argues the Estate’s retaliation claim cannot prevail because there was no evidence to show Shields’s subordinate was sexually harassed. Papa John’s points out she never complained— formally or otherwise — about having sex with Shields. Where there is no underlying harassment, Papa John’s claims, there can be no retaliation.

In the district court, however, Papa John’s only argued whether Harris suffered adverse employment action; in a reply brief, Papa John’s expressly permitted the court to assume Harris was engaged in protected activity. Nonetheless, Papa John’s now cites Sievers v. Iowa Mutual Insurance Co., 581 N.W.2d 633, 636 (Iowa 1998), for the proposition that “an Iowa appellate court can uphold a lower court ruling on any ground, whether urged in the district court or not.” We expressly disavowed this practice in DeVoss v. State, 648 N.W.2d 56, 60-61 (Iowa 2002). We will not affirm a ruling on a ground not urged in the district court. DeVoss, 648 N.W.2d at 61. A party is not allowed to “sing a song to us that was not first sung in trial court.” State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). We do not consider, then, whether Harris engaged in protected activity, and nothing in this opinion shall be construed to so hold. We simply reverse the district court’s grant of summary judgment on the Estate’s Title VII and ICRA retaliation claims, insofar as the chest shot may constitute an adverse employment action attributable to Papa John’s.

B. Negligent Supervision

The Estate alleged Papa John’s negligently supervised Shields. Papa John’s filed a second partial motion for summary judgment. The court ruled the exclusivity provision of the IWCA preempted the Estate’s claim and dismissed. Because we find the Estate’s injuries arose out of and in the course of employment, we likewise hold the exclusivity provision of the IWCA bars recovery.

In Godar v. Edwards, we recognized a cause of action for negligent supervision. 588 N.W.2d 701, 709 (Iowa 1999). We did not, however, set forth the elements of negligent supervision in that case. See id.; Stricker v. Cessford Constr. Co., 179 F.Supp.2d 987, 1019 (N.D.Iowa 2001).

In order to prove negligent supervision, a plaintiff must show:

(1) the employer knew, or in the exercise of ordinary care should have known, of its employee’s unfitness at the time the employee engaged in wrongful or tortious conduct;
(2) through the negligent ... supervision of the employee, the employee’s incompetence, unfitness, or dangerous characteristics proximately caused injuries to the plaintiff; and
(3) there is some employment or agency relationship between the employee and the defendant employer.

Stricker, 179 F.Supp.2d at 1019 (citing Godar, 588 N.W.2d at 708-09); cf. Godar, 588 N.W.2d at 708-09 (quoting 27 Am. Jur. 2d Employment Relationship § 473, at 913-14 (1996)) (setting forth corresponding three elements of negligent hiring claim).

In Graves v. Iowa Lakes Community College, a plaintiff sought to recover under a negligent supervision theory. 639 N.W.2d 22, 25 (Iowa 2002). Unlike Godar, however, in Graves the plaintiff was also an employee of the defendant. Id. We recognized there was some support in other jurisdictions to extend the theory of negligent supervision to fellow employees. Id. This support, however, was limited to cases in which the fellow employee suffered a physical injury. Id. (citing Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442 (Minn.Ct.App.1996); Piper Jaffray Cos. v. Nat’l Union Fire Ins. Co., 967 F.Supp. 1148, 1157 (D.Minn.1997); Sibley v. Kaiser Found. Health Plan, 998 S.W.2d 399, 403-04 (Tex.Ct.App.1999)). Because the plaintiff in Gmves did not suffer a physical injury, we did not “decide whether a negligent supervision claim is available to a fellow employee.” Id. The Estate contends our language in Graves constitutes a “favorable comment” upon the possibility of extending the tort to cover fellow employees in a case like the one at bar, wherein the fellow employee suffered a physical injury.

We disagree with this characterization of Graves. We did not comment favorably upon the fact other courts had extended the tort; we simply recognized three other courts had so extended it. In any event, Graves is distinguishable because there we did not decide whether, if the tort of negligent supervision were to cover fellow employees, the exclusivity provision of the IWCA would bar a common law recovery. The exclusivity provision of the IWCA provides as follows:

The rights and remedies provided in this chapter ... for an employee ... on account of injury ... for which benefits under this chapter ... are recoverable, shall be the exclusive and only rights and remedies of the employee ... at common law or otherwise, on account of such injury ... [a]gainst the employee’s employer.

