text:
    VIGILANT INSURANCE COMPANY, Appellee, v. ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant.
    No. 98-1636.
    Supreme Court of Iowa.
    April 26, 2000.
    Christopher P. Jannes of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Douglas A. Haag of Patterson, Lorent-zen, Duffield, Timmons, Irish, Becker & Ordway, L.L.P., Des Moines, for appellee.
   LARSON, Justice.

Brian J. McGrath was involved in a collision in Clarke County when his vehicle crossed the median on Interstate 35 and struck an oncoming car driven by Melinda Walker. Both McGrath and Walker were killed. Walker’s estate sued McGrath’s estate in a wrongful death action in federal district court. That case is not involved in this appeal. This case involves two liability insurers, Vigilant Insurance Company and Allied Property and Casualty Insurance Company, who are now arguing about whose policy provides excess coverage with respect to each other. The district court ruled that Vigilant was responsible only after the limits of the Allied policy were exhausted, and we agree.

I. Facts and Prior Proceedings.

The car driven by Brian was owned by his father, Joseph McGrath. The car itself was insured by Economy Preferred Insurance Company, with liability limits of $250,000 per person and $500,000 per accident. (Economy, it is agreed, is a primary carrier, and it is not involved in this appeal.) Brian, the driver, was also covered by Allied’s “personal auto policy” issued to his mother, Stephanie Gustafson, and her husband. This Allied policy had a limit of $500,000 per accident. The third policy involved is one written by Vigilant, an excess liability or “umbrella” policy with $1,000,000 in coverage.

Vigilant’s declaratory judgment action claimed that Vigilant’s umbrella policy was to be applied only after the Economy and Allied policies were exhausted. Allied disagrees, claiming the Vigilant umbrella coverage is excess only as to the Economy policy and that Allied’s coverage applies only after both the Economy and Vigilant policies are exhausted.

II. Principles of Review.

We review a district court’s grant of summary judgment for errors at law. Tenney v. Atlantic Assocs., 594 N.W.2d 11, 14 (Iowa 1999). Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. This is such a case.

III.The Policy Language.

Allied’s policy issued to Brian’s mother and her husband provides:

We will pay damages for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident.

Brian was an insured under this policy. Excess coverage was provided in this language in Allied’s policy:

If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.

Vigilant’s umbrella policy, issued to the car’s owner, Joseph McGrath, provides excess liability coverage in this language:

We will pay only for covered damages in excess of all underlying insurance covering those damages, even if the underlying coverage is for more than the minimum amount.
“Underlying insurance” includes all liability coverage other than this part of your policy'that applies to the covered damages, except for other insurance purchased in excess of this policy.

If other insurance is available, the Vigilant policy imposes the following condition:

Vehicles: When other liability insurance applies to covered damages, we will pay our share. Our share is the proportion that our amount of coverage bears to the total of all applicable amounts of coverage. However, for non-owned motorized land vehicles, this insurance is excess over any other insurance, except that written specifically to cover excess over the amount of coverage in this policy-
Personal and Excess: This insurance is excess over any other insurance except that written specifically to cover excess over the amount of coverage that applies in this policy.

In a similar ease we held that coverage under an umbrella policy similar to Vigilant’s was excess as to all primary liability insurance applicable to the event, despite “other insurance” language in a primary policy, identical to Allied’s policy in this case. We held that coverage under the umbrella policy would be excess as to any other collectable insurance on a non-owned vehicle. LeMars Mut. Ins. Co. v. Farm & City Ins. Co., 494 N.W.2d 216, 218-19 (Iowa 1992). In LeMars, Thomas Jaminet caused an accident while driving a car owned by his father, Robert. The driver was covered by his own insurance policy, issued by Farm & City Insurance Company, with a liability limit of $20,000. The car’s owner, Robert, had two policies: a primary insurance policy issued by Allied Insurance Group with a limit of $300,000 and an umbrella policy issued by LeMars Mutual Insurance Company with coverage of up to $1,000,000. Because the driver was a consent driver, he was an insured under both his father’s Allied policy and the father’s umbrella policy written by Le-Mars. Id. at 217.

Allied and LeMars settled with the injured claimant for $450,000. Of this amount Allied paid its limits of $300,000 and LeMars paid $150,000 under its umbrella policy. Farm & City, the driver’s own insurer, paid nothing toward the settlement. LeMars sued Farm & City, claiming the latter was a primary insurer and that LeMars’ umbrella policy was not implicated until Farm & City’s limits of $20,000 were exhausted. Farm & City’s defense was based on its policy provision regarding other insurance:

If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.

Id. Farm & City’s insured was driving a nonowned car at the time of the accident, so it argued that, under the plain wording of the above provision, its policy provided only excess coverage. Id. at 218. We disagreed and held the Farm & City policy was intended to be a primary insurance policy, which is defined as

“a policy purchased to be the first tier of insurance coverage, one which is intended to kick in the moment liability is established, but which may be excess in certain, specified situations.”

Id. (quoting Michael P. Sullivan, Annotation, Automobile Insurance: Umbrella or Catastrophe Policy Automobile Liability Coverage as Affected By Primary Policy “Other Insurance” Clause, 67 A.L.R.4th 14, 16 (1989) [hereinafter Annotation]). In contrast to the primary insurance provided by Farm & City, the umbrella policy provided by LeMars was intended to be excess in nearly all cases, under this provision:

“Other Insurance. This insurance is in excess of any other valid and collectible insurance except insurance that specifies it is in excess of our Limit of Liability.”

LeMars Mut. Ins. Co., 494 N.W.2d at 218.

Despite Farm <& City’s policy provision appearing to make it excess as to all other policies, we held it had to be read in context with the whole policy. Id. When their policies were read as a whole, it was clear Farm & City’s coverage was intended to be primary, while that of the Le-Mars policy was to be umbrella coverage, excess as to all other insurance. We said a primary carrier “cannot hide behind an excess insurance clause in its ‘other insurance’ provision to require an umbrella insurer to cover liability for its insured.” Id. at 219. In LeMars we looked to the underlying purposes of the policies and concluded the umbrella policy was not intended to supplant the primary coverage of the Farm & City policy. Id.

Vigilant relies on LeMars, claiming its umbrella policy is excess as to all other policies, including Allied’s. Allied responds that the “other insurance” provision of Vigilant’s umbrella policy is inapplicable because of this sentence in the Vigilant policy:

This part of your [umbrella] Policy provides you with liability coverage in excess of your underlying insurance anywhere in the world unless stated otherwise or an exclusion applies.

(Emphasis added.)

Allied claims the “you” and “your” in this provision refer to Joseph McGrath because he was the named insured under the Vigilant policy. According to Allied’s argument, because Joseph was not an insured under Allied’s policy, that policy was not “your” insurance within the meaning of Vigilant’s other insurance provision. Therefore, according to it, Vigilant’s policy was not excess as to Allied.

When the “you” and “your” language of Vigilant’s policy is read in isolation, as Allied urges, it gives some support to its argument that Vigilant’s excess insurance clause is not applicable to Allied. However, this argument must be rejected in light of the language of the policy when it is read as a whole. Specifically, the umbrella coverage in Vigilant’s policy provides it is “in excess of all underlying insurance covering those damages.” It then provides a definition of “underlying coverage,” quoted above, that clearly includes the Allied policy. Also, as in LeMars, we look to the intent of the parties to an umbrella policy: a policy purchased as the final tier of coverage, one “intended to be excess over all other available insurance.” Id. at 218 (quoting Annotation, 67 A.L.R.4th at 16).

