author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Michael John ALBERTS, Appellant.
    No. 04-1949.
    Supreme Court of Iowa.
    Oct. 6, 2006.

      Paul D. Miller of Miller Law Office, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Cole, Assistant County Attorney, for appellee.
   STREIT, Justice.

Is skinny-dipping a form of sexual behavior? Michael John Alberts allegedly sexually assaulted R.M., his nephew’s twenty-two-year-old girlfriend. Alberts was convicted of third-degree sexual abuse following a jury trial in Johnson County, Iowa. On appeal, Alberts alleged the prosecutor engaged in prosecutorial misconduct and complained numerous errors were made by the district court. Because we find the district court erred by failing to determine whether R.M. made a prior false allegation of sexual misconduct relating to a skinny-dipping incident, we reverse the district court judgment on this error and remand for further proceedings.

I. Facts and Prior Proceedings

On the night of October 19, 2003, R.M. attended a bachelorette party at a Cedar Rapids bar named Borrowed Bucks. Al-berts was also at the bar, and the two struck up a conversation. Alberts and R.M. knew each other through R.M.’s boyfriend, Jesse Goeller. Alberts is Jesse’s forty-two-year-old uncle. R.M. attended a half dozen or so family gatherings with Jesse where Alberts was present.

Additionally, a few weeks prior to the bachelorette party, Jesse, R.M., and a friend of R.M. ran into Alberts at Borrowed Bucks. There, the four of them danced as a group and at times Alberts and R.M. danced together in a provocative manner. When the bar closed, R.M. and Jesse sat with Alberts in the cab of Al-berts’ semi-truck. R.M.’s friend waited in the car. R.M. and Alberts smoked marijuana. Before leaving, R.M. unhooked her bra under her shirt and hung it on Alberts’ rearview mirror. R.M. left the cab and Jesse followed a couple minutes later after Alberts handed Jesse R.M.’s bra.

During the bachelorette party, R.M. drank several beers and a shot of tequila. At closing time, R.M. went with Alberts to his family’s lake house instead of remaining with the bachelorette group. When they arrived at the lake house, R.M. ate some food, headed for the bathroom, and vomited. She then told Alberts she felt “like crap” and needed to “sleep this off.” Alberts followed R.M. into one of the bedrooms and sat next to her on the bed. With Alberts still in the room, R.M. took off her skirt and climbed into bed.

Sometime later, R.M. woke to find Al-berts sucking her breasts. According to R.M., she did not respond to his actions. Alberts then performed oral sex on her and had intercourse with her. R.M. claims she pretended to be asleep during the entire episode. Alberts thereafter left to sleep in another bedroom.

The next morning, Alberts drove R.M. to her home. R.M. showered as soon as she got there. Jesse, the boyfriend, who had been visiting friends in Ames, returned home early in the afternoon. After speaking with R.M. about the previous night’s events, Jesse took R.M. to the hospital.

At the hospital, R.M. told the nurse she needed to report a rape. A sexual assault examination ensued. The nurse found semen inside her vagina, but did not observe any evidence of trauma or injury. Police officers spoke with R.M. at the hospital and told her she had the option to press charges, which she did three days later.

Before trial, the district court granted the State’s motion in limine which prevented Alberts from presenting testimony about R.M.’s sexual history or a recent skinny-dipping episode with another man.

At trial, Alberts testified R.M. consented to the sexual encounter by kissing him and moving her hips during intercourse. His attorney argued R.M. only claimed it was non-consensual because she did not want to lose her relationship with Jesse. This argument was unsuccessful, and the jury convicted Alberts of third-degree sexual abuse.

Alberts argued a voluminous number of issues on appeal. He argued: (1) the district court erred by ruling that R.M.’s mental health records were not relevant or discoverable; (2) the district court improperly excluded expert testimony regarding the possible effect of R.M.’s mental health on her credibility; (3) the district court erred by excluding certain evidence regarding R.M.’s alleged prior false claim of sexual assault and flirtatious nature when drinking; (4) his trial counsel was ineffective when he did not attempt to introduce evidence of R.M.’s infidelity and promiscuity as impeachment evidence; (5) his trial counsel erred by failing to object to R.M.’s testimony that she feared for her life during the sexual assault; (6) his trial counsel failed to object to three instances of questioning by the prosecution and comments made during closing arguments which involved possible Graves violations; (7) his trial counsel failed to object to alleged prosecutorial misconduct; and (8) the district court erred in overruling the motion for new trial based on alleged misconduct by the prosecutor during direct examination of R.M.

The court of appeals addressed all issues and affirmed the decision of the district court. We granted further review.

II. Merits

A. False-Claim Exception to the Rape-Shield Law

Because Alberts had elicited statements from witnesses during depositions regarding R.M.’s flirtatious nature, her past sexual comments, and prior allegation of being trapped by a man during a skinny-dipping incident, the State filed a motion in limine asking the court to determine whether such evidence was admissible. The State contended such testimony was either inadmissible under the Iowa rape-shield law or irrelevant to the case at hand.

In the unreported pretrial hearing, the State pointed to several incidents involving R.M. it considered inadmissible and irrelevant. One specific instance was a Fourth of July party where Jesse’s brother Josh discovered R.M. skinny-dipping with Chris Slach. In his deposition, Josh described how he saw R.M. with her arms around Slach in the Cedar River. Josh said he “busted them” because R.M. was supposed to be dating his brother. According to Josh, R.M. came out of the water crying. She told Josh “[tjhank God you saw me. I didn’t know what to do out there.... I couldn’t get away from him. I didn’t know what to do.” R.M. later explained that nothing sexual had happened between the two. Slach was also prepared to testify it was R.M.’s idea to go skinny-dipping and there was no sexual contact between the two.

During argument on the motion in li-mine, Alberts contended this evidence was relevant because R.M.’s statement to Josh immediately after the skinny-dipping incident was similar to her response about her sexual encounter with Alberts. He claimed this evidence was important to his case because it supported his theory that R.M. accused men of improper sexual conduct in order to shift blame away from her supposed infidelity. He also claimed this incident was particularly relevant because it reflected on the credibility of the only other witness to the alleged rape — R.M.

Alberts argued the rape-shield law was not applicable to this situation because there was no sexual contact and therefore no “past sexual behavior.” Alternatively, he argued that if this was sexual activity or sexual behavior, then it was admissible under the false-claim exception to the rape-shield law.

The district court sustained most of the State’s motion in limine and specifically excluded any evidence pertaining to the skinny-dipping incident. The court also excluded any testimony which described R.M.’s character as flirtatious or promiscuous. However, the court allowed the jury to hear evidence that R.M. had engaged in “dirty dancing” with Alberts a few weeks before the alleged sexual abuse, smoked marijuana with him in the cab of his semi-truck, and removed her bra and hung it on his rear-view mirror.

1. Preservation of Error

The State does not contend Alberts failed to preserve this matter for our review. In its appellate brief, the State conceded the error was preserved “by motions and an offer of proof.” However, because the issue was only addressed during the motion in limine, we find it proper to analyze whether it was properly preserved for our review.

The general rule regarding the preservation of alleged errors in rulings on motions in limine was stated in State v. Tangie, 616 N.W.2d 564, 568-69 (Iowa 2000):

Ordinarily, error claimed in a court’s ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial. However, “where a motion in limine is resolved in such a way it is beyond question whether or not the challenged evidence will be admitted during trial, there is no reason to voice objection at such time during trial. In such a situation, the decision on the motion has the effect of a ruling.”

(Citations omitted.)

The key to our analysis is to determine what the trial court ruling purported to do. State v. O’Connell, 275 N.W.2d 197, 202 (Iowa 1979). “A ruling only granting or denying protection from prejudicial references to challenged evidence cannot preserve the inadmissibility issue for appellate review.” Id. However, “if the ruling reaches the ultimate issue and declares the evidence admissible or inadmissible, it is ordinarily a final ruling and need not be questioned again during trial.” Id.

Before we analyze whether the court’s ruling resolved the matter in such a way that it was beyond question that the challenged evidence would not be admitted during trial, we must consider the context of the court’s ruling. The State filed a motion in limine asking for “a hearing outside the presence of the jury, accompanied by an offer of proof ... to determine whether such testimony would be admissible.” Alberts filed a response to the State’s motion in limine. His response contained offers of proof in the form of deposition testimony from R.M., Chris Slach (the male skinny-dipper), Josh Goel-ler, and other witnesses related to other items in the motion. Alberts also filed three separate briefs outlining the law surrounding the admissibility of such evidence.

