author: TERNUS, Justice.

text:
    Raymond C. PEXA, Appellant, v. AUTO OWNERS INSURANCE COMPANY, Appellee.
    No. 03-1308.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      Frederick G. White, Waterloo, and Wallace D. Parrish, Waterloo, for appellant.
    Timothy W. Hamann of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.
   TERNUS, Justice.

The plaintiff, Raymond Pexa, sued the appellant, Auto Owners Insurance Company, for ' underinsured motorist benefits. After the jury returned a verdict finding Pexa’s damages to be less than the amount previously paid by the underinsured tort-feasor, the district court entered judgment in favor of the defendant. Pexa appeals, claiming error in various evidentiary rulings made by the district court, error in the court’s instructions to the jury, and error in the trial court’s denial of Pexa’s motion for new trial. We affirm.

I. Background Facts and Proceedings.

The plaintiff was injured in an automobile accident with an intoxicated driver on August 17, 1999. The other driver, Michael Wilson, was at fault. After the collision, Pexa had to be extricated from his vehicle; he was then transported to the hospital. When he was seen in the emergency room, the plaintiff, who was seventy-seven years old, was somewhat confused and was observed to have bruises on his forehead and a small laceration on his nose. Subsequent tests revealed Pexa had a nondisplaced pelvic fracture, which was treated with pain medication. Due to the plaintiffs hypotension, he was initially admitted to the intensive care unit. Additional tests were conducted to rule out any internal bleeding. Six days later his condition had stabilized and he was transferred to the skilled nursing facility for physical therapy and further monitoring. He had quite a lot of pain at first and was slow in regaining his strength. Pexa was eventually discharged on September 21, 1999, using a cane. In all, he spent thirty-four days in the hospital.

Pexa’s medical bills totaled $41,544, which were satisfied by his health insurer and Medicare benefits. The actual amount paid by the insurer and the Medicare program, however, was only $15,950.29, due to contractual agreements between the pay-ors and the medical care providers. The difference between the billed amount and the amount paid was written off by the hospital and other providers.

Pexa settled his personal injury claim against Wilson, for the limits of Wilson’s liability coverage, $100,000. Pexa’s automobile insurer, Auto Owners, consented to the settlement.

Pexa then brought the present action against Auto Owners to recover benefits under his underinsured motorist (UIM) coverage. This coverage, which carried a $100,000 limit, provided:

We will pay compensatory damages any person is legally entitled to recover from the owner or operator of an underin-sured automobile because of bodily injury sustained when occupying or getting into or out of an automobile that is covered by SECTION II — LIABILITY COVERAGE of the policy.

The policy limited recovery under the UIM coverage for any one occurrence to

[t]he amount of compensatory damages because of or arising out of bodily injury to such injured person that are not recovered from the liability bond(s) or insurance policy(s) applying to the owner and operator of the underinsured automobile because such bond(s) or policy(s) has been exhausted by the payment of judgments or settlements.

There was no dispute between the parties that pursuant to these contractual provisions, Auto Owners was obligated to pay Pexa the amount of compensatory damages Pexa was legally entitled to recover from the tortfeasor, but only to the extent those damages exceeded the $100,000 settlement already paid by the tortfeasor’s liability insurer and subject to Auto Owner’s policy limit of $100,000. Although Auto Owners - admitted the tortfeasor’s liability for the accident, it contended Pexa was not entitled to any UIM benefits because (1) Pexa’s damages did not exceed $100,000, and (2) not all of Pexa’s alleged damages were proximately caused by the August 1999 accident.

In response to motions in limine filed by the parties, the district court made several pretrial evidentiary rulings. The court partially sustained the defendant’s motions in limine and excluded any evidence of (1) the amount or type of insurance coverage provided by Auto Owners to Pexa, (2) the details of Pexa’s settlement with the un-derinsured motorist, and (3) the tortfea-sor’s intoxication. The court also addressed Auto Owner’s motion to prohibit evidence of the dollar amount of medical expenses billed by the health care providers. Rejecting this request, the court ruled the amount of the medical bills could be disclosed to the jury, but the plaintiffs recovery for medical expenses would be limited to the amount actually paid to the providers. The court also denied a motion in limine filed by Pexa, who sought to exclude any evidence of his history of prostate and bladder cancer.

The case proceeded to trial before a jury. Both parties made appropriate objections and offers of proof to preserve the issues raised in the motions in limine. The trial court did not alter its previous rulings. Prior to submitting the case to the jury, the court rejected the plaintiffs requested instructions that would have informed the jury that the plaintiff sought to recover UIM benefits in excess of the amount paid by the underinsured motorist, that the sum paid by the underinsured motorist would be deducted. from the jury’s verdict, and that the limit of the plaintiffs UIM coverage was $100,000.

The case was submitted to the jury- on a special verdict form that required the jury to make two factual findings. See Iowa R. Civ. P. 1.933 (providing for submission on special verdict). First, the jury was asked whether “the plaintiff proved damages proximately caused by the accident of August 17, 1999,” to which it answered “yes.” Then the jury was asked - to state the amount of such damages in five separate categories. The court had previously entered the sum of $15,950.39 on the line provided for past medical expenses. The jury completed the remainder of the special verdict, awarding $12,300 for past loss of use of body, $12,300 for past pain and suffering, nothing for future loss of use of body, and nothing for future pain and suffering. (Pexa did not claim future medical care, so this item of damage was not submitted to the jury.) The sums entered for each item of damage added up to $40,550.39. Based on these factual findings, the court then determined that Pexa was not entitled to recover under the UIM coverage of his policy and, accordingly, entered judgment in favor of Auto Owners.

After Pexa’s posttrial motions were overruled, he filed this appeal. Pexa claims reversible error in several particulars: (1) the court erred in limiting his maximum recovery for medical expenses to the amount actually paid for medical care; (2) the court abused its discretion in admitting evidence of the plaintiffs cancer-related health problems; (3) the court abused its discretion in refusing to allow evidence that the tortfeasor was intoxicated at the time of the accident; (4) the court abused its discretion in refusing to allow evidence of the underlying insurance contract, including the amount of UIM coverage and the fact the sum previously paid by the tortfeasor would be deducted from the amount of damages found by the jury; and (5) the court abused its discretion in failing to grant a new trial based upon the eviden-tiary and instructional errors noted and the inadequacy of the damages found by the jury. We separately address each issue.

II. Recovery of Medical Expenses.

The district court made a pretrial ruling that Pexa’s recovery for his past medical expenses would be limited to the amount paid to his health care providers. The court stated, however, that the plaintiff could still introduce evidence of the billed amount because this figure was probative of the extent of his injuries. (Auto Owners had agreed the jury would not be told that Pexa’s health insurer and Medicare had paid for'his medical care.) In line with the court’s pretrial ruling, the jury was instructed that in determining the amount of Pexa’s damages, it should consider, among other items,

[t]he reasonable value of necessary hospital charges, doctor charges and prescriptions from the date of injury to the present time. It is stipulated that the total amount of these bills is $41,544.34 and that, due to adjustments, the amount the plaintiff may recover for this item is $15,950.39.

In addition, the court entered the figure of $15,950.39 on the special verdict form in the blank provided for past medical expense.

The plaintiff claims the court erred in limiting his recovery to the amount paid for medical services rendered to him and in instructing the jury accordingly. Whether a plaintiff may recover more than the amount actually paid for medical care is a legal question. Therefore, we review the court’s ruling for correction of errors of law.. See In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000) (reviewing ruling based on legal question for correction of errors of law).

We first address the plaintiffs contention that the court’s instruction violated Iowa’s collateral source rule. The collateral source rule is a common law rule of evidence that bars evidence of compensation received by an injured party from a collateral source. Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990). The rule prevents the jury from reducing the tortfeasor’s obligation to make full restitution for the injuries caused by the tortfea-sor’s negligence. Id. Although this rule has been modified by statute, see Iowa Code § 668.14 (1999), it continues to preclude evidence of payments made pursuant to any federal program for an injured person’s actual economic losses, see id. § 668.14(1).

We do not think this rule is implicated in the present case because the court did not reduce the plaintiffs recovery by the amounts paid by a collateral source; rather, the court limited the plaintiffs recovery to those amounts. A proper calculation of the plaintiffs medical expenses must precede a determination of their re-coverability; only the latter issue implicates the collateral source rule. Thus, the pertinent question here is not whether there has been an inappropriate offset to the plaintiffs economic loss, but instead whether the court’s rulings and instructions improperly limited the evidence and incorrectly calculated that loss. To answer this question, we must consider the rules governing the measurement and proof of an injured person’s medical expenses.