We believe the policy language in question, which provides coverage in excess of “your underlying insurance,” should be interpreted to mean the policy is excess as to any insurance that applies to a covered event that will serve to reduce the amount of the umbrella insurer’s exposure. Allied’s policy, which is primary, would qualify as underlying insurance under that definition because it would reduce any damages Vigilant might be called on to pay, up to Allied’s liability limit of $500,-000. We conclude Allied’s policy is “underlying insurance” for purposes of applying Vigilant’s umbrella coverage and therefore affirm the summary judgment for Vigilant.

AFFIRMED.

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


source: Caselaw Access Project

author: CADY, Justice. LAVORATO, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Anne E. IZZOLENA, Appellant.
    No. 99-683.
    Supreme Court of Iowa.
    April 26, 2000.

      Jeffrey T. Mains of Benzoni Law Office, P.L.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Joe Weeg, Assistant County Attorney, for appellee.
   CADY, Justice.

Anne Izzolena appeals from the sentence imposed by the district court following her conviction for involuntary manslaughter in violation of Iowa Code section 707.6A(2)(a) (Supp.1997). She claims the restitution award imposed by the district court under Iowa Code section 910.3B violates due process, double jeopardy, and the prohibition against excessive fines. We affirm.

I. Background Facts and Proceedings.

Anne Izzolena was driving her Volvo automobile on a rural road in southeast Polk County in the early morning hours of January 3, 1998, after a night of drinking alcoholic beverages. Steve Shank occupied the passenger seat of the vehicle. He was not wearing a seatbelt. The weather was unseasonably warm, and visibility was clear.

Izzolena approached a “T”-intersection while traveling approximately fifty miles per hour. The intersection was marked with a stop sign which directed Izzolena to stop at the intersection. Izzolena proceeded through the intersection without applying the brakes of the vehicle and smashed the front of the vehicle into a tree a short distance off the roadway. The impact forced the engine of the vehicle into the passenger compartment and violently threw the occupants forward.

Numerous law enforcement and medical personnel arrived at the scene of the crash. Izzolena was transported to a Des Moines hospital by air ambulance for medical treatment. Shank was extricated from the mangled vehicle with the aid of hydraulic equipment. He died at the scene.

A urine sample obtained at the hospital revealed Izzolena had an alcohol concentration of .184. Shank died with a blood alcohol content of .340.

Izzolena was charged with vehicular homicide under section 707.6A(1) and 707.6A(2)(a). She waived her right to a trial by jury and agreed to a bench trial on stipulated evidence. The district court found her guilty of the crime of unintentionally causing the death of another by operating a motor vehicle in a reckless manner in violation of section 707.6A(2)(a).

Izzolena was sentenced by the district court to an indeterminate term of incarceration not to exceed ten years. The district court also imposed a victim restitution award under section 910.3B of $150,000.

Izzolena filed an appeal. She claims the victim restitution award imposed by the district court violates the Double Jeopardy, Excessive Fines, and Due Process Clauses of the United States and Iowa Constitutions.

II. Scope of Review.

We review constitutional issues de novo. State v. Hamrick, 595 N.W.2d 492, 493 (Iowa 1999).

III. Victim Restitution.

Our legislature has enacted a comprehensive scheme for restitution in all criminal cases which result in a judgment of conviction, except simple misdemeanor traffic convictions. See generally Iowa Code ch. 910. This chapter requires the sentencing court to order offenders to make restitution for their criminal activities to the victims of the crime, and to the clerk of court. See Iowa Code § 910.2.

Restitution for criminal activities, therefore, is broadly defined by statute to not only mean “payment of pecuniary damages to a victim” but also

fines, penalties, and surcharges, the contribution of funds to a local anticrime organization which provided assistance to law enforcement in an offender’s case, the payment of crime victim compensation program reimbursements, ... court costs including ... court-appointed attorney’s fees, or the expense of a public defender, and the performance of a public service by an offender in an amount set by the court when the offender cannot reasonably pay all or part of the court costs including ... court-appointed attorney’s fees, or the expense of a public defender.

Id. § 910.1(4).

“Pecuniary damages” is defined by our legislature to mean
all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.

Id. § 910.1(3). Pecuniary damages also include “damages for wrongful death and expenses incurred for psychiatric or psychological services or counseling or other counseling for the victim which became necessary as a direct result of the criminal activity.” Id. A victim is defined by statute to mean “a person who has suffered pecuniary damages as a result of the offender’s activities.” Id. § 910.1(5).

Our legislature recently expanded the scope of restitution to require an offender convicted of a felony resulting in death to pay at least $150,000 in restitution to the victim’s estate. Id. § 910.3B(1). This award is in addition to victim restitution for pecuniary damage under section 910.1(4). The statute provides:

In all criminal cases in which the offender is convicted of a felony in which the act or acts committed by the offender caused the death of another person, in addition to the amount determined to be payable and ordered to be paid to a victim for pecuniary damages, as defined under section 910.1, and determined under section 910.3, the court shall also order the offender to pay at least one hundred fifty thousand dollars in restitution to the victim’s estate. The obligation to pay the additional amount shall not be dischargeable in any proceeding under the federal Bankruptcy Act. Payment of the additional amount shall have the same priority as payment of a victim’s pecuniary damages under section 910.2, in the offender’s plan for restitution.

Id.

The restitution award under section 910.3B does not impede or supersede the right to pursue additional damages in a civil action arising from the same facts. Id. § 910.3B(2). Evidence of the entry of a restitution award and the amount of the award is inadmissible in any subsequent civil action arising from the same set of facts. Id. On the other hand, an offender ordered to pay restitution under section 910.3B is precluded from denying the elements of the offense which resulted in the award in any subsequent civil action arising from the same facts or event. Id. § 910.3B(3). A restitution award under chapter 910 is also offset against any judgment in favor of a victim in any subsequent civil action arising from the same facts. Id. § 910.8 (1997).

Izzolena challenges the restitution award entered by the district court as a part of the sentencing order. She claims the award constitutes an excessive fíne in violation to the Eighth Amendment of the United States Constitution and article I, section 17 of the Iowa Constitution. She also alleges it violates the Double Jeopardy Clauses of both constitutions as well as her rights under the Due Process Clause.

IY. Constitutional Claims.

A. Excessive Fine.

The Eighth Amendment of the United States Constitution reads: “Excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual punishment inflicted.” Similarly, article I, section 17 of the Iowa Constitution reads: “Excessive bail shall not be required; excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted.” The similarity between the two clauses permits us to look to the interpretations by the Unites States Supreme Court for guidance in interpreting our own clause. See Davenport Water Co. v. Iowa State Commerce Comm’n, 190 N.W.2d 583, 593 (Iowa 1971).

The Supreme Court has not specifically considered whether victim restitution ordered as a part of a sentence in a criminal case implicates the Excessive Fines Clause. In fact, the Supreme Court has had few opportunities to consider the application of the Excessive Fines Clause. See Browning-Ferris Indus, v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 2915, 106 L.Ed.2d 219, 232 (1989).