Iowa Code § 85.20. Benefits are recoverable “for any and all personal injuries sustained by an employee arising out of and in the course of employment, and in such cases, the employer shall be relieved from other liability ... for such personal injury.” Id. § 85.3(1) (emphasis added).

An injury “arises out of and in the course of employment” when “there is a causal connection between the employment and the injury” and “the injury and the employment coincide as to time, place, and circumstances.” Thayer v. State, 653 N.W.2d 595, 599-600 (Iowa 2002) (injuries occurring riding to work in van driven by coworker as part of company controlled van-pool program sustained “out of and in the course of employment”). The district court reasoned Harris’s injury was sustained “out of and in the course of employment” because (1) it occurred at his place of employment; (2) he was summoned by his manager to discuss a work-related issue; and (3) Shields was working at the time of the incident. For these same reasons, we agree with the ruling of the district court. In the present case, there is sufficient undisputed evidence to conclude Harris sustained his injury “out of and in the course of employment” to invoke the exclusivity provision of the statute.

We see no reason to carve out an exception to the general rule of preemption in this case. See 15 James R. Lawyer & Judith Ann Graves Higgs, Iowa Practice: Workers’ Compensation § 8-2, at 81 (2004) (“The employer enjoys almost total immunity from common law liability for injuries to an employee who is entitled to workers’ compensation benefits.” (footnote omitted)). Nelson v. Winnebago Industries, Inc., 619 N.W.2d 385 (Iowa 2000), is instructive. In Nelson, an employee claimed he was injured during a going-away party thrown for him at work. 619 N.W.2d at 386. His coworkers bound him with duct tape and carried him to a shower. Id. In the process, they dropped him. Id. The plaintiff sued his employer under two common law theories, false imprisonment and battery. Id. at 387. The employer claimed the exclusivity provision of the IWCA immunized it from common law claims. Id.

We ruled the sole remedy for the employee was in workers’ compensation. Id. In pertinent part, we stated:

We have found no case allowing a common-law suit against an employer for the acts of a supervising employee such as in this case. In fact, the general rule is that such suits are not permitted. When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer....
.... Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.

Id. at 387-88 (citations and internal quotation omitted). In this case, there is an insufficient showing in the record that the Nelson standard has been satisfied. See 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 103.07 (2003) (“A corporation’s negligent failure to prevent an assault on the plaintiff employee is clearly within the boundaries of the workers’ compensation act, and therefore cannot form the basis for a suit in tort. In the same vein, actions for negligent hiring, negligent supervision, or negligent retention are barred by the exclusivity provision.”).

The Estate claims Nelson creates a tension with Wilson v. IBP, Inc., 558 N.W.2d 132 (Iowa 1996), in which we held the district court properly exercised subject matter jurisdiction over a plaintiffs slander and breach of fiduciary duty claims. In Wilson, we held that

where no adequate remedy is provided by the [IWCA], then an injured worker’s claim falls outside of the exclusivity provision. [The plaintiffs] claims for breach of fiduciary duty and defamation, as intentional torts, fall outside the scope of the remedies available under the [IWCA].

Wilson, 558 N.W.2d at 137. Wilson, however, is clearly distinguishable; in that case, the tort claims were based upon the employer’s actions as a (self-insured) insurance company, and were, therefore, “independent of [the plaintiffs] initial physical injury.” Id. (emphasis added). Wilson is thus inapplicable to the case at bar.

The Estate complains that the present statutory scheme, so interpreted, fails to provide an adequate remedy for Harris’s injuries. In addition to potential claims against Shields, however, relief was available in workers’ compensation from Papa John’s.

The Estate also maintains we should not ignore a “contradiction” in Papa John’s position: namely, that on the one hand Papa John’s argues workers’ compensation is the Estate’s exclusive remedy because Harris’s injuries arose out of and in the course of employment, but on the other denying the same to avoid a claim therein. The Estate points to a letter from Allied Insurance, Papa John’s carrier, which denied the Estate’s workers’ compensation claim. Allied did so because it could not “substantiate that this injury arose in and out of the course and scope of his employment.”