The district court conducted a hearing on the admissibility of such evidence. Although the hearing was unreported, we can glean from the court’s oral ruling that both parties had a full opportunity to argue the merits of their respective positions. After this hearing, the court made an oral ruling on the motion. The district court sustained the State’s motion in li-mine to keep the defense from presenting evidence on the skinny-dipping incident. In so ruling, the district court judge stated:

I’m not going to permit testimony or evidence concerning [R.M.’s] mental health or past sexual comments or activities, with the exception of [the event where she danced with Alberts a few weeks prior to the alleged sexual assault].

After the district court sustained the State’s motion, the court made the following additional comments regarding its ruling:

if R.M. gets into her virtue, if that’s the right term — I’m referring now to the potential testimony that she had never cheated on her boyfriend — that could open the door to some of these other matters that have been raised.

When asked whether testimony that R.M. told Alberts she would never “cheat” on Jesse would open the door to this excluded evidence, the court stated “Not necessarily. I can’t tell you right now. It depends on the context that comes in.”

Even though the district court stated the evidence may become admissible if R.M. opened the door to her virtue, this does not change the fact that the court’s ruling was controlling so long as this door was not opened. The State specifically asked for a ruling on the admissibility of such evidence, and the plain language of the court’s ruling — “I’m not going to permit testimony or evidence concerning [R.M.’s] mental health or past sexual comments or activities” — rings of a final ruling. Although the district court did not specifically state the evidence was “inadmissible,” the State specifically asked that the court determine its admissibility and the court did so. In addition, both parties treated the court’s ruling on the motion as a final decision.

We find the district court did rule on the admissibility of the testimony regarding the skinny-dipping incident. See O’Connell, 275 N.W.2d at 202 (“[I]f the ruling reaches the ultimate issue and declares the evidence admissible or inadmissible, it is ordinarily a final ruling and need not be questioned again during trial.”). The ruling was definitive and Alberts was not further required to object at trial. See Tangie, 616 N.W.2d at 569 (when court rules on admissibility of evidence in a motion in limine, objection need not be renewed at trial); State v. Mark, 286 N.W.2d 396, 410 (Iowa 1979) (same); O’Connell, 275 N.W.2d at 202 (same). Therefore, Al-berts preserved error on this issue.

2. Abuse of Discretion

Alberts claimed the district court erred when it ruled he could not present evidence about the skinny-dipping incident or question R.M. about the incident during cross-examination.

We review trial court rulings on admissibility of evidence under rule 5.412 in criminal prosecutions for abuse of discretion. State v. Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). Reversal is warranted only upon showing the “court exercise[d] its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Id.

The trial court did not elaborate on why it sustained the State’s motion in limine. Therefore, we analyze whether the court abused its discretion in excluding the evidence under the reasons proffered by the State — the evidence was protected “past sexual behavior” of the complaining witness or, in the alternative, the evidence was irrelevant and prejudicial.

a. Rape-Shield Law

Rule 5.412 prohibits introduction of reputation or opinion evidence of a complainant’s “past sexual behavior” and substantially limits admissibility of evidence of specific instances of a complainant’s past sexual behavior. Rule 5.412(d) defines “past sexual behavior” as “sexual behavior other than the sexual behavior with respect to which sexual abuse is alleged.” We recently clarified this definition:

“past sexual behavior” means a volitional or non-volitional physical act that the victim has performed for the purpose of the sexual stimulation or gratification of either the victim or another person or an act that is sexual intercourse, deviate sexual intercourse or sexual contact, or an attempt to engage in such an act, between the victim and another person.

State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) (quoting State v. Wright, 97 Or.App. 401, 776 P.2d 1294, 1297-98 (1989)).

In his brief to the district court, Alberts argued the skinny-dipping incident was not “past sexual behavior” and “not a claim of prior sexual activity because no actual sexual contact occurred.” In support of this argument, Alberts offered the deposition testimony of both skinny-dippers.

When questioned at her deposition about the incident, R.M. denied any sexual activity occurred:

We were skinny dipping in the river together, and he got close to me and asked me if he could kiss me, and I said, “No, I have a boyfriend.”

Slach corroborated R.M.’s testimony that she declined his request for a kiss. Both parties expressly denied any sexual activity occurred. Nonetheless, based on all of the circumstances, we find the incident to be past sexual behavior.

At the outset, we concede the difficulty in determining what sexual behavior is for purposes of our rape-shield law. In State v. Zaehringer, 280 N.W.2d 416 (Iowa 1979), we were asked to determine the applicability of the rape-shield law as it then existed to nude posing. There, we stated:

We are unable to conclude that posing nude is per se, sexual conduct which the legislature intended to exclude.... [Pjosing nude does not in and of itself infer or connote sexual activity or conduct. Absent a showing or implication of sexual activity of some sort accompanying the posing, § 782.4 does not come into play. While there may be those to whom nude posing is sexually suggestive, to find nude posing to be “sexual conduct” within the meaning of § 782.4 would be to place a strained and unreasonable construction on that statute.

Zaehringer, 280 N.W.2d at 420. Just like nudity alone is not sexual, skinny-dipping in and of itself is not sexual behavior. But in this case, the skinny-dipping incident should be deemed sexual behavior based on the circumstances described. Slach testified he was at a Fourth of July party drawing a beer from the keg when R.M. approached him and asked him if he would like to go swimming. It was approximately midnight and the two of them had never previously spoken. At • his deposition, Slach said:

I didn’t see any reason to decline her. I wasn’t seeing anybody at the time, and I just assumed from the way that she come up to me that she was somewhat interested, and it didn’t appear to be at the time that she was attached to anybody either.

According to Slach, R.M. took her clothes off first and encouraged him to do the same. He recalls both of them being completely naked. While they were in the river, R.M. put her arms around Slach’s shoulders, which prompted him to ask for permission to kiss her. Slach stated “it kind of seemed to me like she was coming on to me.” After R.M. declined the kiss, the two of them continued to have their arms around each other for another five minutes until Josh interrupted them, causing them to get out of the water.

Based on these facts, the skinny-dipping was likely a precursor to sexual activity. This is evidenced by Slach asking for a kiss. To say it was not sexual behavior would be to say a circumstance where the complaining witness was thwarted in her attempt to meet someone for an amorous rendezvous was not sexual behavior. Such a result would be contrary to the purpose of the rape-shield law, which is to protect the victim’s privacy, encourage the reporting and prosecution of sex offenses, and prevent the parties from delving into dis-tractive, irrelevant matters. Mitchell, 568 N.W.2d at 497. Thus, this particular episode of skinny-dipping is covered by the rape-shield law unless R.M. made a related false allegation of sexuál misconduct.

In Baker, we held prior false claims of sexual activity do not fall within the coverage of our rape-shield law. Baker, 679 N.W.2d at 10 (“Because a false allegation of sexual activity is not sexual behavior, such statements fall outside both the letter and the spirit of the rape-shield law.”). There, we assumed the claim was false and consequently found it unnecessary to address the procedures and standards to be applied in making that threshold determination. Id. at 9 n. 1. That issue is now before us.

In keeping with the policy behind our rape-shield law, it is imperative that a claim of sexual conduct (or misconduct) by the complaining witness be shown to be false before it is admissible at trial. Allowing the jury to make the initial determination of the truth or falsity of the alleged statement “would contradict the purpose of rape-shield laws — which is to prohibit a jury from considering evidence about an alleged victim’s sexual conduct, unless a judge first determines that such evidence is manifestly necessary to achieve a fair trial.” State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34, 40 (1997). Thus, we hold a criminal defendant wishing to admit such evidence must first make a threshold showing to the trial judge outside the presence of the jury that (1) the complaining witness made the statements and (2) the statements are false, based on a preponderance of the evidence. We agree with the Supreme Court of New Jersey that this “standard strikes the right balance, placing an initial burden on the defendant to justify the use of such evidence while not setting an exceedingly high threshold for its admission.” State v. Guenther, 181 N.J. 129, 854 A.2d 308, 324 (2004); see also State v. West, 95 Hawai’i 452, 24 P.3d 648, 656 (2001) (adopting preponderance of the evidence as the standard of proof a defendant must meet when seeking to prove the complaining witness made a prior false accusation of sexual assault); Miller v. State, 105 Nev. 497, 779 P.2d 87, 90 (1989) (same); Morgan v. State, 54 P.3d 332, 339 (Alaska Ct.App.2002) (same).