Nevertheless, a few helpful principles can be distilled from those cases which have addressed the clause. First, the Excessive Fines Clause does not apply to punitive damages in cases between private parties. See id. Instead, the clause was intended to limit the steps a government may take against an individual in imposing excessive monetary sanctions. Id. at 275, 109 S.Ct. at 2920, 106 L.Ed.2d at 238. Second, the clause is implicated when government has exercised its power to extract payments as punishment for an offense, whether the underlying proceeding is civil or criminal. Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 2805, 125 L.Ed.2d 488, 497 (1993); see In re H.E.W., Inc., 530 N.W.2d 460, 464 (Iowa 1995). Thus, the term “fine” not only embraces those monetary sanctions traditionally imposed in a criminal case, but other sanctions which constitute punishment for an offense. United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 2033, 141 L.Ed.2d 314, 325 (1998).

Support for these principles is found in the history of the Excessive Fines Clause. The Eighth Amendment was based directly upon article I, section 9 of the Virginia Declaration of Rights, which was derived from the 1689 English Declaration of Rights. See Browning-Ferris, 492 U.S. at 266, 109 S.Ct. at 2915, 106 L.Ed.2d at 233. Section 10 of the English Bill of Rights states “Excessive bail ought not be required, nor excessive fines imposed; nor cruel and unusual punishment inflicted.” 1 Wm. & Mary 2d Sess. ch. 2, 3 Stat. at Large 440, 441 (1689). It was adopted to curb the English judges under the Stuarts’ reigns from imposing heavy fines upon the king’s enemies. See L. Schwoerer, The Declaration of Rights, 1689, at 91 (1981). The framers of our constitution were aware of the abuses that led to the 1689 Bill of Rights. See 2 J. Story, Commentaries on the Constitution of the United States 624 (T. Cooley 4th ed. 1873) (the Eighth Amendment “was adopted as an admonition to all departments of the national government, to warn them against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts”).

Additionally, at the time of the enactment of the Eighth Amendment, the word “fine” connoted “payment to a sovereign as punishment for some offense.” Bajakajian, 524 U.S. at 327, 118 S.Ct. at 2033, 141 L.Ed.2d at 325 (quoting Browning-Ferris, 492 U.S. at 265, 109 S.Ct. at 2915, 106 L.Ed.2d at 232). “Fines,” then, as now, were sanctions imposed in criminal actions. Browning-Ferris, 492 U.S. at 265, 109 S.Ct. at 2915, 106 L.Ed.2d at 232.

This history and common understanding of the language used to articulate the Excessive Fines Clause reveals that the clear concern of the framers of our constitution was to limit the government’s power to punish. Austin, 509 U.S. at 609-10, 113 S.Ct. at 2805, 125 L.Ed.2d at 497; Browning-Ferris, 492 U.S. at 265, 109 S.Ct. at 2915, 106 L.Ed.2d at 232. The clause served to limit the ability of government to use its prosecutorial powers to impose excessive monetary sanctions. Browning-Ferris, 492 U.S. at 275, 109 S.Ct. at 2920, 106 L.Ed.2d at 238. Thus, the test developed to determine whether a particular sanction falls within the Excessive Fines Clause as a “fine” is whether it is, at least in part, punishment. Austin, 509 U.S. at 610, 113 S.Ct. at 2805-06, 125 L.Ed.2d at 498; see Bajakajian, 524 U.S. at 327, 118 S.Ct. at 2033, 141 L.Ed.2d at 325.

We have previously acknowledged that it is not always clear whether restitution constitutes a fine, a civil claim, or some hybrid. State v. Mayberry, 415 N.W.2d 644, 646 (Iowa 1987). In fact, we have recognized that the purpose of restitution is two-fold. It not only serves to protect the public by compensating victims for criminal activities, but it also serves to rehabilitate the defendant. State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986). Restitution goes beyond revenue recovery and is designed to instill responsibility in criminal offenders. State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985).

Restitution “forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without direct regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.”

Mayberry, 415 N.W.2d at 646-47 (quoting Kelly v. Robinson, 479 U.S. 36, 49 n. 10, 107 S.Ct. 353, 360 n. 10, 93 L.Ed.2d 216, 228 n. 10 (1986) (citing Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L.Rev. 931, 937-41 (1984))).

Moreover, an examination of the specific restitution award under section 910.3B reveals several punitive elements. It is awarded in addition to separate restitution for pecuniary damages. Iowa Code § 910.3B(1). Although pecuniary damages excludes some damages normally recoverable in civil actions, there is no-indication our legislature intended restitution under section 910.3B to take the place of the damages excluded from restitution for pecuniary damages. Furthermore, restitution under section 910.3B establishes a minimum threshold amount of $150,000 for all cases, with no required proof of evidence to support damages excluded from the definition of pecuniary damages. Additionally, the restitution imposed under section 910.3B is not dischargeable in bankruptcy. See Mayberry, 415 N.W.2d at 646.

It is also important to recognize that fines in criminal cases likely evolved from restitution, when amounts paid to criminal victims as restitution became payable to the king instead. See id. at 647 (citing State v. Hart, 299 Or. 128, 699 P.2d 1113, 1115 (1985)); see also Wolfgang, Victim Compensation in Crimes of Personal Violence, 50 Minn. L.Rev. 223, 228 (1965). Thus, restitution and fines share a common history as sanctions in a criminal case.

Notwithstanding, the State argues that a punishment must be payable to the State to constitute a fine under the Excessive Fines Clause. Restitution under section 910.3B, of course, is payable to the victim.

In rejecting a claim that the Excessive Fines Clause applied to an award of punitive damages in a civil case between private parties, the Supreme Court stated “The Excessive Fines Clause was intended to limit those fines only directly imposed by, and payable to, the government.” Browning-Ferris, 492 U.S. at 268, 109 5.Ct. at 2916, 106 L.Ed.2d at 234. Although most monetary sanctions in criminal cases are payable to the government, the greater concern of the Excessive Fines Clause was not the financial gain of the government, but to prevent the government from abusing its power to punish an offender. Id. at 266-67, 109 S.Ct. at 2915-16, 106 L.Ed.2d at 232-33; see Austin, 509 U.S. at 606-07, 113 S.Ct. at 2804, 125 L.Ed.2d at 495. The idea was to limit government power to punish an individual, not necessarily limit its power to raise revenue. Thus, the focus of the clause is on the impact of the punishment to the individual. See Browning-Ferris, 492 U.S. at 275, 109 S.Ct. at 2920, 106 L.Ed.2d at 238. We do not believe the State can make an end run around the Excessive Fines Clause by simply making a punishment payable to a victim.

Even though a sanction may serve a remedial purpose, it is still subject to the Excessive Fines Clause if it can only be explained as serving in part to punish. Austin, 509 U.S. at 621-22, 113 S.Ct. at 2812, 125 L.Ed.2d at 505. Accordingly, we conclude the restitution award under section 910.3B does not only serve a remedial purpose but also serves other purposes normally associated with punishment such as retribution and deterrence. The award is a “fine” within the Eighth Amendment of the United States Constitution and article I, section 17 of the Iowa Constitution.

Having determined that the Excessive Fines Clause applies to victim restitution awards, the question turns to whether the sanction is excessive. The test is whether the penalty is “grossly disproportional to the gravity of the defendant’s offense.” Bajakajian, 524 U.S. at 337, 118 S.Ct. at 2038, 141 L.Ed.2d at 331.