An injured plaintiff may recover only the reasonable and necessary costs of medical care. See Stanley v. State, 197 N.W.2d 599, 606 (Iowa 1972). Therefore, the plaintiff has the burden to prove the reasonable value of the services rendered. See id.; Ege v. Born, 212 Iowa 1138, 1153, 236 N.W. 75, 82 (1931). The reasonable value of medical services can be shown by evidence of the amount paid for such services or through the testimony of a qualified expert witness. Stanley, 197 N.W.2d at 606; Arnold v. Ft. Dodge, Des Moines & S. R.R., 186 Iowa 538, 547, 173 N.W. 252, 255 (1919). The amount charged, standing alone, is not evidence of the reasonable and fair value of the services rendered. Stanley, 197 N.W.2d at 606-07; Arnold, 186 Iowa at 547, 173 N.W. at 255. The billed amount is relevant only if that figure was paid or an expert witness has testified to the reasonableness of the charges. Arnold, 186 Iowa at 547, 173 N.W. at 255. We have consistently held that evidence of the amount charged will not, in the absence of proof of the reasonableness of the billed sum, support recovery of medical expenses. Stanley, 197 N.W.2d at 606-07; Ege, 212 Iowa at 1151-52, 236 N.W. at 82; Arnold, 186 Iowa at 547, 173 N.W. at 255. This court has also stated that the jury is not bound by the testimony of an expert with respect to the reasonable value of medical services, but “may use and be guided by their own judgment in such matters.” Ege, 212 Iowa at 1153, 236 N.W. at 82.

With these principles in mind, we conclude the trial court erred in limiting the plaintiffs proof of the reasonable value of his medical expenses to the amount paid to and accepted by the medical providers. Counsel for Auto Owners candidly acknowledged at oral argument that he had agreed to stipulate that a particular witness, if called at trial, would testify that the charges of the hospital and other providers were fair and reasonable. Had such testimony been permitted, the plaintiff would have provided an adequate evi-dentiary basis for the jury to award the billed charges to compensate Pexa for past medical expenses.

We reject the insurer’s contention that an injured party’s recovery for past medical services should be limited to the amount actually paid for medical services. This position is contrary to the long-standing principle that such damages are measured by the reasonable value of medical services, and the amount paid is but one form of probative evidence on this issue. In addition, this argument fails to account for the possibility that medical charges may be compromised for reasons other, than the unreasonableness of the billed amount.

Although we conclude the trial court erred, reversal is not required unless the plaintiff was prejudiced by this error. State v. Hartsfield, 681 N.W.2d 626, 633 (Iowa 2004). At first blush, prejudice appears inevitable. Pexa was deprived of the opportunity to have his damages for medical care set at $41,544.34, rather than $15,950.39. Yet had he been awarded this additional sum, the total amount of his compensatory damages would still have been less than $100,000, the amount he had recovered from the tortfeasor. Thus, even under these circumstances, Pexa would not have been entitled to any UIM benefits. Therefore, he was not prejudiced by losing the opportunity to have- a greater sum awarded for his medical expenses.

The plaintiff asserts another basis for prejudice, however. He claims the trial court, by limiting the amount he could recover for medical expenses, “effectively limited the potential for a much greater verdict on other items of damage.” His theory is that a plaintiffs medical bills reflect the severity of the plaintiffs injuries. One flaw in this argument is that the relevant fact in the assessment of damages is the reasonable and necessary cost of medical care, which may or may not be the same as the medical bills. See Stanley, 197 N.W.2d at 606. As we discussed above, only when the charged amounts have been paid or an expert testifies they are fair and reasonable do the medical bills take on any probative value.

Dúe to the parties’ anticipated stipulation, we can safely assume in this case that had the court not restricted the plaintiffs recovery for past medical care, there would have been expert testimony that the plaintiffs medical bills were fair and reasonable so as to support admission of the bills into evidence. Nonetheless, the jury may not have accepted the charged amounts as the reasonable value of the medical services in view of the fact the medical providers accepted a much smaller sum in satisfaction of those bills. Therefore, had the court properly submitted this issue, the plaintiff would not necessarily have been better off. In fact, we think the instruction given to the jury was actually more supportive of the plaintiffs contention that his medical expenses reflected the severe nature of his injuries than a proper submission of this issue would have been.

The jury was instructed “the total amount of [the plaintiffs medical] bills is $41,544.34 and that, due to adjustments, the amount the plaintiff may recover for this item is $15,950.39.” Thus, the jury was told unequivocally that the plaintiff had medical expenses of $41,544.34. So, the plaintiff could easily have argued that his high medical expenses demonstrated how extensive his injuries were, the precise argument he claims he was deprived of making. Furthermore, the jury was not told the reduced sum the plaintiff was permitted to recover was the amount actually accepted by the health care providers in satisfaction of their charges. Consequently, the plaintiff was not faced with an argument that the amount charged was not the fair and reasonable cost of Pexa’s medical care. In other words, Pexa had the advantage of being able to use the bills to support his other claims of damage— unchallenged, an advantage he would not have had if the court had properly allowed the jury to determine whether the amount charged was the fair and reasonable value of these services or the smaller sum actually paid. Under these circumstances, Pexa was not prejudiced. Therefore, the trial court’s error in limiting the plaintiffs recovery for past medical care does not warrant reversal.

III. Evidence of Other Health Problems.

Over the plaintiffs objection, the trial court permitted evidence that Pexa was diagnosed with an aggressive form of prostate cancer in 1997, two years prior to the accident, and that he subsequently underwent hormone therapy and radiation treatment. Evidence that Pexa was undergoing treatment for this condition at the time of the 1999 accident was also allowed. In addition, the court admitted evidence that Pexa was diagnosed with an aggressive form of bladder cancer two years after the accident, requiring hospitalization and surgical treatment. Pexa’s treating physician was allowed to testify that several of the cancer therapies and treatments caused discomfort and had other disagreeable side effects.

Pexa objected to this evidence on the grounds of relevancy. He also argued the prejudicial effect of the evidence outweighed any probative value it might have. We review for an abuse of discretion. Spahr v. Kriegel, 617 N.W.2d 914, 917 (Iowa 2000).

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401. The plaintiff contends the cancer-related evidence was not relevant because he did not claim the 1999 accident contributed in any way to his cancer and he did not seek to recover any of the medical expenses associated with this condition. The trial court ruled the challenged evidence was probative of Pexa’s damages, and we agree.

Pexa sought past and future damages for loss of use of body and for pain and suffering. One component of pain and suffering is loss of enjoyment of life. See Poyzer v. McGraw, 360 N.W.2d 748, 753 (Iowa 1985). Evidence concerning other medical conditions that have and will impact Pexa’s physical and mental well-being and his ability to enjoy life are clearly relevant to the plaintiffs damage claims.

We also reject the plaintiffs assertion the prejudicial effect of this evidence outweighed its probative value. The trial court has discretion to exclude relevant evidence when “its probative value is substantially outweighed by the danger of unfair prejudice.” Iowa R. Evid. 5.403 (emphasis added); see 2 Joseph M. McLaughlin et al, Weinstein’s Federal Evidence § 403.04[l][a], at 403-33 (2d ed. 2004) (“Virtually all evidence is prejudicial to one party or another. To justify exclusion under Rule 403, the prejudice must be unfair.”) [hereinafter “Weinstein’s Federal Evidence”]. “Unfair prejudice arises when the evidence prompts the jury to make a decision on an improper basis, often an emotional one.” Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). The adverse effect of relevant evidence due to its probative value is not unfair prejudice. See 1 John W. Strong et al., McCormick on Evidence § 185, at 645 (5th ed. 1999). (stating prejudice “does not simply mean damage to the opponent’s cause — for that can be a sign of probative value, not prejudice,” and noting prejudice arises “from facts that arouse the jury’s hostility or sympathy for one side without regard to the probative value of the evidence” (emphasis added)).

Pexa has not identified any unfair prejudice resulting from the admission of evidence relating to his cancer conditions and neither have we. While this evidence is prejudicial in the sense the jury might conclude the impact of the plaintiffs accident related injuries was negligible in view of the much more serious health problems from which the plaintiff suffered, the jury’s use of the evidence for this purpose is not improper or unfair. We conclude the trial court did not abuse its discretion in admitting evidence relating to the plaintiffs cancer, his treatment for this disease, and its impact on his general well-being.

IV. Evidence of the Tortfeasor’s Intoxication.

Pexa claimed at trial that after the 1999 collision, he suffered from a fear of being involved in another accident with an intoxicated driver. He asserted evidence of the tortfeasor’s intoxication was relevant to this damage claim. On appeal, he also claims the district court’s exclusion of this evidence was contrary to this court’s holding in Waits. In Waits, we held evidence of how the accident happened was relevant on the question of whether the plaintiff was injured in the accident, as well as the nature and extent of any such injuries. 572 N.W.2d at 575.

The trial court excluded any evidence of the tortfeasor’s intoxication, concluding this fact was not “relevant to the injuries suffered by [the] plaintiff’ and any probative value of this evidence was outweighed by its prejudicial effect. The court specifically informed the plaintiff, however, that its ruling would not preclude evidence that the plaintiff suffered from a fear of being involved in another automobile accident. We review this ruling for an abuse of discretion. Spahr, 617 N.W.2d at 917.