As we said in Baker, a falsity determination simply means the statements are not “past sexual behavior” within the meaning of our rape-shield law. Baker, 679 N.W.2d at 10. We note “[t]he evidence remains subject to all other applicable evidentiary requirements and considerations.” Quinn, 490 S.E.2d at 40. If the trial judge ultimately determines such evidence is admissible, the State may nevertheless rebut or impeach such evidence before the ultimate trier of fact. Id.

In the present case, the trial court sustained the State’s motion in limine without explanation. Presumably, the court found the skinny-dipping incident to be “past sexual behavior.” However, the court failed to take the additional step of determining whether R.M. made a false claim of sexual misconduct relating to the incident, which would make the rape-shield law not applicable.

b. Relevancy

In its appellate brief, the State concedes that “[wjhile the skinny-dipping incident may not be covered under Iowa Rule of Evidence 5.412, it was properly excluded under general considerations of relevancy.”

Evidence is properly excluded from trial if it is not relevant to the trial. Iowa R. Evid. 5.402. Relevant evidence is “evidence having any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401.

The test to determine if evidence is relevant is “ ‘whether a reasonable [person] might believe the probability of the truth of the consequential fact to be different if [such person] knew of the proffered evidence.’ ” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (citation omitted) (first alteration in original); accord State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). The State contends the skinny-dipping incident was irrelevant because it has nothing to do with whether R.M. consented to the sexual encounter with Alberts.

We disagree. In her deposition, R.M. stated Slach never “forced himself’ on her while they were skinny-dipping. However, at the time of the incident, R.M. allegedly came out of the water crying. According to Josh, the person who discovered R.M. and Slach skinny-dipping, R.M. said: “Thank God you saw me." I didn’t know what to do out there.... I couldn’t get away from him. I didn’t know what to do.” R.M.’s statements to Josh, if she did say them, are relevant for two reasons. First, they reflect on her credibility as a witness. Second, the alleged statements may reveal a motive to lie. If a fact finder were to conclude she made untruthful statements to preserve her boyfriend’s perception of her virtue when she was discovered skinny-dipping with another man, the fact finder might reasonably conclude she’s also untruthful with respect to her allegations that Alberts raped her for the same reason.

c. Rule 5.403 Balancing

Even if the evidence was relevant, it may still “be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Iowa R. Evid. 5.403.

In Baker, after we concluded the false claim of past sexual behavior was not ex-cludable under rule 5.412 because the false claim was not in fact “sexual behavior,” we analyzed whether the district court abused its discretion in concluding the unfair prejudice inherent in the evidence of the prior false claim outweighed its probative value. Baker, 679 N.W.2d at 10-11. We noted rule 5.412 suggests the complaining witness’s reputation and privacy are the primary interests in the balancing process. Id. at 11. However, when the conduct is not covered by the rape-shield law, it is instead evaluated under the traditional rule 5.403 prejudice analysis. Id. at 11-12. Under rule 5.403, the primary focus is not upon the witness, but the interests of the defendant and the right of the defendant to present a defense. Id. at 12.

Based on the record before us, we do not find any of the aforementioned dangers potentially outweighed the probative value of this evidence. This evidence would not have been confusing to the jury, nor would it have been cumulative or a waste of time. Moreover, the evidence would not have been misleading to the jury because R.M. would have had ample opportunity to deny or explain her allegedly untruthful statements. Finally, while it may have been embarrassing for R.M. to testify about going skinny-dipping, this is not the kind of unfair prejudice that will outweigh the probative value of clearly relevant evidence. This is especially true when the countervailing right of a defendant to present a defense to a criminal charge is at stake. Id.

Therefore, if on remand R.M.’s alleged statements to Josh satisfy the threshold showing of falsity we adopt today, we see no reason to exclude the evidence as irrelevant or unfairly prejudicial.

3. Resulting Prejudice

The facts of this case indicate Al-berts was entitled to a hearing in order to prove R.M. made a prior false claim of sexual misconduct relating to a skinny-dipping incident with another man. As we have already said, a showing of falsity merely makes the rape-shield law inapplicable with respect to the false claim. We must now decide whether the trial court’s failure to conduct such a hearing requires us to reverse and remand for a new trial. State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005).

The verdict was primarily ground on the conflicting testimony of R.M. and Alberts. R.M. testified Alberts sexually assaulted her. Alberts admits having sex with her, but claims the sex was consensual. There was no physical evidence of an assault. No other witnesses testified Alberts sexually assaulted the victim. The jury’s assessment of the relative credibility of R.M. and Alberts was the key to the conviction, thereby enhancing the relevance of the allegedly false prior allegation. By denying Alberts the opportunity to prove to the court R.M. made a prior false claim of sexual misconduct, the court hampered Al-berts’ ability to argue R.M. accused another man of improper conduct to disguise her own questionable behavior. This error may have unduly prejudiced Alberts’ defense and therefore requires us to remand the case so the trial court may determine whether R.M. made false statements to Josh.

B. Other Matters Raised on Appeal

With respect to the remaining issues raised by Alberts, we agree with the court of appeals they have no merit and affirm.

III. Conclusion

We find the trial court abused its discretion by excluding evidence of the skinny-dipping incident without first giving Al-berts the opportunity to prove at a 5.412(c) hearing that R.M. made a prior false claim of sexual misconduct involving the man with whom she went skinny-dipping. For the sake of judicial economy, we remand for a hearing to determine whether R.M. made these statements and if so, whether they are false. If the trial court finds Alberts meets the threshold showing set forth in this opinion, then a new trial shall be granted. If Alberts fails to make such a showing, then his conviction stands. This matter is remanded to the trial court for proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS PARTIALLY VACATED; CASE REMANDED.

      . There is some debate on whether R.M. was wearing any clothing while skinny-dipping. Josh said R.M. "might” have been wearing her bra and underwear, while the male skinny-dipper stated in his deposition "I was completely naked, and I believe [R.M.] was too.”

      . If we found this incident was not “sexual behavior” then, assuming relevance, it would be admissible irrespective of the falsity of R.M.’s alleged statements to Josh. R.M.'s supposed statements make the incident sexual if it was not already.

      . Under our rape-shield law, a defendant intending to offer evidence of specific instances of the complaining witness's past sexual behavior must first make a written motion to offer such evidence not later than 15 days before the trial date. Iowa R. Evid. 5.412(c )(1). This procedural requirement would also apply to allegedly false claims of sexual conduct because they are covered by the rape-shield law unless proven to be false. The motion must be accompanied by a written offer of proof and the trial court must order a hearing in chambers to determine the admissibility of such evidence. Id. 5.412(c)(2).

      . Notwithstanding rules similar to our rule 5.608, some jurisdictions carve out a special exception and allow the use of extrinsic evidence to contradict the complaining witness’s answer with respect to a prior false accusation. Compare State v. Long, 140 S.W.3d 27, 31 (Mo.2004) (allowing a criminal defendant to introduce extrinsic evidence of prior false allegations “in some cases’’) and Morgan v. State, 54 P.3d 332, 336 (Alaska Ct.App.2002) (allowing a criminal defendant to both cross-examine the complaining witness and present extrinsic evidence regarding a prior false accusation of sexual assault), with State v. Almurshidy, 732 A.2d 280, 287 n. 4 (Me. 1999) (noting extrinsic evidence to prove the falsity of the accusation is not admissible). See also Denise R. Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Ominibus, 7 Yale J.L. & Feminism 243, 250 (1995) (making a distinction between a false allegation that demonstrates a "motive to fabricate” with a false allegation that merely shows the witness's "character for untruthfulness,” and challenging the rationale behind allowing extrinsic evidence to prove the latter).

      . At her deposition, R.M. stated Slach never "forced himself” on her while they were skinny-dipping. However, she was never given the opportunity to admit or deny making statements to that effect to Josh as she came out of the water.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Trang LE, as Mother and Next Friend of Amanda Le, A Minor, and Trang Le, Appellants, v. Yaacov VAKNIN and American Family Mutual Insurance Company, Appellees.
    No. 04-0947.
    Supreme Court of Iowa.
    Oct. 6, 2006.