Unfortunately, the record of the Estate’s workers’ compensation case is not before us. In its letter, Allied indicated it was willing to reconsider its decision if additional information were submitted, and pointed out review of its decision was available with the Division of Workers’ Compensation. We do not know what, if any, evidence the Estate presented to Allied, nor are we certain of the outcome of any proceedings. See Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 166 (Iowa 2003) (judicial estoppel doctrine requires proof party “successfully and unequivocally” asserted inconsistent position in a prior legal proceeding). For these reasons, the Estate’s “contradiction” argument fails to persuade us to allow the negligent supervision claim to proceed.

The Estate makes several other alternative arguments, including Harris’s premises liability claim, which is based upon an argument Harris was an invitee of Papa John’s. We have duly considered these claims, and reject them as insufficiently preserved, waived, or lacking merit.

IV. Conclusion

We find the “chest shot” may constitute an adverse employment action attributable to Papa John’s, and therefore reverse the district court’s grant of summary judgment on the civil rights claims and remand for further proceedings. We affirm, however, the district court’s ruling that the Iowa Workers’ Compensation Act preempts the Estate’s negligent supervision claim. As a consequence, the Estate’s negligent supervision claim against Papa John’s may not proceed. Summary judgment on that issue was proper.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

      . Throughout this opinion the two named defendants, P.J. Iowa, L.C. and Papa John’s Pizza, are referred to collectively as "Papa John’s."

      . One of Papa John's "nine laws of management conduct” stated
      Management shall not engage in any sexual harassment or "date” anyone in his or her direct chain of command. Doing so constitutes a violation. Anyone failing to report and [sic] act of harassment is also in violation.
      Managers were also required to start meetings by reminding employees Papa John's did not tolerate "[Unprofessional behavior.” "Unprofessional behavior” included "[i]nti-mate relations” with subordinates.

      . The Area Manager took a statement from General Manager Meeks shortly after Harris’s death. In her deposition, the Area Manager stated "I was told [by Meeks] ... that [Meeks] had told [Shields] to take care of it.”


author: MAHAN, J.

text:
    In the Interest of M.A.P., Minor Child, F.F., Sr., Father, Appellant.
    No. 03-0846.
    Court of Appeals of Iowa.
    Feb. 11, 2004.
    Thomas Lenihan, West Des Moines, for appellant-father.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Wayne Reisetter, County Attorney, and Sean Wieser, Assistant County Attorney, for appellee.
    Misheal Waller-Little, Bouton, for mother.
    Victoria Meade, Des Moines, guardian ad litem for minor child.
    Considered by HUITINK, P.J., and VOGEL and MAHAN, JJ.
   MAHAN, J.

I. Background Facts and Proceedings

Mary Ann, born in July 2002, was removed from the care of her mother, Jeani-fer, shortly after her birth due to the fact Jeanifer’s parental rights to her five older children had recently been terminated. At the time of the removal, Mary Ann’s paternity was unknown. Later testing showed Fidel was Mary Ann’s father. The parties stipulated that Mary Ann should be adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) and (c)(2) (Supp.2001).

The juvenile court entered a dispositional order on December 16, 2002, continuing Mary Ann in foster care. The court found Fidel needed more parental training and a better living arrangement before he could care for Mary Ann. On March 6, 2003, the juvenile court ordered “that all previous Orders of the Court shall remain in effect.”

On April 14, 2003, Fidel filed a motion to vacate the dispositional order, under section 232.103 (2003). He claimed the dispo-sitional order failed to meet the statutory requirements of section 232.102(5). He also claimed the State did not present sufficient evidence to show Mary Ann could not be placed in his care. The juvenile court denied the motion, finding the dispositional order was sufficient, when the record was viewed as a whole. Fidel appeals.

II. Standard of Review

Our scope of review in juvenile court proceedings is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). We review both the facts and the law, and adjudicate rights anew. Id. Although we give weight to the juvenile court’s factual findings, we are not bound by them. Id. Our primary concern is the best interests of the child. In re E.H., 578 N.W.2d 243, 248 (Iowa 1998).

III. Motion to Dismiss

The State filed a motion to dismiss, claiming Fidel’s appeal was untimely. The State asserts that in order to challenge the provisions of the dispositional order, Fidel needed to appeal the dispositional order, filed on December 16, 2002, or the review order, filed on March 6, 2003. Generally, an appeal must be taken within thirty days of the order being appealed. See Iowa R.App. P. 6.5(1). Fidel’s appeal was filed on May 29, 2003. The Iowa Supreme Court has ordered that this issue should be submitted with the appeal.