As noted above, relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. See Iowa R. Evid. 5.403. We do not think the trial court abused its discretion in making that judgment call here. Contrary to Pexa’s argument on appeal, the tortfeasor’s intoxication is not probative of the nature and extent of Pexa’s injuries. The tortfeasor’s intoxication was only marginally relevant at best to the plaintiffs claim that he feared involvement in another accident. On the other hand, this type of evidence would tend to influence a jury to increase its award of compensatory damages out of sympathy for the victim of such irresponsible conduct or to punish the drunk driver. See Weinstein’s Federal Evidence § 403.04[l][c], at 403-43, 403-46 (stating examples of unfairly prejudicial evidence include evidence that “appeals to the jury’s sympathies” or “provokes a jury’s instinct to punish”). Therefore, the trial court properly exercised its discretion in prohibiting evidence of the tortfeasor’s intoxication.

V. Evidence of > Insurance Contract and Its Terms.

The plaintiff wanted the jury to know that he sought benefits under the UIM coverage of his automobile policy; that he had UIM limits of $100,000; that there had been a prior settlement with the un-derinsured motorist; and that the plaintiffs previous recovery from the underin-sured motorist would be deducted from the amount of damages awarded by the jury. The trial court refused to permit such evidence or similarly instruct the jury, ruling this information was not relevant to the only disputed issues: the damages caused by the 1999 accident and the amount of those damages. Pexa was allowed to testify, however, that he had been insured with Auto Owners “for quite some time.” Consequently, the jury knew there was an insurer/insured relationship between Auto Owners and Pexa.

On appeal, the plaintiff does not explain how the excluded evidence was relevant to any disputed fact to be determined by the jury. He simply argues the jury should have been given these details to avoid speculating on the dispute between Pexa and Auto Owners. In addition, he claims the rulings and instructions of the trial court “effectively denied [him] all right to maintain his action in contract.”

We review the court’s exclusion of evidence of the insurance contract, its terms, and how the contractual recovery would be calculated for an abuse of discretion. See State v. Sinclair, 582 N.W.2d 762, 764 (Iowa 1998) (“This court reviews the trial court’s decision on the relevancy of evidence for an abuse of discretion.”). An abuse of discretion occurs when the court’s decision is based on a ground or reason that is clearly untenable or when the court’s discretion is exercised to a clearly unreasonable degree. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). We evaluate the alleged instructional error from the perspective that a trial court is generally required to give a requested instruction “when it states a correct rule of law having application to the facts of the case.” Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 868 (Iowa 1989). Consequently, “[w]e review a challenge to the district court’s refusal to submit a jury instruction for correction of errors of law.” State v. Ceaser, 585 N.W.2d 192,193 (Iowa 1998).

It is important in evaluating the trial court’s rulings to understand the context within which they were made. As noted earlier, the court submitted this case to the jury on a special verdict form that only required the jury to make two factual findings. This procedure is authorized by rule 1.933, which provides in part:

The court may require that the verdict consist wholly of special written findings on each issue of fact. It shall then submit in writing questions susceptible of categorical or brief answers, or forms of several special findings that the jury might properly make under the issues and evidence, or submit the issues and require the findings in any other appropriate manner. It shall so instruct the jury as to enable it to find upon each issue submitted.... The court shall direct such judgment on the special verdict and answers as is appropriate thereto.

Iowa R. Civ. P. 1.933. Under this form of submission, the jury resolves pertinent factual issues pursuant to the court’s instructions, and the trial court enters the general verdict “by applying the applicable law to the jury’s factual determinations.” Poyzer, 360 N.W.2d at 753. A special verdict is not to be confused with a general verdict using interrogatories, where the jury finds the facts and applies the law to the facts to render a verdict in favor of the plaintiff or the defendant. See Iowa R. Civ. P. 1.934 (providing for the use of interrogatories with a general verdict).

A special verdict serves two purposes: it simplifies a case for the jury and compels the jury “to more accurately focus on what it properly should.” Poyzer, 360 N.W.2d at 753; accord Franklin v. Sedore, 450 N.W.2d 849, 853 (Iowa 1990). As we noted in Franklin, “[sjpecial verdicts contribute uniquely to the truth-finding process” because they divert jurors’ “attention away from any preconceived notions of desired results.” 450 N.W.2d at 853. Consequently, when a special verdict is used, “[fjactual determinations tend to be evidence based, not result oriented.” Poyzer, 360 N.W.2d at 753. We have held that in such a submission, “it is wholly unnecessary and is generally improper for the jury to be concerned with the effect of its special findings.” Id. It is within the trial court’s discretion to employ a special verdict in lieu of a general verdict. Franklin, 450 N.W.2d at 853.

The trial court here did not abuse its discretion in submitting this case on a special verdict. By doing so, the court ensured the jury focused on the factual issues in dispute and decided those issues on the evidence and not to reach a certain result. The court also avoided the possible confusion that can arise when a jury is required to decide the value of a tort claim in the context of a contractual UIM claim — the proverbial “case within a case.” The method of submission chosen by the court was clearly reasonable and did not deprive the plaintiff, of his- right to maintain a contract action. .See Johnson v. State Farm Auto. Ins. Co., 504 N.W.2d 135, 138 (Iowa; Ct.App.1993) (rejecting insured’s claim that procedure followed by trial court, which was very similar to that employed here, .improperly “forced [the plaintiff] into bringing a tort suit, when she had filed a contract suit,” noting “the district court properly understood the issues before it,” namely that due to the insurer’s admissions, “[t]here was really no contract dispute”).

Consistent with its decision to use a special verdict, the court limited the evidence to those facts .that were relevant to the questions propounded to the jury. We agree with the district court that the nature of the dispute between the plaintiff and the defendant, the limits of the UIM coverage, Pexa’s settlement with the tort-féasor, and the required deduction of the settlement amount from any damages awarded by the jury were not relevant to these questions. See Waits, 572 N.W.2d at 570 (holding evidence of tortfeasor’s payment to insured irrelevant in UIM case submitted on special verdict). Moreover, it would have defeated the purpose of the special verdict format to admit evidence of and instruct the jury concerning matters extraneous to these issues. See McCon nell v. Aluminum Co. of Am., 367 N.W.2d 245, 250 (Iowa 1985) (stating it would have been improper for the trial court to advise the jury of the effect of its special verdict answers); cf. Poyzer, 360 N.W.2d at 753 (“[I]t is commonly thought to be inappropriate in a special verdict submission for counsel to direct the jury’s attention to the impact of any specific findings.”). Therefore the court did not abuse its discretion in refusing to admit evidence of the contractual dispute between the parties. See Johnson, 504 N.W.2d at 138 (holding evidence of settlement with tortfeasor and insurance contract properly excluded in UIM case where insurer had admitted liability, provided insured established tortfea-sor’s negligence caused her injuries and damages). Likewise, the court did not err in refusing to inform the jury of the details of this dispute in the court’s instructions.

VI. Denial of New Trial.

Pexa filed a posttrial motion asserting he was entitled to a new trial based, in part, on various rulings made by the trial court before and during trial. See generally Iowa R. Civ. P. 1.1004(1), (8) (allowing new trial if movant’s substantial rights are materially affected by an “abuse of discretion which prevented the movant from having a fair trial” or by “[ejrrors of law occurring in the proceedings”). We have already considered these rulings above and have found no abuse of discretion or error warranting reversal. Therefore, the trial court correctly denied the plaintiffs request for a new trial on these grounds.

In addition to relying on the claimed errors previously discussed, the plaintiff contended “the verdict of the jury [was] not sustained by the evidence in the case” and was “inadequate.” He asked the court to grant a new trial on this basis or alternatively to grant a conditional new trial, allowing the defendant to avoid retrial if it would agree to an additur. See Iowa Rs. Civ. P. 1.1004(4), (6) (allowing new trial on the basis of “inadequate damages appearing to have been influenced by passion or prejudice” or where “verdict ... is not sustained by sufficient evidence”), 1.1010(1) (authorizing court to permit party to avoid new trial by agreeing to condition imposed by court). The trial court overruled this request as well. We review this ruling for an abuse of discretion. See Fisher v. Davis, 601 N.W.2d 54, 57 (Iowa 1999) (reviewing ruling on motion for new trial based on inadequacy of verdict for abuse of discretion).

“ ‘If uncontroverted facts show the amount of the verdict bears no reasonable relationship to the loss suffered, the verdict is inadequate.’ ” Kerndt v. Rolling Hills Nat’l Bank, 558 N.W.2d 410, 417 (Iowa 1997) (citation omitted). Thus, the adequacy of a damage award depends on the facts of the particular case. Fisher, 601 N.W.2d at 57; Kerndt, 558 N.W.2d at 417. If the damages are inadequate, the trial court must either grant a new trial or, if appropriate, grant an additur. Kemdt, 558 N.W.2d at 417.