      Nathan E. Levin and Angelina M. Thomas of Newbrough, Johnston, Brewer, Maddux & Howell, L.L.P., Ames, for appellants.
    Scott K. Green, West Des Moines, for appellee American Family Mutual Insurance Company.

      No appearance for appellee Yaacov Vak-nin.
   CARTER, Justice.

Plaintiffs, Amanda Le and her mother, Trang Le, appeal from an adverse judgment in their action against American Family Insurance Company (American Family), their uninsured-motorist carrier. They also appeal from the district court’s reduction of the damages awarded against defendant Yaacov Vaknin based on a third-party payment of plaintiffs’ medical expenses. After reviewing the record and considering the arguments presented, we affirm the judgment in favor of American Family, vacate the judgment against Vak-nin, and remand for further proceedings.

Amanda Le (Amanda) was a passenger in an automobile driven by defendant Vak-nin and owned by his father. Amanda’s boyfriend, Hop Nguyen, and her friend, Kate Polouchkina, were also passengers in the car. Both Amanda and Kate were thirteen years of age, did not have learning permits, and had not previously driven a car. Notwithstanding this fact, Vaknin permitted first Kate and later Amanda to drive the ear. When Amanda was driving, she lost control of the vehicle when negotiating a curve. At this point, Vaknin, who was seated next to her, attempted to grab the steering wheel in order to control the vehicle, but was unsuccessful in preventing the car from leaving the road and crashing into a tree. As a result of that collision, Amanda sustained severe personal injuries.

Amanda and her mother brought this action against Vaknin and his father. The suit against Vaknin’s father was later dismissed without prejudice. Plaintiffs’ claim against Vaknin was based on his alleged negligent entrustment of a motor vehicle to an unqualified driver. Later, plaintiffs amended their action to include American Family, which provided uninsured-motorist coverage to Amanda and Trang.

The jury returned a verdict finding that Vaknin’s fault was a sixty percent contributing cause of plaintiffs’ injuries and Amanda’s fault was a forty percent contributing cause. The jury fixed plaintiffs’ damages at $18,864.29. In addition, it answered interrogatories finding that Vaknin was not the “operator” of the motor vehicle at the time of the accident, a response that negated liability of American Family under its uninsured-motorist policy, and also finding that Trang’s health insurer had paid $9891 toward the medical expenses that had been included in the damage award. The district court reduced the gross damage award to account for both third-party payment and contributory fault.

I. Whether the Jury Was Properly Instructed Conceminy the Term “Operator” of a Motor Vehicle as Used in the American Family Policy.

Plaintiffs argue that in instructing the jury the district court provided an improper definition of “operator” as that term was used in determining American Family’s uninsured-motorist coverage. We review the district court’s rulings on jury instructions to determine if they are a correct statement of the applicable law based on the evidence presented. Collister v. City of Council Bluffs, 584 N.W.2d 453, 454 (Iowa 1995); Johnson v. Interstate Power Co., 481 N.W.2d 310, 324 (Iowa 1992).

The uninsured-motorist provisions contained in American Family’s policy state:

We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.

In the present litigation, the action against the owner of the vehicle had been dismissed by plaintiffs. They sought to invoke uninsured-motorist benefits on their claim against Vaknin on the theory that he was the operator of the motor vehicle in which Amanda was injured.

The district court in its Instruction No. 17 defined the word “operator” in the manner in which that word is defined in Iowa Code section 321.1(48) (1999). Accordingly, the instruction defined “operator” as “every person who is in actual physical control of a motor vehicle upon a highway.” Plaintiffs urge that the definition of operator contained in Iowa Code section 321.1(48) is only intended to apply in matters governing the duties of persons operating motor vehicles on the public highway and is not applicable in insurance coverage disputes. They suggest that entirely different policies come into play in determining the meaning of “operator” for purposes of uninsured-motorist coverage and suggest that in that context that term should include persons with a right to control the vehicle who have delegated physical control to another under their supervision.

We agree with plaintiffs that caution should be exercised in applying statutory definitions to situations in which the particular statutory scheme may not be involved. Notwithstanding this cautionary approach, we are satisfied that, within the context of American Family’s uninsured-motorist coverage, the term “operator” has reference to a person having physical control of a motor vehicle. Uninsured-motorist coverage is statutorily mandated and exists in the milieu of automobile liability disputes. Consequently, we are satisfied that this word is used in both Iowa Code section 516A.1 (the statute mandating uninsured-motorist coverage) and American Family’s policy in the same sense that it is employed in the statutory law of motor vehicle regulation.

In Twogood v. American Farmers Mutual Automobile Insurance Ass’n, 229 Iowa 1133, 296 N.W. 239 (1941), we resorted to the statutory definition contained in the motor vehicle laws to determine the meaning of the word “operator” as used in an insurance policy. In considering the meaning of that word, we stated:

With reference to the use of a motor vehicle on the highway, paragraph 39 of the 1939 Code section 5000.01 defines an operator thereof as meaning “... every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway.”

Twogood, 229 Iowa at 1138, 296 N.W. at 242. We further stated in Twogood:

This does not mean that one who has general authority over a driver with respect to the destination, route, or rate of speed of the vehicle, is operating the vehicle.

Id. We adhere to this view in the present case.

The Twogood decision relied in part on a decision of the New York Court of Appeals, which applied that state’s motor vehicle statutes to define the word “operator” as used in an insurance policy exclusion. The court in that case stated:

The word “operate” is used throughout the statute as signifying a personal act in working the mechanism of a car. The driver operates the car for the owner, but the owner does not operate the car unless he drives it himself....
Obviously, the word is used in the policy in the same sense in which it is used in the Highway Law.

Witherstine v. Employers’ Liab. Assurance Corp., 235 N.Y. 168, 139 N.E. 229, 230 (1923). A similar view was expressed by the Rhode Island Supreme Court in Elgar v. National Continental/Progressive Insurance Co., 849 A.2d 324 (R.I.2004), wherein the court stated:

Elgar’s assailants were passengers in the car she was driving. They were not physically operating the taxi or any other vehicle, and did not become the de facto operators of her vehicle merely because they were directing her to a specific location.

Elgar, 849 A.2d at 327-28. The district court did not err in defining the term “operator” in Instruction No. 17.

II. Plaintiffs ’ Temporal Argument

Plaintiffs’ second argument is that it was error for the district court to phrase its interrogatory to the jury so as to only determine Vaknin’s status as an operator at the time of the accident. They urge that the court should have allowed Vaknin’s status as an operator of the vehicle at an earlier time to trigger uninsured-motorist coverage under the American Family policy. For this reason, plaintiffs assert that interrogatory No. 4 should not have read “was Yaacov Vaknin the operator of an uninsured motor vehicle at the time of the accident?” But rather, “was Yaacov Vak-nin the operator of an uninsured motor vehicle at the time of his negligence?”

We are satisfied that the district court correctly determined that the type of uninsured liability that triggers application of American Family’s coverage is operational fault causing the injury for which recovery of uninsured-motorist benefits is claimed. See Elgar, 849 A.2d at 326 (uninsured-motorist coverage requires that insured present credible evidence that his or her injury was caused by the owner or operator of an uninsured motor vehicle). That being the case, it was logical for the trial court to fix the time for the jury’s determination of operator status as the time of the accident.

III. Vaknin’s Degree of Physical Control.

Plaintiffs argue in the alternative that, if actual physical control is the determining factor in deciding whether Vaknin was an operator of the motor vehicle, he exercised that degree of control when he seized the wheel of the vehicle. Based on this premise, they urge that the jury’s finding that he did not have control is not supported by substantial evidence. Plaintiffs rely in part on the decision of the Washington court in North Pacific Insurance Co. v. Christensen, 143 Wash.2d 43, 17 P.3d 596 (2001). There, a passenger seized control of the wheel of a motor vehicle that the driver was properly operating and through that action diverted the course of travel across the centerline causing a collision. The Washington court in the Christensen case concluded that,

[wjhen Chase suddenly grabbed the steering wheel, he became the operator of the vehicle in which he had been a passenger. Although Christensen was sitting in the driver’s seat, he became powerless to control the car. Chase assumed control of the steering mechanism long enough to cause a collision and resulting injuries.