Before applying this standard, we must recognize three important limitations. The first limitation is that judgments concerning the appropriate punishment for an offense rests in the first instance with the legislature. Id. at 336, 118 S.Ct. at 2037, 141 L.Ed.2d at 330. Thus, we must give substantial deference to our legislators’ choice of penalties for criminal offenses. State v. Ramirez, 597 N.W.2d 795, 797 (Iowa 1999); see also State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998) (legislators are entitled to “wide latitude in prescribing their punishments” (quoting Simmons v. Iowa 28 F.3d 1478, 1483 (8th Cir.1994))). The second limitation is that any judicial de-termination of the gravity of a criminal offense is inherently imprecise. Id. This, of course, relates in part to our first limitation and reminds us not to substitute our judgment for that of our legislature. Finally, we are constrained by the absence of guiding authority. The issue we face is one of first impression in this state, and we are unable to find any state in the nation with a similar statute for restitution. Additionally, our United States Supreme Court has never applied the grossly disproportionate test under the Excessive Fines Clause to an award of restitution in a criminal case. But see Bajakajian, 524 U.S. at 349, 118 S.Ct. at 2044, 141 L.Ed.2d at 339 (Kennedy, J., dissenting) (forfeitures in criminal cases are in the nature of restitution).

In applying the test of proportionality to the statute in this case, we first recognize that the restitution award does not apply to all crimes resulting in the death of another. Rather, it applies only to felonious acts resulting in death. See Iowa Code § 910.3B(1). Although this includes involuntary manslaughter in violation of Iowa Code section 707.5, we have previously found recklessness remains a necessary element of proof in all involuntary manslaughter convictions. See State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980). Thus, the restitution award under the statute could not be imposed in a case involving an unintentional or negligent offender. Instead, it is limited to an offender who has demonstrated a willful and wanton disregard for the rights of others in the commission of the crime. See State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991). Crimes committed with willful or wanton disregard for the rights of other persons are extremely serious.

We also recognize that the statute only applies to offenders who committed a crime which caused the death of another human. The seriousness of this harm, in the final analysis, is unmatched in the broad spectrum of crimes. See Lamphere v. State, 348 N.W.2d 212, 220 (Iowa 1984) (murder imposes the greatest harm to the victim). The primacy of human life among all other moral values is virtually undisputed by the world’s major religions, and the taking of innocent life is considered the greatest universal wrong. See Roger C. Crampton and Lori P. Knowles, Professional Secrecy and Its Exceptions: Spaulding v. Zimmerman Revisited, 83 Minn. L.Rev. 63, 87 (1998). In the context of the harm caused, the gravity of offenses under section 910.3B is unparalleled.

Finally, in considering the broad discretion of our legislature in determining the penalties for a given crime, we observe there are numerous other crimes to which enormous fines have been attached. These fines apply to crimes, like those covered under section 910.3B, which are most devastating to society. See Iowa Code §§ 124.401(l)(a) (1997) (fine up to one million dollars for major quantities of drugs); 124.401(l)(b) (fine of not less than five thousand dollars nor more than one hundred thousand dollars for moderate quantities of drugs); 124.401(l)(c) (fine not less than one thousand dollars nor more than fifty thousand dollars for lesser quantities of drugs); see also id. §§ 455B.146A(1) (1997) (fine of not more than ten thousand dollars per day for polluting air quality in Iowa); 455B.191(2) (fine of not more than twenty-five thousand dollars per day for water pollution). The stiff fines for these other crimes helps place the penalty imposed by section 910.3B in context, and reveals the vast parameters of the appropriate punishment for a criminal offense. Thus, in considering the excessiveness of a penalty, we must be alert to apply a constitutional standard which recognizes the different roles between the legislature and the judiciary. Our legislature is free to recognize the seriousness of certain crimes and impose greater punishment, or as under this statute, supplement criminal punishment for serious crimes by imposing mandatory restitution.

Considering the nature of the offense, resulting harm, and the great deference afforded the legislature, we conclude section 910.3B does not on its face violate the Excessive Fines Clause of our state and federal constitutions. The minimum restitution award of $150,000 is high, but not grossly disproportionate to the gravity of the offenses covered under the statute. We make no determination whether any restitution award in excess of $150,000 would violate the Excessive Fines Clause. We also do not decide whether any specific circumstance of this case would render the restitution award as applied to Izzolena violative of the Excessive Fines Clause. Izzolena did not raise the issue in district court or on appeal. Notwithstanding, any case-specific analysis would primarily focus on the amount of the punishment as it relates to the particular circumstances of the offense. Bajakajian, 524 U.S. at 334, 118 S.Ct. at 2036, 141 L.Ed.2d at 329 (test of proportionality means the amount of the punishment must bear some relationship to the gravity of the offense it is designed to punish). The manner in which the amount of a particular fine impacts a particular offender is not the focus of the test. Klawonn, 609 N.W.2d 515 (Iowa 2000); see Alexander v. United States, 509 U.S. 544, 559, 113 S.Ct. 2766, 2776, 125 L.Ed.2d 441, 456 (1993), cert. denied, 522 U.S. 869, 118 S.Ct. 180, 139 L.Ed.2d 120 (1997) (the question is whether the forfeiture was excessive in light of the criminal activity engaged in by the offender); see also State v. Russell, 216 N.W.2d 355, 356 (Iowa 1974) (rejected claim of excessive sentence where possibility of imprisonment until age ninety-six); State v. Van Klaveren, 208 Iowa 867, 870-71, 226 N.W. 81, 83 (1929) (sentence not excessive because it would undermine defendant’s health).

B. Double Jeopardy.

Izzolena alleges the imposition of the $150,000 civil restitution award payable to Shank’s estate constitutes multiple punishments for the same offense. Izzolena argues the “restitution” award found in section 910.3B is actually a fine, punitive in nature, and thus additional punishment.

The Fifth Amendment of the United States Constitution, commonly known as the Double Jeopardy Clause, states, “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.... ” U.S. Const, amend. Y. This provision is binding upon the states through the Fourteenth Amendment. See U.S. Const, amend. XIV, § 1.

This clause has been interpreted to protect against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496 (1989); State v. Wissing, 528 N.W.2d 561, 565 (Iowa 1995). Article I, section 12 of our constitution includes similar protections, stating, “No person shall after acquittal, be tried for the same offence.” See Iowa Const, art. I, § 12.

Important in the analysis of the Double Jeopardy Clause is that it protects only against the imposition of multiple criminal punishments for the same offense. Hudson, 522 U.S. at 98, 118 S.Ct. at 493, 139 L.Ed.2d at 458. Although we have determined the award under section 910.3B to be punishment under the Excessive Fines Clause, we need not consider whether it is also punishment under the Double Jeopardy Clause. The Double Jeopardy Clause applies only to multiple criminal punishments. Restitution under section 910.3B is a part of the sentencing process. See State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996) (recognizing an indigent defendant’s right to counsel at the restitution hearing, as part of the sentencing process); State v. Wagner, 484 N.W.2d 212, 217 (Iowa App.1992). While Iowa Code section 910.7 permits a defendant to challenge a restitution award in a subsequent restitution hearing, this does not change the fact the restitution award is a part of the initial sentence. See Alspach, 554 N.W.2d at 883. Thus, the imposition of a restitution award does not implicate multiple punishments for the same offense.

In this case, Izzolena’s actions resulted in the death of Shank. Through the enactment of Iowa Code section 910.3B, the legislature has expressly included a mandatory restitution award in the amount of “at least $150,000” payable to the victim’s estate which is assessed at sentencing. See Iowa Code § 910.3B(1). This is distinguishable from a subsequent fine, after the conviction and sentence have been imposed. See Department of Revenue v. Kurth Ranch, 511 U.S. 767, 784, 114 S.Ct. 1937, 1948, 128 L.Ed.2d 767, 781-82 (1994) (“This drug tax ... is a second punishment ... [and] must be imposed during the first prosecution or not at all.”).