Although the plaintiff asserts generally in his brief that the jury’s findings with respect to specific items of damages “resulted in an inadequate total verdict and judgment,” his argument focuses on the jury’s failure to award any sum for future damages for loss of use of body and for pain and suffering. The element of loss of use of body “is the inability of a particular body part to function in a normal manner.” Brant v. Bockholt, 532 N.W.2d 801, 804-05 (Iowa 1995). The element of pain and suffering includes bodily discomfort, mental suffering, loss of enjoyment of life, and other emotional distress. Id. at 804. Thus, we examine the record for evidence on these matters.

At the time of trial the plaintiff was eighty-one years old. He testified that as a result of his injuries he had to use a wheelchair and then a walker while he was hospitalized; he was released from the hospital using a cane; and finally, approximately nine months after the accident, he was able to walk “like normal people do.” He also saw a physical therapist who gave him exercises to do to strengthen his back, which had been injured in the accident. By December of 1999 he was able to exercise on a treadmill. He typically exercises every day but Sunday at the Elk’s Club “to enhance [his] physical condition.”

The plaintiff also testified that he was in pain in the hospital, but was given medication to “stay comfortable.” He said he has pain in his pelvic area “[fjrom time to time” and, although he is not sure when it might come back, he does not “allow it to put a stress on [him].” He also testified that he has pain in his back, which he attributed to his age as well as the accident, acknowledging that his back pain could be due to his osteoarthritis. In addition, the plaintiff readily admitted he had suffered from low back pain for forty years, and after the accident had injured his back lifting a car battery. With respect to some knee and ankle “trouble” he had after the accident, he stated, “[I]t pretty well cleared up.” When asked to compare how he felt physically before the accident with how he felt at the present time, he responded, “It has now been three years, and I would say I’m just beginning to feel like maybe I felt before the accident.”

Pexa’s testimony revealed that he had resumed his normal pre-accident activities, which five days a week consisted of an eight o’clock breakfast at a local café; exercise, lunch, and cards at the Elk’s Club; dinner at the senior citizen’s center; a short nap at home; followed by a drive to the casino in Tama for a late evening of gambling and bingo with friends; and, upon returning home, viewing television from eleven o’clock to midnight before retiring for the night. He denied having a fear of another accident, but he said he takes extra caution at intersections since the accident.

Medical records documenting the plaintiffs various medical conditions and the treatment he received were also admitted into evidence and depositions of two of his treating physicians were read to the jury. In a notation made by one of his doctors after a May 1, 2000, examination of the plaintiff, the doctor states that Pexa was “almost back” to the state of health he was in prior to the accident. This same physician testified in his October 2002 deposition that the crack in Pexa’s pelvis had probably healed and that Pexa had not complained of any pain at the site of the fracture in the past year. Moreover, the medical records showed the plaintiff, in addition to having cancer and long-term back problems, suffered from high blood pressure and chronic leg edema.

We think the evidence before the jury supports its apparent conclusion that by the time of trial the plaintiff had made a complete recovery from the injuries he sustained in the accident and that any existing health problems were caused by conditions and injuries unconnected with the 1999 accident. Likewise, there is sufficient evidence to support the jury’s finding that Pexa would suffer no future pain and suffering and no future loss of use of body attributable to his 1999 injuries. We conclude, therefore, the trial court did not abuse its discretion in refusing to grant a new trial on the ground the damages found by the jury were inadequate. It follows the court did not abuse its discretion in failing to grant a conditional new trial. See Kawtman v. Mar-Mac Cmty. Sch. Dint, 255 N.W.2d 146, 148 (Iowa 1977) (holding since plaintiff was “not entitled to a new trial because of alleged inadequacy of the involved verdict any right to additur [was] concomitantly foreclosed”).

VII. Conclusion.

We have reviewed the assignments of error urged by the plaintiff and have found no basis for reversal. Accordingly, we affirm the district court’s judgment in favor of the defendant.

AFFIRMED.

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

      . Although this case arises from a contractual obligation of an insurer, the monetary aspect of the insurer's obligation, insofar as it is measured by the underinsured motorist’s legal liability to the insured, is determined with reference to principles of tort law. See Opperman v. Allied Mut. Ins. Co., 652 N.W.2d 139, 142 (Iowa 2002).

      . Pexa did not seek to have the jury informed of the settlement amount. See Waits, 572 N.W.2d at 570 (evidence of payment made by tortfeasor’s insurer not relevant in suit against UIM insurer).

      . In Waits, we stated the case had been submitted to the jury on "a special interrogatory.” 572 N.W.2d at 568 (emphasis added). A reading of the facts in our opinion makes it clear, however, that we misspoke; the matter was actually submitted on a special verdict. See generally McConnell v. Aluminum Co. of Am., 367 N.W.2d 245, 246 (Iowa 1985) (noting special verdicts "should be distinguished from jury interrogatories which may appropriately be used in connection with a general verdict”). The use of a special verdict and the limited issues in dispute here and in Waits distinguish these cases from our decision in Leuchtenmacher v. Farm Bureau Mutual Insurance Co., 461 N.W.2d 291, 294-95 (Iowa 1990), where we affirmed a trial court’s ad- ' mission of evidence of the UIM limits. See Waits, 572 N.W.2d at 570 (distinguishing Leu-chtenmacher).

      . A recent appeal of another UIM case demonstrates the wisdom of the trial court's approach in the case before us. In Ostrem v. State Farm Mutual Automobile Insurance Co., 666 N.W.2d 544 (Iowa 2003), the jury was instructed on the elements the1 plaintiff had to prove to recover on her contractual UIM claim, but was asked to specifically list the amount of damages sustained by the insured in the accident. Ostrem, 666 N.W.2d at 545. During its deliberations, the jury sent two questions to the judge concerning the insured’s settlement with the tortfeasor, including its effect on the jury’s verdict. Id. After the jury returned a verdict that established the insured's damages in the accident in an amount less than the tortfeasor’s liability limits, the insured appealed. Id. The insured argued the jury had intended to indicate in its answer the sum that was owed by the UIM carrier under its policy, rather than the total amount of damages sustained in the accident. Id. Although this court rejected the plaintiff’s argument, we noted that "it would have been less confusing to the jury if the $100,000 [liability limits] had not even been mentioned in the court’s instructions.” Id. at 546.


source: Caselaw Access Project

author: WIGGINS, Justice. CADY, Justice

license: Public Domain

text:
    Crystal KIESAU, Appellant, v. Tracey BANTZ, Buchanan County, Iowa, and Leonard R. Davis, Appellees.
    No. 03-0815.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      Tom Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
    Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, P.L.C., Cedar Falls, for appellee Bantz.
    William G. Nicholson of Rush & Nicholson, P.L.C., Cedar Rapids, for appellees Buchanan County and Davis.
   WIGGINS, Justice.

Tracey Bantz (Bantz), a deputy sheriff employed by the Buchanan County (County) Sheriffs Department, altered a photograph of fellow officer Crystal Kiesau (Kiesau) to make it appear that Kiesau was standing with her K-9 dog in front of her sheriffs vehicle with her breasts exposed. Bantz showed and electronically mailed the altered photograph to third persons. Upon learning of Bantz’s actions, Kiesau brought an action against Bantz for defamation and invasion of privacy. She later amended her petition to include claims for negligent ‘ hiring, supervision, and retention against the County and Buchanan County Sheriff Leonard Davis (Davis).

The defendants moved for summary judgment. The district court granted summary judgment in favor of Davis and the County rejecting Kiesau’s claims for negligent hiring, supervision, and retention because she did not incur a physical injury. The district court also found when it viewed the record in a light most favorable to Kiesau, as a matter of law, she was not entitled to punitive damages against Davis. The court overruled Bantz’s motion for summary judgment. The claims against Bantz proceeded to trial resulting in a jury verdict in favor of Kiesau.

Because we conclude in a claim based on negligent hiring, supervision, or retention, the injured party need not suffer physical injury, and a genuine issue of material fact exists as to whether Kiesau is entitled to punitive damages on her claim against Davis, we reverse the district court’s order granting summary judgment in favor of Davis and the County. We affirm the judgment in favor of Kiesau against Bantz because the district court properly instructed the jury and substantial evidence supported the jury verdict against Bantz on the issues of defamation, compensatory damages, and punitive damages.

I. Background. Facts and Proceedings.

When viewed in a light most favorable to Kiesau, the record supports the following facts. In October 1997, Kiesau began her employment with the County as a deputy sheriff. She was the first and only female employed by the department as a deputy sheriff. Initially, Kiesau worked as an undercover agent for the drug task force. Later, she -became involved in the K-9 program, eventually becoming a - dog handler. In the summer of 1999, with Kies-au’s permission, the K-9 training school’s website posted a photograph of Kiesau standing in front of a marked Buchanan County sheriff patrol car with her police dog.