Fidel’s motion to vacate was filed pursuant to section 232.103(1), which provides:

At any time prior to expiration of a dispositional order and upon the motion of an authorized party or upon its own motion as provided in this section, the court may terminate the order and discharge the child, modify the order, or vacate the order and make a new order.

As a parent, Fidel was authorized to file a motion to vacate the dispositional order. See Iowa Code § 232.103(2)(b).

Because a motion to vacate may be filed, “[a]t any time prior to expiration of a dispositional order ...” and because Fidel appealed the juvenile court’s ruling on his motion to vacate within thirty days, we conclude Fidel’s appeal in this case is not untimely. We deny the State’s motion to dismiss.

TV. Motion to Vacate

A separate issue is whether Fidel has raised valid grounds to vacate the dispositional order. He claims the disposi-tional order failed to meet the statutory requirements of section 232.102(5) and that the State did not present sufficient evidence to show Mary Ann could not be placed in his care.

We note Fidel did not directly challenge the dispositional order at the time it was entered. The dispositional order was a final, appealable order. See In re W.D., 562 N.W.2d 183, 185 (Iowa 1997) (citing In re Long, 313 N.W.2d 473, 476 (Iowa 1981)). In considering a similar issue, we previously held:

No appeal was taken from the entry of this dispositional order. Therefore, the issue had been litigated. The review hearing from which this appeal was taken is not a hearing to readjudicate the original grounds for finding the child was a child in need of assistance; rather it is a hearing to consider changed circumstances which may warrant returning the child to his or her parent.

In re A.W., 464 N.W.2d 475, 477 (Iowa Ct.App.1990) (citing In re Welcher, 243 N.W.2d 841, 844 (Iowa 1976)); see also In re D.S., 563 N.W.2d 12, 14 (Iowa Ct.App.1997) (noting a party seeking modification of a dispositional order must show a material and substantial change in circumstances).

We determine Fidel’s motion to vacate improperly attempted to collaterally attack the findings and conclusions of the disposi-tional order. Cf. In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.App.1986) (finding a motion to vacate a dispositional order would be proper where the father had not received notice of the CINA proceedings). The juvenile court correctly denied Fidel’s request to revisit the issues addressed in the dispositional order.

Fidel has raised several additional issues in his appeal, which were not raised before the juvenile court. We do not address these issues on appeal. Under our rules of civil procedure, an issue which is not raised before the juvenile court may not be raised for the first time on appeal. In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct.App.1997).

We affirm the decision of the juvenile court.

AFFIRMED.

      . We note that effective July 1, 2003, appeals from final orders in CINA proceedings must be made within fifteen days. Iowa R.App. P. 6.5(2).


author: SACKETT, C.J.

text:
    R.R.S. INVESTMENTS, Plaintiff-Appellant, v. CITY OF DAVENPORT BOARD OF REVIEW, Defendant-Appellee.
    No. 03-376.
    Court of Appeals of Iowa.
    Feb. 27, 2004.

      Steven E. Balk of McGhee, Bolling, Whitemore, Olson & Pepping, Ltd., Silvis, Illinois, for appellant.
    John R. Martin, Davenport, for appellee.
    Heard by SACKETT, C.J., and VAITHESWARAN and EISENHAUER, JJ.
   SACKETT, C.J.

Plaintiff-appellant R.R.S. Investments, Inc. appeals the summary judgment of the district court in favor of defendant-appel-lee City of Davenport Board of Review (Board) affirming the Board’s denial of plaintiffs tax assessment appeal. On appeal plaintiff claims the district court erred in granting summary judgment to the Board on the basis that plaintiff had failed to exhaust all of its administrative remedies prior to appeal. We affirm.

I.BACKGROUND FACTS AND PROCEEDINGS

The facts of this case are not in dispute. Plaintiff owns property containing a dialysis clinic. A 1998 assessment set the value of the property at $713,400. Plaintiff appealed this assessment to the Board, which determined the value of the property to be $730,900. Plaintiff appealed the Board’s assessment to the district court, which determined the value to be $630,000. Plaintiff again appealed, and on July 28, 2000 our court determined the proper value for the 1998 assessment was $472,000. R.R.S. Inv. v. Board of Review of the City of Davenport, No. 99-0697, 2000 WL 852817 (Iowa Ct.App. June 28, 2000).