The restitution award was not imposed in a subsequent proceeding, but rather as a function of the original sentencing process. Thus, the Double Jeopardy Clause was not implicated. We find Izzolena’s challenge to section 910.3B on double jeopardy grounds has no merit.

C. Due Process.

Izzolena challenges the restitution award under section 910.3B as violative of her due process rights guaranteed by the United States and Iowa Constitutions. See U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 9. Due process protections can be broken down into “procedural” due process and “substantive” due process rights.

Izzolena argues section 910.3B provides no opportunity for a hearing on the amount prior to the imposition of the restitution order, which renders it unconstitutional. The State responds by drawing our attention to section 910.7 which provides the defendant the opportunity for a restitution hearing at any time during the pendency of the restitution plan. See Iowa Code § 910.7 (1997).

Procedural due process requires notice and the opportunity to be heard prior to depriving one of life, liberty, or property. Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). However, “due process ‘is not a technical conception with fixed content unrelated to time, place and circumstances.’ ” Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236 (1961) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817, 849 (1951) (Frankfurter, J., concurring)). Rather, it is “flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972).

In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court identified relevant criteria to look for in determining what process is due prior to depriving one of a property interest. The Court said a procedural due process analysis must balance (1) the private interest affected, (2) the risk of erroneous deprivation and probable value, if any, of additional or substitute procedural safeguards, and (3) the government’s interest. Id. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.

Applying this test to these facts, the private interest here is the property interest in the offender’s assets and financial future. Section 910.3B mandates a minimum award of $150,000 to the estate, and the financial ramifications upon the offender are obvious.

However, the risk of erroneous deprivation of this interest through the available procedures is virtually non-existent. In order for this award to be imposed upon an individual, guilt beyond a reasonable doubt must be shown at trial, or a plea of guilty must be accepted for the underlying felonious offense. Additionally, the commission of the offense must have been the proximate cause of the victim’s death. And finally, the defendant is afforded the opportunity for a hearing once the court issues the restitution order, at any time during the pendency of the order. See Iowa Code § 910.7 (1997). Adding additional or substitute procedures to the process would not provide any additional safeguards to the defendant, as sufficient procedure with respect to the imposition of the award are currently in place.

Finally, the government’s interest in the process is viewed in light of the public interest. Mathews, 424 U.S. at 347, 96 S.Ct. at 909, 47 L.Ed.2d at 40. This includes the administrative burden and other societal costs associated with requiring an evidentiary hearing as a matter of right in all cases. Id. The most obvious burden would be the increased number of hearings. Furthermore, even if a pre-imposition hearing was provided, defendants would also be entitled to a subsequent 910.7 hearing. A pre-imposition hearing would also have little or no effect on the outcome because the award under section 910.3B includes a mandatory minimum level.

We recognize the broad discretion we afford the legislature in fashioning punishments and penalties for crimes as it sees fit. State v. Rubino, 602 N.W.2d 558, 564 (Iowa 1999); Lara, 580 N.W.2d at 785. However, due process can still be violated when such “tends to shock the sense of fair play.” Howard v. United States, 372 F.2d 294, 301 (9th Cir.1967). We do not find the award under section 910.3B “shocks the sense of fair play” such that the defendant is denied any due process rights.

IV. Conclusion.

We find the minimum restitution award payable to the victim’s estate does not constitute an excessive fine under the federal and state constitutions. Furthermore, it is not a multiple punishment in violation of double jeopardy protections. Finally, section 910.3B does not violate notions of due process. We affirm.

AFFIRMED.

All justices concur except LAYORATO, J., who dissents and is joined by SNELL and TERNUS, JJ., and CARTER, J., who takes no part.

LAVORATO, Justice

(dissenting).

I agree with the majority that the $150,-000 minimum restitution under Iowa Code section 910.4 is a “fine” within the Eighth Amendment to the United States Constitution and article I, section 17 of the Iowa Constitution. My agreement, however, stops there. Contrary to the majority, I believe, for reasons that follow, that the fine is excessive and therefore unconstitutional under those constitutional provisions.

Two years ago, for the first time, the United States Supreme Court applied the Excessive Fines Clause of the Eighth Amendment. See United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 2033, 141 L.Ed.2d 314, 325 (1998). I think Bajakajian provides a framework of analysis here. For that reason, I think it is important for me to discuss it in detail.

In Bajakajian, the defendant, with his family, attempted to leave the United States without reporting, as required by federal law (31 U.S.C. § 5316(a)(1)(A)), that he was transporting more than $10,-000 in currency. Bajakajian, 524 U.S. at 324, 118 S.Ct. at 2031, 141 L.Ed.2d at 323. The federal statute in question provides that a person convicted of willfully violating this reporting requirement “shall be fined not more than $250,000, or imprisoned for not more than five years, or both.” 31 U.S.C. § 5322(a). In addition, 18 U.S.C. § 982(a)(1) directs the court in imposing sentence on a person convicted of violating the reporting requirement to order the defendant to forfeit “to the United States any property, real or personal, involved in such offense, or any property traceable to such property.”

When arrested, Bajakajian had $357,144 in cash in his possession. Bajakajian, 524 U.S. at 325, 118 S.Ct. at 2032, 141 L.Ed.2d at 323. He pled guilty to the failure-to-report offense. Id. at 325, 118 S.Ct. at 2032, 141 L.Ed.2d at 324. Although section 982(a)(1) directed sentencing courts to impose full forfeiture, the federal district court concluded that forfeiture of the entire $357,144 would be grossly disproportionate to the offense in question and would therefore violate the Excessive Fines Clause. Id. at 326, 118 S.Ct. at 2032, 141 L.Ed.2d at 324. The court instead ordered forfeiture of $15,000, in addition to a sentence of three years of probation and a fine of $5000 (the maximum fine under the Sentencing Guidelines). Id. The government appealed, seeking full forfeiture, and the Ninth Circuit Court of Appeals affirmed. Id.

The Supreme Court granted certiorari. The Court had little trouble concluding the forfeiture provision constituted punishment and was therefore a “fine” within the meaning of the Excessive Fines Clause. Id. at 328, 334, 118 S.Ct. at 2033, 2036, 141 L.Ed.2d at 325, 329.

The Court next considered whether the fine was “excessive” — precisely the issue in the case before us. The Court’s analysis began with a recognition that “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” Id. at 334, 118 S.Ct. at 2036, 141 L.Ed.2d at 329.

The Court recognized that until now it had never articulated a standard for determining whether a punitive forfeiture is constitutionally excessive. See id. The Court adopted the standard of gross dis-proportionality articulated in its cruel-and-unusual punishment precedents under the Eighth Amendment. Id. at 334-36, 118 S.Ct. at 2036-37, 141 L.Ed.2d at 330-31. The Court adopted a gross rather than a strict disproportionality standard for two reasons. First, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” Id. at 336, 118 S.Ct. at 2037, 141 L.Ed.2d at 330. Second, “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise.” Id.

The Court directed district courts and the courts of appeal on how to apply the standard:

[They] must compare the amount of the forfeiture to the gravity of the defendant’s offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.

Id. at 336-37, 118 S.Ct. at 2037-38, 141 L.Ed.2d at 331.