■ The County also employed Bantz as a deputy sheriff.' Bantz is the son-in-law of Davis. Kiesau tried to be friendly with Bantz, but he seldom acknowledged her and would oftentimes walk out of the room when Kiesau entered. Kiesau eventually made a complaint against Bantz after he began writing critiques on her official reports. ■ ‘

Over the course of his employment, Davis received many other complaints against Bantz. Captain - Hepke testified the complaints lodged against Bantz were the most complaints he has ever received against a deputy in his twenty-two years of law enforcement experience. In 1997, Sergeant Wolfgram sent a memo to Davis and Hepke concerning Bantz’s refusal to respond to a dispatch call. Wolfgram informed Davis and Hepke, “I am getting tired of people complaining that nothing ever happens to Deputy Bantz when a complaint is written up.” In 1998, Lieutenant Jerry D. Furness wrote a complaint and recommended Davis terminate Bantz as a canine handler. Furness alluded to Bantz’s recent disciplinary problems and based this recommendation on Bantz’s lack of honesty, integrity and good judgment; Bantz’s inability to work independently and unsupervised; his lack of cooperation with other members of the unit and his supervisors; and his lack of courage. Furness described Bantz as “a lawsuit waiting to happen even without a dog.” In 1999, Furness once again submitted a written complaint to Davis and Hepke stating Bantz was the cause of the turmoil and low morale in the department. Furness informed Davis and Hepke that Bantz “is admittedly arrogant in his knowledge that he can do anything and nothing will happen to him.” Furness also expressed the feelings of the other deputies in the department that Bantz’s actions would eventually cause a lawsuit. Furness further informed Davis the deputies were looking for someone to run against Davis for sheriff because of Bantz’s actions. Davis apparently took no action in response to these complaints.

On February 14, 2000, Kiesau sustained physical injuries in a collision with another vehicle while she was on duty'and traveling in her police vehicle. On April 27, 2001, Kiesau left her employment at the sheriffs office after Davis asked her to resign from the department because he did not believe she was physically capable of performing the heavy-duty activities of a police officer.

In February 2001, from his home computer, Bantz acquired the photograph of a uniformed Kiesau posing with her K-9 dog and digitally altered it to make it appear that Kiesau had pulled up her shirt to expose her breasts. Beginning in February 2001 and continuing for approximately ten months, Bantz showed the altered photograph to several individuals and electronically mailed it to others, including members of the sheriffs department and the Independence Police Department. It is unclear how many people viewed the altered photograph. At first, Bantz identified himself as the sender of the altered photograph, but he later sent the altered photograph anonymously. Bantz also admitted showing the altered photograph to other law enforcement officers while they and he were on duty.

In November 2001, Bantz sent an anonymous electronic message, under the name of iamyourdaddy9@hotmail.com of the altered photograph to Assistant Chief of Police of Independence, Darwin Meyers. Meyers decided to investigate the identity of the sender of the altered photograph. He determined it was Bantz. Meyers informed Furness of the altered photograph, who in turn informed Kiesau. Kiesau testified she was humiliated and angry when she saw the photograph. Kiesau sought psychiatric treatment for her emotional distress resulting from Bantz’s actions.

Kiesau filed suit against Bantz seeking compensatory and punitive damages for defamation and invasion of privacy. Later, Kiesau added the County and Davis as defendants. The amended petition alleged the two added defendants negligently hired, supervised, or retained Bantz. She sought compensatory damages against Davis and the County. She also sought punitive damages against Davis.

The County and Davis moved for summary judgment. Relevant to this appeal, they argued the district court should dismiss Kiesau’s claims of negligent hiring, supervision, and retention because Kiesau claimed no physical injury, and Davis cannot be liable for punitive damages.

In the district court, Judge Alan L. Pearson dismissed Kiesau’s claims for negligent hiring, supervision, and retention against Davis and the County because of Kiesau’s lack of physical injury. The district court also concluded when it viewed the record in a light most favorable to Kiesau, as a matter of law, she was not entitled to punitive damages against Davis.

Bantz filed a separate motion for summary judgment, which district court Judge Lawrence H. Fautsch overruled. Judge Fautsch submitted Kiesau’s claims against Bantz for defamation and invasion of privacy to the jury. The jury found Kiesau was entitled to damages for defamation and invasion of privacy and awarded her $96,000 in compensatory damages and $60,000 in punitive damages. Kiesau and Bantz appeal.

II. Issues.

Kiesau contends her claim for negligent hiring, supervision, or retention is viable without physical injury. Kiesau further argues if we allow her to proceed under the theory of negligent hiring, supervision, or retention, a genuine issue of material fact exists as to the issue of punitive damages against Davis.

Bantz contends the district court should have granted his motion for summary judgment. He also contends the district court improperly instructed the jury, and there was insufficient evidence to support the verdict.

III. Scope of Review.

Our review of a summary judgment ruling is for correction of errors at law. Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003). Summary judgment is appropriate if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3). On a motion for summary judgment, we view the record in the light most favorable to the nonmov-ing party. Bushby v. Washington County Conservation Bd., 654 N.W.2d 494, 496 (Iowa 2002).

We review challenges to. jury instructions for correction of errors at law, while we review a court’s refusal to give an instruction for an abuse of discretion. State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003).

We review a challenge for sufficiency of evidence to support a jury’s verdict to determine whether substantial evidence in the record supports the jury’s findings. Cedar Falls v. Cedar Falls Sch. Dist, 617 N.W.2d 11, 16 (Iowa 2000). On appeal, we view the evidence in the light most favorable to the verdict, taking into consideration all reasonable inferences that could be fairly made by the jury. Id.

IV.Kiesau’s Appeal.

A. Does a claim based on negligent hiring, supervision, or retention require physical injury?

Citing Graves v. Iowa Lakes Community College, the district court dismissed Kiesau’s claims of negligent hiring, supervision, and retention because these causes of action do “not extend to cases such as this where there are no physical injuries.” 639 N.W.2d 22, 25 (Iowa 2002). Kiesau asks us to overrule Graves.

At this point in our analysis, it is important to review our cases discussing the torts of negligent hiring, supervision, and retention. We first recognized these causes of action in Godar v. Edwards, 588 N.W.2d 701, 709 (Iowa 1999). These claims are based on Restatement (Second) of Agency § 213 (1957). Section 213 provides as follows:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instru-mentalities under his control.

These causes of action are separate and distinct from those based on re-spondeat superior liability, which imposes strict liability on employers for the acts of their employees committed within the scope of their employment. Van Home v. Muller, 185 Ill.2d 299, 235 Ill.Dec. 715, 705 N.E.2d 898, 905 (1998). A cause of action based on negligent hiring, supervision, or retention allows an injured party to recover where the employee’s conduct is outside the scope of employment, because the employer’s own wrongful conduct has facilitated in some manner the tortious acts or wrongful conduct of the employee. Island City Flying Serv. v. Gen. Elec. Credit Corp., 585 So.2d 274, 278 (Fla.1991).

In Schoff v. Combined Insurance Co. of America, we decided a necessary element of a claim for negligent hiring, supervision, or retention is an underlying tort or wrongful act committed by the employee. 604 N.W.2d 43, 53 (Iowa 1999). Thus, an injured party must show the employee’s underlying tort or wrongful act caused a compensable injury, in addition to proving the negligent hiring, supervision, or retention by the employer was a cause of those injuries. Godar, 588 N.W.2d at 708. In other words, the injured party must prove a case within a case.

After deciding Godar and Schoff, we decided Graves. In Graves, we affirmed the dismissal of a negligent supervision claim because the plaintiff failed to assert any physical injuries. 639 N.W.2d at 25. Apparently, we did not consider our holding in Schoff when deciding Graves because a physical-injury requirement is inconsistent with our broad characterization in Schoff of the required employee conduct.

On reexamining our decision in Graves, we believe the requirement of physical injury is an improper statement of the law in light of our prior decision in Schoff and the Restatement (Second) of Agency section 213 upon which Schoff and Godar were based. A plain reading of section 213 of the Restatement (Second) of Agency reveals no requirement that an injured party must sustain physical injury to recover under a claim of negligent hiring, supervision, or retention. Graves relied on Minnesota and Texas law to reach the conclusion that recovery for negligent supervision extends only to physical injuries. Minnesota still requires either the threat of or actual physical injury to sustain a claim for negligent supervision and retention. See, e.g., St. Hilaire v. Minco Prods., Inc., 288 F.Supp.2d 999, 1010 (D.Minn.2003). A federal district court, however, has now determined under Texas law, if an employee commits an actionable tort causing a legally compensable injury based on negligent hiring, supervision, or retention, physical injury is not necessary to sustain the cause of action. See, e.g., Verhelst v. Michael D’s Rest. San Antonio, Inc., 154 F.Supp.2d 959, 968 (W.D.Tex. 2001).

At least two other federal courts applying state law have also adopted the rule that the underlying tort or wrongful conduct determines the compensability of the injury in a cause of action against an employer for negligent hiring, supervision, or retention. In Grego v. Meijer, Inc., the federal district court applying Kentucky law stated, “[T]he tort of negligent supervision does not necessarily derive from employees’ torts that cause physical injury....” 187 F.Supp.2d 689, 694 (W.D.Ky. 2001). Likewise, in Hays v. Patton-Tully Transportation Co., the federal district court applying Tennessee law allowed a claim of negligent supervision when the underlying tort committed by the employee was intentional infliction of emotional distress. 844 F.Supp. 1221, 1223-24 (W.D.Tenn.1993).