Christensen, 17 P.3d at 599 (footnote omitted).

Assuming without deciding that one who seizes the steering wheel of a motor vehicle and thereby causes an injury-producing accident may be considered to be an operator for uninsured-motorist purposes, we are satisfied that this is not the case if the seizing of the wheel is an effort to prevent an accident caused by faulty operation of the vehicle by the person who has been exercising the driving function. As we concluded in the prior division of this opinion, the type of uninsured liability that triggers uninsured-motorist coverage is operational fault causing the injury for which recovery of benefits is claimed.

In the present case, Vaknin’s operator status was submitted to the jury in the face of a strong argument that he was not the operator as a matter of law based on the undisputed evidence. Assuming that the evidence of wheel grabbing presented a jury question on his status, the jury’s verdict resolves the issue. To overturn that verdict, plaintiffs would have to show that Vaknin was the operator as a matter of law, and that was clearly not the case.

IV. The Reduction of Damages Based on Third-Party Payment.

In response to Iowa Code section 668.14, the district court submitted interrogatories requiring the jury to find whether there had been third-party payment of medical expenses by Trang’s medical and hospital insurer that was included in the damages awarded and the amount of such third-party payment. As a result of the jury’s answers to these interrogatories, the district court reduced the damages awarded by the amount of the third-party payment. Plaintiffs argue that the district court lacked authority to make this reduction of the jury’s award because there has been no finding that the insurance carrier making the third-party payment is not subrogated to plaintiffs’ recovery. The ap-pellees urge that plaintiffs have failed to preserve error on this issue because they failed to object to the interrogatories that were given to the jury.

In considering the matter of error preservation, we take some guidance from the situation that was presented in Six v. American Family Mutual Insurance Co., 558 N.W.2d 205 (Iowa 1997). That case involved a tortfeasor’s attempt to recover from a liability insurer that was alleged to have wrongly refused to defend and indemnify the tortfeasor against a personal injury claim. The jury found that the insurer’s liability coverage required it to indemnify the tortfeasor. A dispute was presented as to whether a settlement that had been negotiated by the tortfeasor was reasonable. An interrogatory was submitted to the jury asking it to determine if the settlement was reasonable, which it answered in the negative. No verdict form was given the jury to determine what a reasonable settlement amount would have been.

The insured tortfeasor in the Six case had not objected to the interrogatories submitted to the jury, but we concluded that he adequately preserved the issue of an incomplete verdict by means of a post-trial motion. In ruling on that posttrial motion, the district court in Six concluded that the jury’s response had resolved the case in a manner that denied any recovery to the plaintiff.

In our review of this ruling, we stated, “We are convinced that, if coverage exists, an insurer that declines to defend a claim continues to be liable to hold its insured harmless for that portion of the stipulated judgment that represents a reasonable and prudent settlement.” Six, 558 N.W.2d at 207. We then referred to the provisions of Iowa Rule of Civil Procedure 205 (now Iowa R. Civ. P. 1.933), which provides that, if the special verdicts submitted to the jury are incomplete as to an essential element, the trial court, following the jury’s discharge, may render any essential factual finding that has been omitted. Six, 558 N.W.2d at 207 (citing P.H.C.C.C., Inc. v. Johnston, 340 N.W.2d 774, 777 (Iowa 1983)). Based on the provisions of that rule, we remanded the case to the district court to make a factual finding, as in a jury-waived adjudication, as to what a reasonable settlement amount would have been. Id.

Plaintiffs’ situation in the present case is similar to that presented in Six because an essential factual issue was not included in the special verdicts presented to the jury. Our cases applying Iowa Code section 668.14 make it clear that plaintiffs are to be protected against a double reduction of their award that would result from a reduction based on third-party payments when the third-party payor remains subro-gated to the remaining recovery. Kuta v. Newberg, 600 N.W.2d 280, 290 (Iowa 1999); Schonberger v. Roberts, 456 N.W.2d 201, 203 (Iowa 1990). To prevent this from occurring in the present case, the jury should have been required to render a finding as to whether the third-party pay- or had a subrogation right. Because the issue was not submitted to the jury, an essential factual issue was missing from the special verdicts that the jury returned.

Rule 1.933 provides a method to remedy that omission by having the court render a finding of fact on the subrogation issue based on the existing record. To accomplish that result, we vacate the judgment against Vaknin and remand the case to the district court with instructions to render a finding as to whether a subrogation right existed in the third-party payor. The court shall then enter a new judgment based on the jury’s special verdicts as supplemented by its own finding on the subrogation issue.

The judgment in favor of American Family is affirmed. The judgment against Vaknin is vacated and the case remanded for further proceedings in accordance with our instructions. Costs are assessed seventy-five percent to appellants and twenty-five percent to Vaknin.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

      . Reliance was also placed on the statutory definition of "operator" as contained in the motor vehicle statutes in a decision this court rendered in a boat operator case. Pfeiffer v. Weiland, 226 N.W.2d 218 (Iowa 1975), presented the question of whether a water skier trailing behind a boat and giving commands concerning its operation could be considered an operator for purposes of Iowa Code section 106.18 (1966), which rendered the "operator” of a boat liable for its negligent operation. Relying on the statutory definition of operator contained in the statutory predecessor of Iowa Code section 321.1(48), we held that to be an operator of a boat one must have actual physical control of the vessel.


author: GILDEA, Justice. PAGE, Justice

text:
    David H. TOTH, Appellant, v. Gerald ARASON, Individually, and d/b/a Arason’s Body Shop, Respondent.
    No. A04-769.
    Supreme Court of Minnesota.
    Oct. 12, 2006.

      Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, Lyndon F. Larsen, International Falls, MN, for Appellant.
    Steven A. Nelson, International Falls, MN, for Respondent.
   OPINION

GILDEA, Justice.

Appellant David Toth sued respondent Gerald Arason individually and d/b/a Ara-son’s Body Shop for breach of contract, deceptive trade practices, and violations of MinmStat. §§ 325F.60 (2004), and 325F.63 (2004), which are part of the Truth in Repairs Act, and Minn.Stat. § 325F.69 (2004), which is part of the Consumer Fraud Act. Toth’s claims were based on repairs Arason made to Toth’s pickup truck after the truck sustained damage in an accident. After a court trial, the district court awarded Toth damages based on Arason’s use of a radiator that was not original equipment from the manufacturer (OEM), and denied all of Toth’s other claims. The district court also ordered costs and disbursements to Arason. Toth appealed and the court of appeals reversed the award of costs to Arason and reversed and remanded for redetermination of damages with respect to the radiator and for a breach of contract claim related to peeling paint. The court of appeals affirmed in all other respects. We granted Toth’s petition for review in which he raised issues regarding the appropriate measure of damages and availability of attorney fees under the Truth in Repairs Act and the Consumer Fraud Act. We affirm.

Toth bought a new Chevrolet light-duty pickup truck in February 1997. In August 1997 the vehicle sustained significant damage in an accident. After the accident, Toth contacted his insurance company, Western National Insurance, and then contacted Arason, who towed Toth’s truck to his body shop and prepared an initial estimate based on what could be seen from a visual inspection of the truck. Arason did not indicate on the visual damage estimate whether the parts he would use to repair the truck would be OEM.

On behalf of Western, Darris Winter, an independent insurance adjuster, went to Arason’s to inspect Toth’s truck. Winter estimated the cost of repairs to the truck to be $10,042.52. In the estimate, Winter allocated $356 for a new radiator and $443.25 for a new A/C condenser.

Arason completed the repairs on the truck and submitted a final invoice to Toth, which stated that it was for “parts, labor, painting, materials to repair front of truck.” The total amount Arason charged for the work was $10,042.52, the exact amount that Winter had estimated. The invoice did not disclose that the radiator and condenser used were non-OEM parts. In fact, Arason was unable to obtain an OEM radiator and condenser, and instead ordered and installed a non-OEM radiator and condenser from Northern Factory Sales. Arason obtained the- non-OEM radiator used in Toth’s vehicle for $197.26 and the condenser for $151.66. Arason did not discount the charges for either the radiator or the condenser despite the fact that he obtained the radiator and the condenser for substantially less than the cost allotted on Winter’s estimate.