Using this standard, the Court concluded that the forfeiture of Bajakajian’s $357,-144 would violate the Excessive Fines Clause. Id. In support of its conclusion, the court gave the following reasons. First, Bajakajian’s crime was solely a reporting offense: He could legally transport the money out of the country if he reported it. Id.

Second, Bajakajian’s violation was unrelated to any other illegal activities. Id. at 338, 118 S.Ct. at 2038, 141 L.Ed.2d at 332. The money was the proceeds of legal activity, and Bajakajian was going to use the money to repay a lawful debt. Id. Bajaka-jian did not fit the profile of persons for whom the statute was intended: money launderers, drug traffickers, and tax evaders. Id.

Third, under the Sentencing Guidelines, the maximum sentence that could have been imposed on Bajakajian was six months, while the maximum fine was $5000. Id. The Court viewed these penalties as “confirming] a minimal level of culpability.” Id. at 338-39, 118 S.Ct. at 2038,141 L.Ed.2d at 332.

Last, the harm that Bajakajian caused was also minimal. Id. at 339, 118 S.Ct. at 2039, 141 L.Ed.2d at 332. The only victim was the Government, and the Government was affected in a relatively minor way — it was deprived of information that $357,144 had left the country. Id.

The Court’s analysis in Bajakajian makes clear that determining what is grossly disproportional and therefore excessive must be done on a case-by-ease basis by the sentencing court. This is in direct opposition to the majority’s conclusion here that a $150,000 fine is per se constitutionally acceptable in every case. The majority’s per se approach is also in direct conflict with the Supreme Court pronouncement that “no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983).

Contrary to proportionality principles, the majority’s per se approach (1) gives no consideration as to how the offense occurred and (2) prevents any consideration of the degree of culpability. Today, this court decides a case that illustrates why the majority’s per se approach is not only contrary to proportionality principles but is unfair. See State v. Rohm, 609 N.W.2d 504, 512 (Iowa 2000).

In Rohm, a mother was convicted of involuntary manslaughter because of her passive conduct in allowing alcohol to remain accessible to minors. Two members of this court believed the evidence was not sufficient to sustain the conviction. See id. (Ternus, J., dissenting). Given the circumstances surrounding the offense and the closeness of the decision, one could make a compelling argument that the $150,000 fine assessed against the defendant is excessive. Yet, under -the majority’s per se approach, she will never have the opportunity to make that argument.

The majority’s per se approach also denies a defendant the opportunity to show that the $150,000 fine would deprive the defendant of a livelihood. This is especially important because the fine is nondis-chargeable in bankruptcy. Although in Bajakajian the defendant did not raise the deprivation-of-livelihood argument, the Court hinted that such a consideration is relevant. See Bajakajian, 524 U.S. at 340 n.15, 118 S.Ct. at 2039 n.15, 141 L.Ed.2d at 333 n.15. The Court also hinted that a defendant’s wealth and income are relevant, as they are on the question of punitive damages in civil cases. Id.

Finally, the legislature itself has indicated that a . person convicted of involuntary manslaughter may not be so culpable as to merit a $150,000 fine. Apart from the $150,000 restitution award, the legislature has determined that the maximum fine that may be imposed for such a crime is $7500. See Iowa Code § 902.9(4). The disparity between the $150,000 and the $7500 is telling.

I would vacate the restitution order and remand the case for a meaningful hearing on the $150,000 restitution order, at which the State and the defendant should be allowed to present evidence and argument as to what the restitution should be. Using the Bajakajian standard and analysis, the district court should then determine what amount of restitution is constitutionally appropriate.

SNELL and TERNUS, JJ., join this dissent.

      . All references lo the Iowa Code in this decision are to the 1997 Supplement to the Iowa Code, unless otherwise noted.

      . The damages which may be recovered in a wrongful death action are limited by the statute which creates the right to bring the action. 22A Am.Jur.2d Death § 215, at 276 (1988). In Iowa, a wrongful death action survives the decedent and is brought by an administrator for the estate. See Iowa Code § 611.20. Although brief and general, section 611.20 has provided the courts with the ability to determine the details of wrongful death actions in Iowa. See Note, Wrongful Death Damages in Iowa, 48 Iowa L.Rev. 666, 667-68 (1963). The ultimate jury award is for one sum, however the jury is generally instructed on the following damages: loss of future earnings (the amount the deceased would have contributed to the estate reduced to present value), see Soreide v. Vilas & Co., 247 Iowa 1139, 1153, 78 N.W.2d 41, 49 (1956); loss of past earnings (if the decedent did not die immediately and was unable to work), see Miller v. McCoy Truck Lines, Inc., 243 Iowa 483, 491, 52 N.W.2d 62, 66 (1952) (personal injury accident with analogous damage award); pain and suffering damages, see Fitzgerald v. Hale, 247 Iowa 1194, 1205, 78 N.W.2d 509, 515 (1956) (hot a wrongful death action, but an analogous action for pain and suffering after the decedent had died); expenses incurred as a result of the wrongful act, including medical and hospital bills, see Railsback v. Buesch, 253 Iowa 1064, 114 N.W.2d 916, 920 (1962), in order to recover these expenses they must be reasonable and necessary, see Ege v. Born, 212 Iowa 1138, 1149, 236 N.W. 75, 82 (1931); finally interest on funeral expenses are recoverable as well, see Brady v. Haw, 187 Iowa 501, 506, 174 N.W. 331, 332 (1919) (since funeral would have occurred sometime in life, this only accelerated it; only entitled to interest on reasonable burial expense). In addition to the damages the administrator of the estate can recover on behalf of the estate, loss of consortium damages are recoverable by the surviving spouse, individually, as well as by surviving children. See Iowa Code § 613.15 (allows an injured person to recover "the value of services and support as spouse or parent, or both”); see also Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983) (action on behalf of surviving children brought by administrator of estate). Parents may also recover loss of consortium damages for the death of minor children. See Iowa R. Civ. P. 8 ("A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.”). Finally, if a person dies as a result of another's willful, wanton, or malicious actions, punitive damages may be recovered as well. See Berenger v. Frink, 314 N.W.2d 388, 393 (Iowa 1982); see also Sebastian v. Wood, 246 Iowa 94, 100-01, 66 N.W.2d 841, 844-45 (1954).

      . The accepted meanings of "fine” in 1680's England and 1780’s Colonial America were essentially the same. See Browning-Ferris, 492 U.S. at 267 n. 10, 109 S.Ct. at 2916 n. 10, 106 L.Ed.2d at 233 n. 10 (referencing n. 6 (citing 1 E. Coke Institutes 126b and 2 T. Cunningham, A New and Complete-Law-Dictionary (unpaginated) (1771) for respective definitions of 'Tine'')).

      . English case law immediately prior to the enactment of the 1689 Bill of Rights stressed the difference between civil damages and criminal fines. See Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C.P.1677).

      . The State urges us to adopt the more extensive double jeopardy analysis to determine whether a particular sanction constitutes punishment under the Excessive Fines Clause. See Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 493, 139 L.Ed.2d 450, 459 (1997). We decline to apply the double jeopardy analysis to determine whether a sanction constitutes a punishment under the Excessive Fines Clause. The Excessive Fines Clause has never been understood to be parallel to or even related to the Double Jeopardy Clause. United States v. Ursery, 518 U.S. 267, 286, 116 S.Ct. 2135, 2146, 135 L.Ed.2d 549, 567 (1996). The differences in the clauses justify a separate analysis. See id. at 287, 116 S.Ct. at 2147, 135 L.Ed.2d at 567 (Supreme Court declined to apply analysis under Excessive Fines Clause to double jeopardy jurisprudence).