This rule is consistent with our prior holding in Schoff, which requires the injured party to prove the underlying tort or wrongful conduct was a cause of the party’s compensable damages. 604 N.W.2d at 53. Thus, in a cause of action against an employer for negligent hiring, supervision, or retention, the employer’s liability arises from the employer’s own tortious conduct; the underlying tort or wrongful conduct is simply a link in the causal chain leading to compensable damages. To hold otherwise would lead to absurd results. Under the rule of Graves, if an employer’s negligent hiring, supervision, or retention caused the employee to batter one person but assault another in the same incident, only the victim of the battery would be able to recover any legally compensable damages for the negligence of the employer. There is no logical explanation as to why the battered victim can recover but the assault victim cannot.

Although we acknowledge stare decisis as a venerable doctrine that lends stability to the law, this doctrine does not “prevent the court from reconsidering, repairing, correcting, or abandoning past judicial announcements when error is manifest. ...” Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000). More important, the doctrine of stare decisis should not deprive a litigant of a legal right or defense because of a clearly erroneous past decision. Henriksen v. Younglove Constr., 540 N.W.2d 254, 260 (Iowa 1995); Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117, 121 (Iowa 1973); State v. Johnson, 257 Iowa 1052, 1056, 135 N.W.2d 518, 521 (1965); Stuart v. Pilgrim, 247 Iowa 709, 714, 74 N.W.2d 212, 216 (1956). Therefore, to the extent Graves holds a negligent hiring, supervision, or retention claim requires physical injury, we overrule it. The district court should not have granted Davis’s and the County’s motion for summary judgment on the ground Kiesau did not suffer any physical injury.

B. Does a genuine issue of material fact exist regarding the recovery of punitive damages against Davis?

The County is immune for any claim for punitive damages. Iowa Code § 670.4(5) (2001). Davis, however, is liable for punitive damages in the performance of his duty upon showing actual malice or willful, wanton, and reckless misconduct. Id. § 670.12. For purposes of Iowa Code section 670.12, “[ajctual malice is characterized by such factors as personal spite, hatred, of ill will.” Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001).

The willful, wanton, and reckless misconduct standard under section 670.12 is the same as the willful and wanton disregard for the rights of another standard found in section 668A.l(l)(a). Vlotho v. Hardin County, 509 N.W.2d 350, 356 (Iowa 1993). Therefore, willful, wanton, and reckless misconduct under section 670.12 occurs when an

actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.

Id.) accord Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa 1990).

In viewing the record in the light most favorable to Kiesau, she has failed to show the existence of a genuine issue of material fact as to whether Davis’s conduct constituted actual malice. Under this same standard, however, a genuine issue of material fact exists as to whether Davis’s conduct met the willful, wanton, and reckless misconduct standard under section 670.12. Davis received numerous complaints regarding Bantz from the highest-ranking officers in his department. On more than one occasion, these officers recommended Davis should begin termination procedures against Bantz. Furness criticized Bantz for his lack of honesty, integrity, and good judgment. On more than one occasion, Bantz’s superiors warned Davis that Bantz was a “lawsuit waiting to happen.” Despite these complaints, Davis failed to take any meaningful disciplinary action against Bantz. A fact finder could find Davis intentionally failed to take any action against Bantz because Bantz was his son-in-law. A fact finder could also find Bantz posed a known or obvious risk to third parties that was so great as to make it highly probable that harm would follow from Davis’s failure to take any action against Bantz. A fact finder could further find Davis’s conduct as a conscious indifference to the consequences of his failure to act. For these reasons, we must reverse the district court’s decision granting Davis’s motion for summary judgment on the issue of punitive damages.

V. Bantz’s Appeal.

A. Did the district court err in failing to grant Bantz’s motion for summary judgment?

A ruling sustaining a motion for summary judgment, which disposes of the entire case, is a final judgment for purposes of appeal, while an order overruling a motion for summary judgment is interlocutory. Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 302 (Iowa 1975). After a full trial on the merits, a previous order denying a motion for summary judgment is no longer appealable or reviewable. See Klooster v. N. Iowa State Bank, 404 N.W.2d 564, 567 (Iowa 1987). At this point in the proceedings, the denial of the motion for summary judgment merges with the trial on the merits where the trier of fact reviewed the exhibits and listened to the testimony of the witnesses. We, therefore, decline to consider the assignments of error relating to the denial of the motion for summary judgment and consider only those claims in connection with the other issues raised by Bantz on appeal.

B. Did the district court properly instruct the jury on Kiesau’s defamation claim?

Bantz claims the district court committed error by (1) failing to provide the jury with an instruction that permitted a finding of no defamation; (2) failing to instruct on libel per quod; (3) failing to instruct on the defense of opinion or parody; and (4) failing to instruct the jury that Kiesau was a public official or limited public figure.

Defamation includes the twin torts of libel and slander. Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 83 (Iowa 2001). Libel involves written statements, while slander involves oral statements. Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa 1996). As we have previously explained,

[t]he law of defamation embodies the public policy that individuals should be free to enjoy their reputation unimpaired by false and defamatory attacks. An action for defamation or slander is based upon a violation of this right.
The gravamen or gist of an action for defamation is damage to the plaintiffs reputation. It is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation.
Defamation is an impairment of a relational interest; it denigrates the opinion which others in the community have of the plaintiff and invades the plaintiffs interest in his reputation and good name. A cause of action for defamation is based on the transmission of derogatory statements, not any physical or emotional distress to plaintiff which may result. Defamation law protects interests of personality, not of property.

Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998) (quoting 50 Am. Jur. 2d Libel and Slander § 2, at 338-39 (1995)).

Here, the tort involved is libel. To establish a prima facie case of libel, the plaintiff must show the defendant “(1) published a statement that (2) was defamatory (3) of and concerning the plaintiff, and (4) resulted in injury to the plaintiff.” Johnson, 542 N.W.2d at 510. There are two kinds of libel: libel per se and libel per quod. In statements that are libelous per se, falsity, malice, and injury are presumed and proof of these elements is not necessary. Vinson v. Linn-Mar Cmty. Sch. Dist, 360 N.W.2d 108, 115-16 (Iowa 1985). “An attack on the integrity and moral character of a party is libelous per se.” Wilson v. IBP, Inc., 558 N.W.2d 132, 139 (Iowa 1996).

If a statement is clear and unambiguous, the issue of whether the statement is libelous per se is for the court. Vinson, 360 N.W.2d at 116. If the court determines a statement is libelous per se as a matter of law, the burden shifts to the defendant to prove the statement was used and understood in a different sense. Andreas v. Hinson, 157 Iowa 43, 45,137 N.W. 1004, 1005 (1912). If a statement is susceptible to two reasonable meanings, however, it is not libelous per se if one of the meanings is not defamatory. Kerndt v. Rolling Hills Nat’l Bank, 558 N.W.2d 410, 418 (Iowa 1997). If the language can reasonably be construed as having two meanings, then it is up to the jury to decide whether the statement is libelous per se. Id.

In cases of libel per quod, “a plaintiff must ordinarily prove some sort of cognizable injury, such as injury to reputation.” Johnson, 542 N.W.2d at 513 (citing 53 C.J.S. Libel and Slander § 6 (1987)). To sustain an action for defamation based on libel per quod, the plaintiff must be able to show more than “hurt feelings.” Johnson, 542 N.W.2d at 513 (citing 53 C.J.S. Libel and Slander at § 5). If, however, the defendant’s action is found to be libel per se, then damage to reputation is presumed. Schlegel, 585 N.W.2d at 222; see also Johnson, 542 N.W.2d at 510 (stating “all the elements of proof are presumed to exist for statements that are libelous per se”).

When a requested instruction states a correct rule of law having application to the facts of the case and the concept is not otherwise contained in other instructions, the court is required to give the requested instruction. Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). A trial court is not required to word jury instructions in a particular way and is free to draft instructions in its own way if it fairly covers the issues. Schuller v. Hy-Vee Food Stores, Inc., 407 N.W.2d 347, 351 (Iowa Ct.App.1987). The jury must consider the instructions as a whole, and if the instructions do not mislead the jury, there is no reversible error. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999).

We review jury instructions to decide not only whether they are a correct statement of the law, but also whether the evidence presented at trial substantially supports the instructions. Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). If we find an instruction to be erroneous, our inquiry does not end. The erroneous instruction must be prejudicial. Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). “Prejudice results when the trial court’s instruction materially misstates the law, confuses or misleads the jury, or is unduly emphasized.” Anderson v. Webster City Cmty. Sch. Disk, 620 N.W.2d 263, 268 (Iowa 2000).

1.Did the district court fail to provide the jury with an instruction that permitted a finding of no defamation?