In December 1997,. Toth began to notice antifreeze leaking from the truck. Toth brought the truck to Arason, and Arason sent him to the GM dealer in International Falls. The dealer tried to identify the problem multiple times, but was unsuccessful. In February 2000, when the warranty on his truck was about to expire, Toth brought the truck back to the dealer. The dealer determined that the radiator was the source of the leak and informed Toth that he would have to have the radiator replaced. The cost to replace the leaking radiator would have been covered under the truck’s new-vehicle warranty, but because the radiator in the truck was a non-OEM radiator it was not covered under that warranty. Toth could not afford to pay to replace the radiator immediately, and did not do so until April of 2002, when he had the radiator replaced at a cost of $810.44.

Toth sued Arason individually and d/b/a Arason’s Body Shop for breach of contract, deceptive trade practices, and violations of Minn.Stat. §§ 325F.60 and 325F.63, which are part of the Truth in Repairs Act, and Minn.Stat. § 325F.69, the Consumer Fraud Act. After a 2-day bench trial, the district court awarded Toth $803.44 in damages for the replacement of the non-OEM radiator. The court denied Toth’s claims with respect to the non-OEM condenser, peeling paint, and attorney fees. The court.also awarded Arason costs and disbursements under Minn. R. Civ. P. 68. Toth appealed.

The court of appeals affirmed in part, reversed in part, and remanded for re-determination of the damages with respect to the radiator and for further proceedings on the breach of contract claim for peeling paint. Toth v. Arason, No. A04-769, 2005 WL 1216301 (Minn.App. May 17, 2005). The court of appeals held, among other things, that Toth was not entitled to attorney fees because Minn.Stat. § 8.31, subd. 3a (2004), does not apply to violations of Minn.Stat. § 325F.60 if an insurance company paid for the repairs. Toth, 2005 WL 1216301, at *6. The court held that Toth had waived any claim under section 325F.69, subdivision 1, and that, even if he had not waived the issue, Toth could not recover under section 325F.69, subdivision 1, because he failed to show that his cause of action against Arason benefited the public. Toth, 2005 WL 1216301, at *7. The court remanded the radiator damage award because it could not determine the district court’s basis for the $803.44 figure. Id. The court refused to award Toth damages for the installation of the non-OEM condenser because “Toth has not cited any authority that indicates that the cost of replacing a condenser that has not been replaced is the applicable measure of damages.” Id. at *8. The court reversed the award of costs and disbursements to Ara-son because there was no evidence that a Rule 68 settlement offer had been made. Id. at *10. We granted review and now affirm.

I

In his petition for review, Toth asked this court to examine the measure of damages applicable to a claim for violation of the Truth in Repairs Act and to decide whether he could recover his attorney fees. We do not reach these issues because, as set forth below, we find that Toth cannot maintain a cause of action under the Truth in Repairs Act.

The court of appeals held that the remedies provision in the Truth in Repairs Act was not available to Toth. See Toth, 2005 WL 1216301, at *6. This statutory construction question is one we review de novo. Hyatt v. Anoka Police Dep’t, 691 N.W.2d 824, 826 (Minn.2005). When construing statutes, if the plain language of the statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2004).

There are three provisions of the Truth in Repairs Act at issue in this case, Minn. Stat. §§ 325F.60, 325F.63, and 325F.64. Toth contends that Arason violated section 325F.60, and he argues that section 325F.63 provides for a remedy to redress this violation. Arason contends to the contrary that the remedy provision in section 325F.63 does not apply here because Toth’s insurance company paid for all of the repairs over the deductible amount. Arason relies on section 325F.64, subdivision 1, to support his argument. We examine each of the three provisions in turn.

Toth argues that Arason violated section 325F.60, subdivision 1(e), because Arason did not identify on the invoice that he had used non-OEM parts in the repair. Minnesota Statutes § 325F.60, subd. 1(e), reads in pertinent part:

Upon completion of repairs, a shop shall provide the customer with a copy of a dated invoice for the repairs performed. * * * The invoice shall contain the following information: * * * (e) a notation specifying which parts, if any, are new, used, rebuilt, reconditioned, or replated if that information is known by the shop. If parts, other than window glass, used in the repair are new parts, the invoice must indicate whether or not those parts are original equipment parts * * *.

There is no question that Arason violated section 325F.60, subdivision 1(e), when he failed to provide Toth with a written invoice or estimate noting whether the radiator and condenser were OEM parts.

Turning to section 325F.63, Toth contends this provision entitles him to bring a private cause of action for Arason’s violation of section 325F.60. Generally, a statute must provide for a private cause of action in order for an individual to have standing to sue. See State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 496 (Minn.1996). Section 325F.63, subdivision 3, states: “Any violation of sections 325F.56 to 325F.66 shall be deemed a violation of section 325F.69, subdivision 1, and the provisions of section 8.31, shall apply.” While not providing a separate private right of action, section 325F.63 could be construed to give an individual the right to bring a private cause of action for a violation of the Truth in Repairs Act through application of section 8.31.

Arason argues and the court of appeals held that section 325F.64, subdivision 1, specifically precludes Toth from relying on section 325F.63 to bring his claim. Section 325F.64, subdivision 1, provides: “Sections 325F.57 to 325F.59 and 325F.61 to 325F.66 shall not apply if an insurer or service contract company pays up to 90 percent of the charge for repairs or pays a charge for repairs above a deductible amount specified in an insurance agreement or service contract.” In other words, section 325F.64, subdivision 1, renders inoperative the only remedial provision of the statute, section 325F.63, if an insurance company has paid for the cost of repairs over the deductible amount.

The parties do not dispute that Toth’s insurer paid for the repairs to his truck, less a $250 deductible for which Toth was responsible. Section 325F.64, subdivision 1, therefore, by its plain and unambiguous terms, precludes any remedy to Toth under section 325F.63.

Notwithstanding the plain language of section 325F.64, subdivision 1, Toth argues that construing the statute to preclude his claim “produces an absurd result and one plainly at variance with the policy of the legislation as a whole.” In support of his argument, Toth points to the 1981 amendment to section 325F.64, subdivision 1, which removed section 325F.60 from the listed statutory exemptions. Act of May 8, 1981, ch. 134, § 2, 1981 Minn. Laws 404, 405. Toth argues that to construe section 325F.64 in accordance with the plain language would render the 1981 amendment meaningless. We disagree.

Toth is correct to note that we have, in the past, “look[ed] .beyond the statutory language to other indicia of legislative intent” when “the literal meaning of the words of a statute would produce an absurd result.” Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997). We have said, however, that “[w]e can disregard a statute’s plain meaning only in rare cases where the plain meaning utterly confounds a clear legislative purpose.” Weston v. McWilliams & Assocs. Inc., 716 N.W.2d 634, 639 (Minn.2006) (internal quotations omitted). This is not that rare case insofar as the remedies provision in section 325F.63 is concerned.

The legislature set out a statutory obligation in section 325F.60, subdivision 1(e), that those performing repair work must provide an accurate written description of their work. The legislature also made a judgment that those consumers who utilize insurance to pay for repairs could not litigate claims for violation of that statutory obligation. This is not an absurd result. Cf. Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities Ins. Trust, 659 N.W.2d 755, 762 (Minn.2003) (applying plain meaning of term even though it resulted “in a class of accident victims being uncompensated”).

We hold that by operation of the plain language of section 325F.64, subdivision 1, the remedy section of the Truth in Repairs Act, section 325F.63, does not apply here, and a private cause of action for damages and attorney fees under section 8.31, subdivision 3a, therefore is not available.

II

We next address Toth’s alternative argument that Arason separately violated the Consumer Fraud Act, section 325F.69, subdivision 1, entitling Toth to collect damages and attorney fees under section 8.31, subdivision 3a. The Consumer Fraud Act states:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided in section 325F.70.

Section 8.31, subdivision 3a, applies to violations of the Consumer Fraud Act.

Toth claims that, “regardless of the truth in repairs statute, Toth was entitled to proceed under § 325F.69, subd. 1,” because Arason did not inform Toth that installation of non-OEM parts would void the manufacturer’s warranty and instead told Toth that there- would be a one-year guarantee whether Arason used an OEM or non-OEM part. Arason argues that Toth first raised this claim at the appellate level. The court of appeals agreed, noting that there was “nothing in the record that indicates that Toth claimed in the district court that even if Arason did not violate Minn.Stat. § 325F.60, Arason’s statements and omissions violated Minn.Stat. § 325.69, subd. 1.” Toth, 2005 WL 1216301, at *7. The court of appeals held that because the district court did not address the claim, it would not address the claim for the first time on appeal. Id.