      . The Supreme Court has only struck down a fine as excessive under the Eighth Amendment on one occasion in the history of the court. Bajakajian, 524 U.S. at 344, 118 S.Ct. at 2041, 141 L.Ed.2d at 335 (Kennedy, J., dissenting).

      . The federal Due Process Clause prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Iowa Due Process Clause states that "no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. I, § 9. We have applied the federal and state due process protections equally in scope, import and purpose. Exira Community Sch. Dist. v. State, 512 N.W.2d 787, 792-93 (Iowa 1994).

      . While the district court would not be able to address the amount of the 910.3B award (assuming the minimum $150,000 is ordered) in a hearing under section 910.7, it would be able to adjust the payment plan at any time during the pendency of the order. State v. Harrison, 351 N.W.2d 526, 529 (Iowa 1984) (court may review restitution plan or payment plan in 910.7 hearing). The offender's petition for modification must, “on its face,” demonstrate a claim of hardship, inadequate income, or a change in income, expenses, or other circumstances sufficient to warrant a hearing. Iowa Code § 910.7 (offender, or another associated with the restitution plan, may petition for modification). However, with respect to the constitutionality of the restitution award, “the focus [of the section 910.7 hearing] is not on whether a defendant has the ability to pay the entire amount of restitution due but on his ability to pay the current installments.” State v. Blank, 570 N.W.2d 924, 927 (Iowa 1997); see also State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987).


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST John H. McLOONE, IV, an Attorney at Law of the State of Minnesota.
    No. C4-00-622.
    Supreme Court of Minnesota.
    April 28, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John H. McLoone, IV, has committed professional misconduct warranting public discipline, as described herein. An attorney in respondent’s firm represented a person in the sale of property by contract for deed. The contract for deed provided that the contract could not be assigned without the client’s consent. Shortly after the contract for deed was recorded, respondent secured an assignment of the contract for deed from the other party to the contract without obtaining the client’s consent. Respondent obtained the assignment to secure the other party’s obligation to respondent’s firm for unpaid legal fees from a prior matter. As a result of the transfer, the property lost its homestead exemption. Neither respondent nor the other party in the contract paid the taxes on the property. Ultimately, cancellation proceedings were brought. Respondent’s conduct violated Rules 1.6(a)(2) and (3), 1.8(b), 1.9(a) and (b), and 1.10(a), Minnesota Rules of Professional Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and payment of $900 in costs pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent John H. McLoone, IV, is publicly reprimanded, and that he pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Stanley J. LEINO, an Attorney at Law of the State of Minnesota.
    No. C4-99-1827.
    Supreme Court of Minnesota.
    April 28, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Stanley J. Leino has committed professional misconduct warranting public discipline, namely, misappropriating client funds, fabricating and forging documents and making false statements under oath intended to conceal the misappropriation, submitting false police reports alleging that the former clients who had filed a complaint against him had burglarized his office and kidnapped him, and mailing an anonymous, threatening note to the district court judge assigned to hear the disciplinary proceedings with the intent of making it appear that the complaining former clients had sent the note, in .violation of Rules 1.15(a) and (c)(4), 3.3(a)(4), 3.3(b), 3.4(b), 4.1, 8.1(a)(1), 8.4(b), 8.4(c) and 8.4(d), Minnesota Rules of Professional Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is an indefinite suspension for at least three years, commencement of the term of suspension to be retroactive to March 2, 2000, the date of respondent’s temporary suspension. Reinstatement is conditioned upon (1) payment of costs in the amount of $900 plus interest and disbursements in the amount of $244.27 plus interest pursuant to Rule 24(d), RLPR, (2) compliance with Rule 26, RLPR, (3) successful completion of the professional responsibility examination pursuant to Rule 18(e), RLPR, (4) satisfaction of the continuing legal education requirements pursuant to Rule 18(e), RLPR, (5) restitution of the misappropriated funds, and (6) submission of a current psychiatric evaluation demonstrating fitness to practice law. The Director represents that respondent’s psychological condition contributed to the misconduct and that his condition should mitigate against imposing more severe discipline.

This court has independently reviewed the file and approves the jointly recommended disposition. The court finds that more severe discipline is not warranted because of respondent’s psychological condition.

IT IS HEREBY ORDERED that respondent Stanley J. Leino be indefinitely suspended with a minimum term of suspension of three years commencing March 2, 2000, and reinstatement subject to the terms outlined above.

BY THE COURT

Alan C. Page Associate Justice


author: DAVIES, Judge HARTEN, Judge

text:
    In re the Matter of Benjamin G. WITSO, Respondent, v. Mary C. OVERBY, et al., Appellants.
    No. C6-99-1618.
    Court of Appeals of Minnesota.
    March 9, 2000.

      Susan A. Daudelin, Walling & Berg, P.A., Minneapolis, for respondent.
    John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, for appellants.
    Considered and decided by DAVIES, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

DAVIES, Judge

FACTS

Respondent Benjamin Witso brought this action in April 1999 to establish that he was the father of M.R.O., a child born to appellant Mary Overby in April 1998. Mary Overby is — and was at the time of the conception and birth — married to appellant James Overby. She concedes she had sexual relations with respondent about the time of M.R.O.’s conception.

The Overbys moved to dismiss Witso’s paternity petition, asserting that he lacks standing because he does not have the positive genetic-test evidence he needs to make him a presumed father; it is not disputed that, if he were a presumed father, he would have standing. The Over-bys have refused to sign a release to allow genetic testing. The district court denied the motion to dismiss and ruled that Witso made a showing that gave him a right to genetic testing, notwithstanding James Ov-erby’s presumed paternity as the husband of the mother.

The district court ordered genetic testing and sealed the results; it then certified as important and doubtful this question:

When the biological mother admits having had intercourse with the putative father during the period of possible conception * * * does the putative father have standing to compel the mother and child to submit to [genetic' testing to establish a basis for a paternity presumption]?

To make the certified question reflect the actual issue, we recast it as follows:

Must a paternity action be dismissed for lack of standing when the petitioning putative father shows the requisite sexual contact but has nqt had genetic testing, which might establish the genetic basis for standing that arises from a positive genetic test?

We answer this question in the negative and affirm.

ISSUES

I. Is this certified question properly decided at this time?

II. Must a paternity action be dismissed for lack of standing when the petitioning putative father shows the requisite sexual contact but has not had genetic testing, which might establish the genetic basis for standing that arises from a positive genetic test?

ANALYSIS

I.

This court should properly answer a certified question that asks whether a motion to dismiss was properly denied. The certified question here falls squarely within the terms of the rule of civil appellate procedure that an appeal may be brought to this court “if the trial court certifies that the question presented is important and doubtful, from an order which denies a motion to dismiss * * * .” Minn. R. Civ.App. P. 103.03(h).

We note also that, were we to decline review, as the dissent urges, the result of the genetic test will be revealed without the opportunity for further appeal. Because rejecting certification would insulate the decision from review and deny the Overby’s their day in this appellate court, the interests of justice compel consideration of the certified question at this time. See Minn. R. Civ.App. P. 103.04 (Appellate courts “may review any other matter as the interest of justice may require.”).

II.

“Whether the trial court properly interpreted the parentage act is a question of law, which we review without deference to the trial court’s conclusions.” In re Welfare of C.M.G., 516 N.W.2d 555, 558 (Minn.App.1994).