The district court gave the following instruction regarding Kiesau’s defamation claim.

INSTRUCTION NO. 10

To prove her defamation claim, Plaintiff must prove all of the following propositions:
1. The Defendant made the altered photograph.
2. The Defendant showed the altered photograph to one or more persons other than the Plaintiff by either hand delivery or by e-mail.
3. The altered photograph would reasonably be understood to be an expression which would attack a person’s integrity or moral character.
If the Plaintiff has failed to prove any of these propositions, the Plaintiff is not entitled to damages. If the Plaintiff has proven all of these propositions, then the Plaintiff is entitled to damages in some amount.

The second to last sentence of the instruction tells the jury if Kiesau failed to prove any proposition contained in the instruction, she failed to prove her claim of defamation. The district court required the jury confirm its decision on Kiesau’s defamation claim by having them answer the question: “[D]id the defendant commit defamation of plaintiff Crystal Kiesau?” contained in the special verdict form. The jury answered this question affirmatively. The instruction combined with the special verdict clearly allowed a jury to make a finding of no defamation.

2. Did the district court err by failing to instruct on libel per quod?

Bantz claims the district court should have instructed the jury on libel per quod. This assignment of error is without merit. Kiesau never requested the district court submit her case to the jury on a libel per quod theory. If she had, she would be required to prove actual damage to her reputation. A libel per se action presumes damage to reputation. Schlegel, 585 N.W.2d at 222. If the jury found the altered photograph was not libelous per se, she would not have prevailed on her claims at trial. Bantz is not entitled to dictate what claims the plaintiff wants submitted to the jury for consideration. The case as submitted fairly represented the theory of libel as pled by Kies-au applicable to the facts contained in the record.

3. Did the district court err by failing to instruct on the defense of parody or opinion?

a. Parody. Bantz argued in the district court that the altered photograph was not libelous per se and could be reasonably understood to be a parody. Kiesau argued the altered photograph was clear and unambiguous, and the court should have found as a matter of law the photograph is libelous per se. Had the district court agreed with Kiesau’s position, the court would only need to instruct the jury on the elements of publication and damages for Kiesau to recover on her claim of libel per se. Under this scenario, the district court would also be required to instruct the jury-on Bantz’s affirmative defense of parody. Andreas, 157 Iowa at 47, 137 N.W. at 1006. The district court did not submit Kiesau’s case in this manner.

Instead, the court concluded the altered photograph was susceptible of more than one meaning and refused to instruct the jury the altered photograph was libelous per se. The district court required Kiesau to prove “the altered photograph would reasonably be understood to be an expression which would attack a person’s integrity or moral character.” This language encompasses the concept of parody with the burden on Kiesau to prove the altered statement was not a parody.

To be a parody, the jury must find the altered photograph could not reasonably be understood as describing actual facts about Kiesau or actual events in which Kiesau participated. See Hustler Magazine v. Falwell, 485 U.S. 46, 57, 108 S.Ct. 876, 882, 99 L.Ed.2d 41, 53 (1988). Although the instructions did not specifically mention the word “parody,” the concept that the altered photograph was a parody was contained in the instructions when the district court required the jury to determine whether the altered photograph “would reasonably be understood to be an expression which would attack a person’s integrity or moral character.” The instructions as a whole correctly stated the law, did not mislead the jury, or prejudice Bantz.

b. Opinion. Bantz also argued in the district court that the altered photograph was not libelous per se and could be reasonably understood to be an expression of his low opinion of Kiesau. “Opinion is absolutely protected under the First Amendment.” Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 891 (Iowa 1989). We have adopted various factors to determine whether a statement is fact or opinion. Id. These are:

1. The precision and specificity of the statement;
2. The verifiability of the statement; and
3. The literary context in which the statement was made.

Id. The third factor, literary context, includes the “social context,” which focuses on the category of the publication, its style and intended audience, and the “political context” in which the statement was made. Id. at 891-92.

In applying these factors, the altered photograph is precise and specific in its representation of Kiesau. A person could easily verify the truth or falsity of the altered photograph by a simple inquiry of Kiesau. Finally, Bantz did not publish the altered photograph in any political context. He sent the altered photo to fellow employees without any disclaimer. At times, he sent it anonymously. Under these circumstances, it was not opinion. Failure to submit an instruction on opinion was not an abuse of discretion because the evidence did not support the proposed instruction. See State v. Langlet, 283 N.W.2d 330, 336 (Iowa 1979).

A Did the district court err by failing to instruct the jury that Kiesau was a public official or limited public figure?

If Kiesau was a public official or a limited public figure, she would not be entitled to recover any damages for a defamatory statement concerning her official conduct unless she presented clear and convincing proof that the statement was made with actual malice. New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964). Bantz argues the mere fact of Kiesau being a police officer makes her a public official. We have previously rejected the expansive view that all government employees are public officials as inconsistent with the plain meaning of the standards announced by the Supreme Court in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) and Ro-senblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Jones, 440 N.W.2d at 895. We have previously held a low ranking firefighter who does not have substantial responsibility over the conduct of governmental affairs is not a public official. Id. at 896. The same rule applies to a low ranking deputy sheriff such as Kiesau.

We have recognized that people may become limited public figures if they “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. at 895 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808 (1974)). The only act Bantz claims could make Kiesau a limited public figure is her appearance on the K-9 school’s website. Her appearance on the website did not thrust her to the forefront of any public controversy to influence the resolution of any issue of public importance.

C. Was the jury’s verdict supported by substantial evidence?

Bantz first contends there was insufficient evidence to support a finding of defamation. The altered photograph showing Kiesau standing with her K-9 dog in front of her sheriffs vehicle in uniform with her breasts exposed could be reasonably understood to attack the integrity and moral character of Kiesau. Substantial evidence existed to support finding the altered photograph was libelous per se.

Once the jury found the altered photograph was libelous per se, the law conclusively presumed the existence of damages to Kiesau’s reputation from the publication and allowed the jury to award substantial damages without proving actual damage to her reputation. See Schlegel, 585 N.W.2d at 222. In addition to damages to Kiesau’s reputation, she is also entitled to damages for the actual injury inflicted by the libelous statement including personal humiliation, mental anguish and suffering, and the out-of-pocket costs for treating those conditions. See id. at 222-23.

The jury awarded Kiesau $96,000 in compensatory damages for emotional distress, past mental pain and suffering, future mental pain and suffering, past medical expenses, and future medical expenses. The medical testimony at trial indicated Kiesau experienced personal humiliation together with mental anguish and suffering. Her psychologist diagnosed her as having an adjustment disorder with mixed anxiety and depressed mood caused by the publication of the altered photograph. The medical testimony also substantiates the necessity for treatment of these conditions in the future. There was substantial evidence in the record to support the jury’s verdict for compensatory damages.

Bántz also complains about the $60,000 award of punitive damages against him by the jury. The evidence showed Bantz published the altered photograph for approximately ten months. He continued to publish the altered photograph in spite of the negative reaction he received from the persons who saw it. At times, he electronically mailed the altered photograph anonymously. Substantial evidence supports the jury’s finding that Bantz’s actions constituted a willful and wanton disregard for the rights of Kiesau. Under these circumstances, an award of $60,000 in punitive damages does not shock the judicial conscience. See Kelly v. Iowa State Educ. Ass’n, 372 N.W.2d 288, 302 (Iowa Ct.App.1985).

D. Other issues raised on appeal by Bantz.

Bantz also raises various issues regarding Kiesau’s claim of invasion of privacy. The district court submitted Kies-au’s invasion of privacy claim based on Bantz’s publication of the altered photograph, which put Kiesau in a false light. An invasion of privacy claim involving placing a person in false light occurs when

[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (1) the false light in which the other was placed would be highly offensive to a reasonable person, and (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Winegard v. Larsen, 260 N.W.2d 816, 823 (Iowa 1977). At trial, the evidence used to support Kiesau’s defamation claim was the same evidence used to support her invasion of privacy claim. The jury answered the special interrogatory finding in Kies-au’s favor on her invasion of privacy claim.

Having determined the district court properly instructed the jury on the defamation claim and substantial evidence supported the findings of defamation, compensatory damages, and punitive damages, we need not address any issues raised involving Kiesau’s invasion of privacy claim. The district court instructed the jury to determine Kiesau’s damages for the injuries she suffered due to Bantz’s defamation and invasion of privacy. The factual basis used to establish Kiesau’s defamation claim and the damages caused by the defamation is the same factual basis used to establish her invasion of privacy claim and the damages caused by the invasion of privacy. Although the defamation claim allowed Kiesau to recover general damages and damages for loss of reputation, elements of damages not compensable under an invasion of privacy claim, all the other damages awarded by the jury on the defamation claim were the same damages she was entitled to recover under her invasion of privacy claim. Thus, even if we were to reverse the invasion of privacy claim, Kiesau would still be entitled to the damages awarded by the jury for her defamation claim.