We agree with the court of appeals. We have said that “a reviewing court generally may consider only those issues that the record shows were presented to and considered by the trial court.” Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn.2001); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (“Nor may a party obtain review by raising the same general issue litigated below but under a different theory.”). Although the complaint generally alleges that Arason violated the Consumer Fraud Act, Toth argued his case to the district court as one stemming from Arason’s violation of section 325F.60 which, if proved, would have been deemed a violation of the Consumer Fraud Act. Toth did not argue to the district court that there was behavior separate from the violation of section 325F.60 that would also be a violation of the Consumer Fraud Act. Because this issue was not ' pressed below, we decline to address it on appeal.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent. Toth alleged a violation of the Truth in Repairs Act (the Act), which, like the Consumer Fraud Act, is a consumer protection act. See Minn. Stat. §§ 325F.57-.66, 325F.69 (2004). In my view, the Act, like the Consumer Fraud Act, “reflect[s] a clear legislative policy encouraging aggressive prosecution of statutory violations” and should be “generally very broadly construed to enhance consumer protection.” See State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 495-96 (Minn.1996). The court, however, gives the Act a narrow reading, which erodes, rather than enhances, consumer protection. Further, the court’s interpretation of the Act both contravenes the clearly expressed goal of the legislature and nullifies a legislative action.

Since its original enactment in 1978, the Act has required repair shops to provide a customer with a dated invoice for repairs. Minn.Stat. § 325F.60, subd. 1 (1980); Minn.Stat. § 325F.56, subd. 2 (1980) (defining “repairs” to mean “work performed for a total price of more than $100 and less than $2,000”). And since its original enactment the Act has required the written invoice to disclose which parts were used, rebuilt, or reconditioned. Minn.Stat. § 325F.60, subd. 1(d) (1980). But, as originally enacted, the Act did not apply at all “if an insurer or service contract company pays up to 90 percent of the charge for repairs or pays a charge for repairs above a deductible amount specified in an insurance agreement or service contract.” Minn.Stat. § 325F.64, subd. 1 (1980). In other words, as originally enacted, when an insurance company was paying for repairs the vehicle owner was not entitled to even an invoice for the repair work.

In 1981, the legislature amended the Act in several ways significant to this case. First, the legislature created a new definition of “repairs” specific to section 325F.60, the invoice requirement. Under the 1981 amendment, “repair” for purposes of the invoice requirement was defined to include, among other things, “work of any value performed under a manufacturer’s warranty, a service contract, or an insurance policy.” Act of May 8, 1981, ch. 134, § 1, 1981 Minn. Laws 404, 404. Thus, under the 1981 amendment, a customer is entitled to a written invoice regardless of who pays for the repairs and regardless of how much the repairs cost. More to the point, the 1981 amendment specifically created the right of a customer to a written invoice for repairs that are covered by insurance. Second, because the Act as originally passed exempted insured repairs from all of its requirements, the legislature amended section 325F.64, the exemption section, to carve out section 325F.60, the invoice requirement. Act of May 8,1981, ch. 134, § 2,1981 Minn. Laws at 405. Whereas section 325F.64 previously exempted all of the Act if an insurer paid for repairs, under the 1981 amendment section 325F.60, the invoice requirement, applies to insured repairs.

But the legislature did not amend section 325F.63, the remedies provision of the Act. That section continues to provide that any violation of the Act “shall be deemed a violation of section 325F.69, subdivision 1, and the provisions of section 8.31, shall apply.” Minn.Stat. § 325F.63, subd. 3 (2004) (emphasis added). Section 325F.69 defines consumer fraud. Section 8.31, subdivision 3a (2004), allows a person injured by a violation of specified consumer protection laws to bring a civil action for damages and to recover costs of investigation and attorney fees. But section 8.31 also authorizes the attorney general to investigate violations of unlawful business practices, gives the attorney general the power to obtain documents and conduct discovery of unlawful business practices without the commencement of litigation, and authorizes the courts to enjoin violations of the law and impose civil penalties. Minn.Stat. § 8.31, subds. 1, 2, and 3 (2004).

The requirement that the customer be provided with a written invoice was amended in 1987 to add the requirement at issue here, namely, that the invoice also disclose whether any new parts used in repairs are or are not original equipment parts. Act of May 6, 1987, ch. 64, § 4, 1987 Minn. Laws 106, 116. Significantly, the same legislation that amended section 325F.60, the invoice requirement, made two other changes to Minnesota’s insurance laws. First, the 1987 legislation also amended Minn.Stat. § 72A.20, subd. 12a(f)(7) (1988) (now Minn.Stat. § 72A.201, subd. 6 (2004)), to make it an unfair settlement practice for an automobile insurer to require, as a condition of payment of a claim, that repairs to any damaged vehicle be made using anything but original equipment parts. Act of May 6, 1987, ch. 64 § 1, 1987 Minn. Laws at 113. And second, the 1987 legislation amended Minn.Stat. § 72B.091, subd. 2 (2004), to require that an insurance adjuster’s appraisal of a damaged vehicle disclose to the vehicle owner “any parts to be used, other than window glass, which are not original equipment parts * * Act of May 6, 1987, ch. 64 § 2,1987 Minn. Laws at 115.

These are important consumer protections not to be lightly discarded. The requirement of a written invoice specifically detailing whether new parts used in repairs are original equipment parts is not only a check on the repair shop, but also a check on automobile insurers’ claims settlement practices. The written invoice from the repair shop is the only evidence the consumer has as to whether the insurance company has in fact paid for original equipment parts, as the statute requires. And, a written invoice in the hands of the vehicle owner that clearly discloses whether original equipment parts were used in the repairs discourages an insurance adjuster from colluding with a repair shop to bill the insurance company for more expensive original equipment parts but use cheaper after-market parts in making the repairs and split the difference.

The court holds that, despite the amendment of section 325F.60, the invoice requirement, to specifically require that customers receive a written invoice even if insurance pays for the repairs, there is no remedy available to those customers if the written invoice is not provided or, as here, the written invoice is inaccurate or incomplete. Not only does the court conclude there is no remedy available to customers, but the effect of the court’s decision thwarts the purpose of the 1987 insurance reform legislation. Because the court’s decision removes violations of the invoice requirement from the scope of section 8.31, it bars the attorney general from investigating violations of the invoice requirement in the case of repairs covered by insurance. It similarly eliminates the power of the courts to enjoin violations of the invoice requirement and to award civil penalties for such violations. It also deprives vehicle owners of the information they need to resist unfair settlement practices by insurers. And it eliminates the paper trail necessary to detect kickbacks from repair shops to insurance adjusters. With the legislature having specifically created these protections for consumers by means of the written invoice requirement, I cannot, accept that the legislature intended its actions to have no “teeth” by not providing a remedy for violations of the invoice requirement.

But that is what the court concludes. To reach this conclusion the court relies on what it considers to be the plain language of section 325F.64, the exemption provision. Section 325F.64, subdivision 1, provides:

Sections 325F.57 to 325F.59 and 325F.61 to 325F.66 shall not apply if an insurer or service contract company pays up to 90 percent of the charge for repairs or pays a charge for repairs above a deductible amount specified in an insurance agreement or service contract.

The court concludes that under the plain language of section 325F.64, the exemption provision, the remedies available under section 325F.63 — including the authority of the attorney general to investigate and prosecute violations — are not available if the repairs are paid by insurance. But under the plain language of section 325F.64, section 325F.64 itself — the exemption provision — does not apply to insured repairs: “Sections 325F.57 to 325F.59 and 325F.61 to 325F.66 shall not apply if an insurer or service contract company pays * * *.” (Emphasis added.)

I would therefore conclude that the language of the statute is not unambiguous, and we must construe the statute to effectuate the intent of the legislature. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). In doing so, we are to be guided by several principles. First, in ascertaining the legislature’s intent, we consider the occasion and necessity for the law, the mischief to be remedied by it, the object to be attained by it, the circumstances of its enactment, and the consequences of a particular interpretation. Hersh Props., LLC v. McDonald’s Corp., 588 N.W.2d 728, 736 (Minn.1999). Second, the statute should be construed to make it effective, rather than to nullify it. Sandy v. Walter Butler Shipbuilders, Inc., 221 Minn. 215, 223, 21 N.W.2d 612, 616 (1946). Third, we should construe the statute to avoid absurd or unjust consequences. Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn.2001). Finally, remedial statutes are to be liberally construed. State v. Indus. Tool & Die Works, Inc., 220 Minn. 591, 604, 21 N.W.2d 31, 38 (Minn.1945).