While the 1998 assessment was pending, the property at issue was reassessed in 1999 and again in 2001. The property was assessed at $663,500 in 1999. This assessment remained unchanged in 2000. In 2001 the property was assessed at $585,200. This 2001 assessment remained unchanged in 2002.

On April 29, 2002 plaintiff appealed to the Board, contesting the 1999, 2000, 2001 and 2002 assessments by claiming they should reflect the reduced court-of-appeals assessment value. The Board denied plaintiffs appeal. Plaintiff appealed to the district court. The court granted summary judgment to the Board on the basis that plaintiff had failed to exhaust its administrative remedies.

In this appeal plaintiff contests the district court’s decision only as it applies to the 1999 and 2000 assessments.

II. SCOPE OF REVIEW

As both parties agree there are no facts in dispute in this matter, our review of the district court’s summary judgment is for errors at law. Transform, Ltd. v. Assessor of Polk County, 543 N.W.2d 614, 615 (Iowa 1996).

III. ANALYSIS

At issue is whether plaintiff, whose appeal of the 1998 assessment was pending until June of 2000, was required to renew an assessment protest in the years 1999 and 2000 in order subsequently to challenge those assessments on the basis of the reduced court-of-appeals valuation.

Iowa has a biennial system of real estate tax assessment. Odd-numbered years are “assessment years.” Transform, 543 N.W.2d at 615. Even-numbered years are “interim years.” Id. During interim years property generally maintains the value it had the preceding assessment year. Id.

Iowa Code section 441.37 (2001) sets the parameters for appealing a property assessment. It states in relevant part,

1. Any property owner or aggrieved taxpayer who is dissatisfied with the owner’s or taxpayer’s assessment may file a protest against such assessment with the board of review on or after April 16, to and including May 5, of the year of the assessment.

(Emphasis added.) Unless the property value changes, there is no recognized interim-year appeal. Transform, 543 N.W.2d at 616.

In Transform, 543 N.W.2d at 617, however, the supreme court reasoned that because there was no statutory interim-year ground for appeal except in the case of property value changes, a taxpayer who successfully challenged an assessment year assessment was entitled to a comparable adjustment to the interim-year assessment for the following year in the absence of timely protest or appeal.

Plaintiff argues that based upon the $630,000 valuation of the district court, he did not consider it a wise use of his resources to pursue both his appeal of that valuation as well as each of the 1999 and 2000 assessments. Plaintiff claims it was not until the court of appeals significantly reduced the valuation of his property to $472,000, which occurred after the deadline for 1999 and 2000 assessment appeals, that it became prudent to appeal those assessments as well.

As authority, plaintiff refers us to the Transform decision and asks that we expand Transform to allow for comparable assessment adjustments for all years which pass between the year an assessment is appealed and the year in which it proves successful.

Transform is distinguishable, however, from the case at hand. Transform only applies to the two-year assessment year-interim year time period.. Transform, 543 N.W.2d at 617. As the Board argues, the supreme court’s reasoning in Transform was based largely on the fact that the only statutorily recognized basis for an interim-year challenge was a change in the value of the property during that interim year. Id. Because an interim-year challenge alleging an excessive assessment is not a recognized ground for appeal, the court concluded taxpayers should not have to make such a groundless claim in order to exhaust their administrative remedies. Id. The court therefore allowed for comparable adjustments in interim-year valuations if taxpayers successfully appealed the immediately preceding assessment year valuations, whether or not an interim-year appeal was formally made. Id.

In this case, in contrast, plaintiffs requested adjustment would apply to an entirely new assessment year (1999) as well as to the interim year (2000) following that new assessment year. Contrary to the facts in Transform, in this case plaintiff had the opportunity to pursue any of the statutory assessment appeals available during new assessment year 1999.

We further note that according to Nicholas Doenges’s affidavit, plaintiffs property was reassessed using a different assessment methodology in 1999. In Transform only one assessment was at issue, and the interim year assessment was merely allowed to conform to the assessment of the preceding assessment year. Id. In this case plaintiff is seeking to make an entirely new two-year assessment year-interim year period conform to the preceding two-year period, even after the property value has been re-assessed under a different methodology.

Given the rationale of Transform and the fact that the property at issue was reassessed and given a different value in 1999, we are not inclined to extend the holding in Transform to provide for assessment adjustments beyond the two-year assessment year-interim year period. The trial court correctly granted the summary judgment.

AFFIRMED.