VI. Disposition.

We direct the summary judgment entered against Kiesau in favor of Davis and the County be reversed and the case remanded to the district court for further proceedings consistent with this opinion. We affirm the judgment entered against Bantz in favor of Kiesau.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

All justices concur except CADY, J., who dissents.

CADY, Justice

(dissenting).

I respectfully dissent. The majority revisits an issue we ostensibly settled just over two years ago in Graves, 639 N.W.2d at 25, and now determines our unanimous conclusions on the issue of negligent supervision in that case were unfounded. Having adopted the rule in Graves that a claim of negligent supervision is not actionable without physical injury, id., I believe we are obligated, under the governing principle of stare decisis, to apply and follow the rule in this case.

It nearly goes without saying that the doctrine of stare decisis is one of the bedrock principles on which this court is built. It is an important restraint on judicial authority and provides needed stability in and respect for the law. The majority acknowledges the importance of this principle but fails to follow the standards we have developed to ensure its protection. While we would abdicate our role as a court of last resort if we failed to occasionally ■ reexamine our prior decisions, we must undertake this weighty task only for the most cogent reasons and with the greatest caution. State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003). Ultimately, “[i]t is even of more ‘importance that a rule should be fixed and stable than that it should be strictly just.’ ” Clark v. Hyman, 55 Iowa 14, 20, 7 N.W. 386, 389 (1880) (citation omitted). Thus, we have long accorded the highest respect to our prior opinions, overruling them only when error is manifest and the precedent clearly erroneous. E.g., Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000); Kersten Co. v. Dep’t of Soc. Sens., 207 N.W.2d 117, 121-22 (Iowa 1973). This exceedingly high standard — which has been variously described but ever present throughout this court’s history — cannot be satisfied in this case.

The law in this area is not so clear and settled that it compels us to overrule our holding in Graves that a physical injury must underlie a claim for negligent hiring, supervision, or retention. , 639 N.W.2d at 25. If the law in this area was more settled — if we could truly say Graves was out of the jurisprudential mainstream and clearly erroneous' — our obligation to overturn it might be manifest. Instead, several principles related to the physical injury requirement remain unsettled. The majority implicitly acknowledges this fact by describing our “error” in Graves in reference to cases that reveal the spectrum of approaches to this issue. See Grego v. Meijer, 187 F.Supp.2d 689, 694 (W.D.Ky. 2001); Verhelst v. Michael D’s Rest San Antonio, Inc., 154 F.Supp.2d 959, 968 (W.D.Tex.2001); Hays v. Patton-Tully Transp. Co., 844 F.Supp. 1221, 1223 (W.D.Tenn.1993). These cases — each of which is a federal court interpretation of unsettled state law — hardly show Graves is “palpably wrong.” Cover v. Craemer, 258 Iowa 29, 35, 137 N.W.2d 595, 599 (1965). At best, they show a doctrine in flux. Moreover, in addition to the cases we cited in Graves to support our adoption of the physical injury rule, many other courts around the nation require physical injury. See, e.g., Monte v. Ernst & Young, LLP, 330 F.Supp.2d 350, 365 (S.D.N.Y.2004) (holding that a plaintiff subjected to discrimination could not recover for negligent hiring/retention because he could not establish a “significant physical injury”); McDaniel v. Fulton County Sch. Dist., 233 F.Supp.2d 1364, 1388-89 (N.D.Ga.2002) (holding that under Georgia law, emotional distress in the absence of physical injury or willful or wanton conduct is insufficient to support a claim of negligent hiring, retention, or supervision); Midwest Knitting Mills, Inc. v. United States, 741 F.Supp. 1345, 1350 (E.D.Wis.1990) (concluding that under Wisconsin law, employer cannot be sued for negligent supervision when conduct did not result in physical injury).

Of course, we stepped into the breach two years ago and stated where we stand on this issue. See Graves, 639 N.W.2d at 25. Like this case, the claims in Graves included negligent supervision and defamation. Furthermore, the key cases cited by the majority were decided before Graves. Grego, 187 F.Supp.2d at 694 (decided in 2001); Verhelst, 154 F.Supp.2d at 968 (decided in 2001); Hays, 844 F.Supp. at 1223 (decided in 1993). The undeniable implication of the majority opinion is that we did not fully and fairly consider the entire spectrum of law related to the physical injury requirement when we chose our course in Graves. Yet, there is no evidence that this is the case, and if we are willing to indulge that belief — even implicitly — what is to stop others from undercutting all of our precedents based on similar logic? See Stewart v. Bd. of Supervisors, 30 Iowa 9, 43 (1870) (Beck, J., dissenting) (“There can be no greater reproach to the administration of justice by the courts than the well-founded charge of oscillating decisions.”); see also Swan Lake Consol. Sch. Dist. v. Consol. Seh. Dist. of Dolliver, 244 Iowa 1269, 1276, 58 N.W.2d 349, 353 (1953) (“No sufficient reason why [a principle] should unanimously have been held sound less than four years ago and now found to be unsound has been advanced.”).

Additionally, the majority declares Graves to be inconsistent with our decisions in Schojf and Godar. Yet, these three decisions can all be read as consistent, which is something I believe we are obligated to do when possible. Instead, the majority creates an inconsistency by reading far too much into Schojf and Go-dar.

I would affirm the decision of the district court. We chose our course in Graves, and we are obligated to follow it in this case.

      . From the very beginnings of this court, we have guarded the venerable doctrine of stare decisis and required the highest possible showing that a precedent should be overruled before taking such a step. See Hildreth v, Tomlinson, 2 Greene 360, 361 (1849) ("To justify us in overruling a deliberate judgment of the supreme court, whether made before or since our state organization, the decision must appear to be palpably erroneous.”); see also Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 857 (Iowa 2001) ("[Ujnder- the doctrine of stare decisis there is a preference for upholding prior decisions of this court.” (citation omitted)); Miller, 606 N.W.2d at 306 (noting holdings should be overruled only "when error is manifest” (citations omitted)); Kersten Co., 207 N.W.2d at 121 (involves “a clearly erroneous result”); Cover v. Craemer, 258 Iowa 29, 35, 137 N.W.2d 595, 599 (1965) ("palpably wrong”); Stuart v. Pilgrim,. 247 Iowa 709, 714, 74 N.W.2d 212, 216 (1956) ("only for the most cogent reasons”); Goodman v. Henry L. Doherty & Co., 218 Iowa 529, 531, 255 N.W. 667, 668 (1934) ("very exceptional case”); Lammars v. Chicago Great W. R.R. Co., 162 Iowa 211, 215, 143 N.W. 1097, 1098 (1913) ("weighty and sufficient reasons”); Remey v. Iowa Cent. R.R. Co., 116 Iowa 133, 158, 89 N.W. 218, 227 (1902) (Deemer, J., dissenting) ("great and imperious necessity”); Purczell v. Smidt, 21 Iowa 540, 558 (1866) (based on the "clearest conviction”); Doolittle v. Shelton, 1 Greene 272, 273 (1848) ("clearly erroneous”).

      . I surmise that the diversity of approaches to the physical injury rule arises from the murky intersection of Restatement (Second) of Agency section 213 (1958), Restatement (Second) of Torts section 317 (1965), and the common-law theory of respondeat superior. Each has been cited as a basis for recovery for negligent hiring in various contexts, but little effort has been made to fully explicate each theory or its underlying elements vis-a-vis the other two theories. In most cases, that type of analysis has been avoided by the adoption of one or the other of the theories without any discussion of how it may fit in with the other two theories. For example, we have adopted the Restatement (Second) of Agency section 213 and respondeat superior theories, but we have yet to recognize a cause of action based on Restatement (Second) of Torts section 317. See Godar v. Edwards, 588 N.W.2d 701, 705, 708-09 (Iowa 1999). The majority makes no effort to consider the role of this later Restate- , ment section, as other jurisdictions have, see,

        e.g., Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 533-34 (Minn. 1992), on the development of the tort or its specific reference to physical harm. One explanation for the physical injury requirement may relate to the element of the tort that requires the employer to foresee that the employee was a threat to injure others. The foreseeability of the threat is greater, making the imposition of a duty of care more understandable, when applied to physical injury as opposed to emotional or economic harm. See Godar, 588 N.W.2d at 708 (the scope of the duty is not unlimited, but is confined by the foreseeability of the risk). Moreover, our tort law has historically been reluctant to permit recovery under a negligence theory without physical injury. See Clark v. Estate of Rice, 653 N.W.2d 166, 170 (Iowa 2002) (noting that Iowa does not "recognize an independent claim for emotional distress based on negligence without some physical harm” (citation omitted)); Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 123 (Iowa 2001) ("[Mjisrepresentation based on negligent conduct has typically been addressed within the framework of a claim for negligence when the conduct has caused personal injury or property damage.” (citation omitted)). As an alternative to abandoning Graves, a better approach to the resolution of this case may be to recognize torts such as assault and defamation to fit within the scope of the physical injury rule based on the nature of the conduct that gives rise to the torts and the recognized interests they protect.