Applying these principles, I would hold that the 1981 amendment removed section 325F.60, the invoice requirement, from section 325F.64, the exemption provision, for all purposes, and therefore section 325F.63, which provides that “any violation” of the Act is a violation of section 325F.69, subdivision 1, applies to any violation of section 325F.60, the invoice requirement. The occasion and necessity for the law and the mischief to be remedied by the Act as amended in 1981 and 1987 appear to have been in part the practice of automobile insurers in conditioning payment of claims on the use of other than original equipment parts, which as this case demonstrates have the potential to void the manufacturer’s warranty on the damaged vehicle. The objects to be attained by the Act as amended are enforcement of the statutory prohibition against unfair settlement practices and deterrence of insurance fraud by putting in the hands of the consumer an itemized invoice from the repair shop showing whether or not the insurance company paid for original equipment parts. This interpretation is in accordance with the legislature’s clearly expressed goal of requiring that customers receive a written invoice when repairs are paid for by insurance. It also gives effect to the legislature’s 1987 amendment by providing a remedy for any violation of section 325F.60 and concomitant unfair settlement practices by the automobile insurer. Finally, it promotes our goal of construing consumer protection statutes broadly to enhance consumer protection.

      . An OEM part is one that is supplied by the manufacturer, in this case General Motors, and meets original equipment standards. A non-OEM, or aftermarket, part is a part that is supplied by someone other than the original manufacturer of the vehicle. The parties also occasionally use the term "OEM replacement part.” Toth asserts that an OEM replacement part "is a part supplied by the manufacturer that is to the original equipment standards,” in other words an OEM part. At trial, various mechanics confirmed that the term OEM replacement part generally means the part is an OEM part. Arason, however, asserted that an OEM replacement part is synonymous with a non-OEM part.

      . Toth argued that he was entitled to damages for defects in connection with the painting Arason did on his truck. The issue at trial was whether the defects in the paint were due to an error in applying the clear coat during Arason’s repair of the truck, or whether the paint peeling was due to hail damage. The court of appeals remanded the case on the issue because "the district court’s findings do not support its conclusion that Toth has been compensated for the peeling.” Toth v. Ara-son, No. A04-769, 2005 WL 1216301, at *10 (Minn.App. May 17, 2005). The parties did not appeal any issues involving the paint defects, and as such any facts and issues involving paint are not before us.

      . The district court awarded Toth $803.44 in damages. Arason did not appeal this award, and so this award is not before us.

      . The parties do not dispute that Arason failed to provide Toth with an invoice identifying the radiator or the condenser as either OEM or non-OEM, and Arason admits a violation of section 325F.60, subdivision 1(e), with respect to the radiator. Arason nonetheless argues that he did not violate section 325F.60, subdivision 1(e), with respect to the condenser because the condenser that he installed on the vehicle was the same type of condenser that he would have obtained through the dealer. This argument is without merit, because section 325F.60, subdivision 1(e), specifically states: "If parts, * * * used in the repair are new parts, the invoice must indicate whether or not those parts are original equipment parts.” (Emphasis added.) Arason’s statutory obligation was to disclose the OEM status of the parts regardless of whether they were or were not OEM parts. Therefore, we conclude that Arason violated section 325F.60, subdivision 1(e), with respect to both the radiator and the condenser.

      . Minnesota Statutes § 8.31, súbd. 3a (2004), grants individuals a private cause of action:
      In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court.

      . Inasmuch as section 325F.64 falls between sections 325.61 and 325.66, the dissent notes that section 325F.64 could be read to exempt itself from operation when an insurance company pays up to 90 percent of the repair costs. This reading would also preclude exemption of the remedies provision in section 325F.63. Thus, the dissent suggests there is an ambiguity here that allows us to resort to canons of statutory construction and legislative history. We do not read section 325F.64 to create such an ambiguity for two reasons. First, when exemption provisions like section 325F.64 are utilized, these provisions often are placed, within a sequence of sections that, by the dissent's reading, could render the exemption provisions a nullity. See, e.g., Minn.Stat. § 141.35 (“Sections 141.21 to 141.35 shall not apply to the following ***”); Minn.Stat. § 171.39(a) ("The provisions of sections 171.33 to 171.41 do not apply to * * * ”); Minn.Stat. § 325E.19 ("Sections 325E.169 to 325E.201 do not apply to * * * "); Minn.Stat. § 325H.02, subd. 2 ("Sections 325H.01 to 325H.10 do not apply to * * * ”); Minn.Stat. § 26.3341 ("Sections 326.32 to 326.339 do not apply to * * * ”). Despite this apparent legislative drafting practice, no decision has been called to our attention that construes the legislative decisions reflected in these exemption provisions a-nullity or finds them ambiguous. Second, the. question we are called on to answer in this case involves a statutory right created by the legislature. Whatever common law rights Toth has in the absence of the Truth in Repairs Act are unaffected by the decision in this case. The decision here simply "acts as a limit on the new statutory rights created by the” Truth in Repairs Act. See Mut. Serv. Cas. Ins., 659 N.W.2d at 762 (construing Minnesota's No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-65B.71 (2004)). Because "[t]his court did not have authority to create these rights[,] * * * likewise, it does not have authority to extend them beyond those provided by the legislature.” Id. Our decision to adhere to the plain language used in section 325F.64 to preclude a statutory remedy confirms this principle of judicial restraint.

      . Because we hold that the plain language of section 325F.64, subdivision 1, prevents Toth from maintaining a private cause of action under section 325F.63 for Arason’s violation of section 325F.60, subdivision 1(e), we need not address Toth’s arguments regarding the public benefit requirement for bringing an action under section 8.31, subdivision 3a, or the measure of damages applicable for Ara-son’s use of non-OEM parts.

      . In his amended complaint, Toth alleged very generally that Arason violated the Deceptive Trade Practices Act; Toth did not, however, raise Minn.Stat. § 325D.45 (2004) before either the court of appeals or this court. Accordingly, we express no opinion on the merits of such a claim. See In re Olson, 648 N.W.2d 226, 228 (Minn.2002) ("It is axiomatic that issues not ‘argued’ in the briefs are deemed waived on appeal.").

      . The court suggests that, even without the ability to enforce the written invoice requirement under section 8.31, Toth still has ”[w]hatever common law rights Toth has in the absence of the Truth in Repairs Act.” Under the common law, it would appear that Toth will recover no more than $803.44. The comparison of those rights, whatever they may be, to Toth’s rights under section 8.31 only illustrates that this is precisely the type of case — one involving clear consumer fraud and small monetary damages — that the private attorney general provision, section 8.31, subdivision 3a, was designed to make economically possible for private plaintiffs to prosecute and for private attorneys to take.

      . The court also relies on our earlier decision, Mutual Seivice Casualty Insurance Co. v. League of Minnesota Cities Insurance Trust, 659 N.W.2d 755 (Minn.2003), in which we held that a pedestrian struck by a police car was not entitled to benefits under Minnesota’s No-Fault Automobile Insurance Act, Minn. Stat. §§ 65B.41-71 (2004), because of an obscure provision in the definition of "motor vehicle” that required the car to be registered. Because of another obscure provision in Minn.Stat. § 168.012, subd. 1(b) (2004), patrol cars are not required to be registered or display numbered license plates.
      Nowhere in League of Minnesota Cities Insurance did we suggest that, in drafting either the No-Fault Act or the list of motor vehicles required to be registered, the legislature had in mind whether a pedestrian struck by a marked police car should be entitled to no-fault benefits. In contrast, in this case, the Act was amended for the specific purpose of requiring that customers receive certain information about their insured repairs in order to discourage insurance fraud and unfair claim settlement practices. It is unreasonable to assume that, having done so, the legislature would then render the requirement a nullity by providing no remedy for its violation. The ambiguity in the Act after its amendment is evidence enough that the legislature intended to provide for such a remedy.