The Minnesota Parentage Act provides, in Minn.Stat. § 257.57, subd. 2(1) (1998), that a man alleging himself to be the father of a child may bring an action “for the purpose of declaring the existence of the father and child relationship” based on a presumed father status under any of the clauses in Minn.Stat. § 257.55, subd. 1 (1998). Under clause (f) of that subdivision, a man’s paternity is presumed if

[e]vidence of statistical probability of paternity based on blood or genetic testing establishes the likelihood that he is the father of the child * ⅜ * is 99 percent or greater.

Minn.Stat. § 257.55, subd. 1(f) (1998). That is the basis respondent asserts for his paternity presumption..

This court, in discussing competing presumptions, has stated that the paternity presumption of the mother’s husband does not automatically prevail over a genetic-test-based presumption of paternity. Kelly v. Cataldo, 488 N.W.2d 822, 827 (Minn.App.1992), review denied (Minn. Sept. 15, 1992). The Kelly court stated:

First, the legislature has withheld a declaration of the weightier presumption, directing instead that the courts adjudicate the issue. Second, and more significantly, the legislature has directed the courts, when weighing considerations of policy and before [determining the] governing conflicting presumptions, to examine the case “on the facts.”

Id.

A positive genetic test thus creates a presumption of paternity that would, in this action to establish paternity, compete with the presumption of paternity applicable to the mother’s husband. As this court held in Kelly, the legislature has not declared that one of these provisions is necessarily weightier or that one automatically trumps the other. When competing presumptions are established, the district court in an action to establish paternity must determine which presumption should control by evaluating on the facts which presumption is founded on the weightier considerations of logic and policy. Minn. Stat. § 257.55, subd. 2 (1998). Kelly confirmed the judicial obligation in each ease to weigh competing marriage and genetic-based presumptions.

The narrow question before us in this case, therefore, is whether a district court must dismiss for lack of standing, before the petitioner obtains the genetic testing that may establish the “statistical probability” that gives rise, first, to a genetic-based presumption of his paternity and, second, to the resulting standing to maintain to its conclusion an action to establish the petitioner’s paternity.

Although the petitioner in Kelly already had a positive genetic test — and the resulting presumption — the Kelly court foresaw the question squarely presented in this case:

[W]e need not determine here the difficult issue which arises when a proceeding such as this is initiated by a man who shows reason to believe testing will demonstrate his presumptive parenthood but who has no present evidence of genetic testing.

Kelly, 488 N.W.2d at 828. The Kelly court also stated that the question of ordering genetic tests was “invited but not answered by the legislature when it amended the parentage act [in 1989] to establish presumptive parenthood on the basis of genetic testing.” Id.

We are not so certain the legislature has left the question unanswered. The statutes quite clearly allow a man in respondent’s position to be a party to a parentage action:

The child, the mother, or personal representative of the child, the public authority chargeable by law with the support of the child, the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor may bring an action:
(1) at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (d), (e), (f), (g), or (h) * * *.

Minn.Stat. § 257.57, subd. 2 (emphasis added).

In addition:

The biological mother, each man presumed to be the father under section 257.55, and each man alleged to be the biological father, shall be made parties ‡ * ⅜

Minn.Stat. § 257.60 (1998) (emphasis added).

Thus, under the statutes, respondent is a proper party to this action. And, once a party, he- enjoys the right to a test provided to each party by the following:

The court or public authority may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests.

Minn.Stat. § 257.62, subd. 1(a) (1998) (emphasis added).

In summary, a man “alleging himself to be the father” (respondent) is a party under section 257.57, subdivision 2. And, if the man alleging his own paternity (respondent) is an “alleged father” — a reasonable reading — he is also a “party” under section 257.60. Finally, if he is a party, he is entitled to an order for testing under section 257.62, subdivision 1(a).

The dissent views R.B. v. C.S., 536 N.W.2d 634 (Minn.App.1995), as disposi-tive of the issue in this appeal. Unlike the dissent, we do not read R.B. as controlling. In R.B., a putative father was denied a test, but in that case an earlier adjudication of paternity overrode all presumptions of paternity — whether based on marriage or genetic testing. Id. at 636; see Minn. Stat. § 257.55, subd. 2 (1994) (presumption of paternity under this section “is rebutted by a court decree establishing paternity of the child”). Thus, a ruling on the right of putative fathers generally to obtain genetic testing was not necessary to the decision in R.B. — nor would a ruling on the question have been appropriate. See R.B., 536 N.W.2d at 635 (“Putative father has no standing to assert paternity where another man has been adjudicated the father.”) (emphasis added).

R.B. is helpful as a guide, however, for in its second ruling (after ruling that the putative father had no right to what was in that case a legally pointless test) the court held that the child could obtain a compelled genetic test. This was because the child was still entitled to challenge the paternity of the adjudicated father and to establish paternity instead in the man alleged to be the genetic father. Id. at 638-39 (dismissal of child’s “request for [genetic testing] is reversed and remanded”). Thus, the R.B. court granted a right to obtain genetic testing to the one party who could make legal use of genetic-test results — the child. Here, respondent is very much in the same legal position of the child, that is, still entitled to make legal use of genetic-test results. This R.B. ruling is the only judicial guide available as we address the question before us today: whether a party asserting paternity has standing to seek an order for a compulsory genetic test.

' We rule, based on statutory interpretation and on R.B., that a paternity action should not be dismissed before the putative father has had an opportunity to obtain genetic testing.

We view the issue primarily as one of discovery and procedure, rather than a question of substantive right. See Garrity v. Kemper Motor Sales, 280 Minn. 202, 207, 159 N.W.2d 103, 107 (1968) (discovery objective is to allow each party opportunity to obtain all facts relative to its claim or defense). The underlying substantive right respondent asserts was established in Kelly; he needs only to discover the fact with which he can prove up a predicate for his claimed paternity.

Our ruling will not allow unreasonable fishing expeditions or casual assertions that a birth was a result of an extramarital relationship. First of all, the presumption of a father-child relationship between a man and a child born to his wife during their marriage can be challenged only

if the action is brought within two years after the person bringing the action has reason to believe that the presumed father is not the father of the child, but in no event later than three years after the child’s birth.

Minn.Stat. § 257.57, subd. 1(b) (1998).

In addition, issues of discovery and procedure are committed to the sound discretion of district courts. And, to obtain testing, a putative father must give a sworn affidavit setting forth facts sufficient to provide a factual basis for believing the genetic-test result may be relevant. Minn. Stat. § 257.62, subd. 1(a) (“alleged father” who requests testing must file affidavit alleging paternity and setting forth facts establishing reasonable probability of “the requisite sexual contact between the parties”).

This provision, requiring an affidavit before an alleged father becomes entitled to a genetic test, was added in 1997. 1997 Minn. Laws ch. 203, art. 6, § 21. The legislature did not use “presumed father” to describe who is entitled to a genetic test, but rather used the language “alleged father.” The legislature, therefore, created a right for a man to obtain genetic testing though not a presumed father. This discovery and procedural mechanism gives a putative father the right to obtain the information necessary to establish genetic paternity and, thus, to have his paternity action decided on its merits.

The parentage act allows for the possibility of conflicting presumptions of paternity. State v. Thomas, 584 N.W.2d 421, 423 (Minn.App.1998), review denied (Minn. Nov. 17, 1998). To deny putative fathers genetic testing would mean a mother could suppress the truth and frustrate the policy of Minn.Stat. § 257.55, subd. 1(f). See id. at 424 (“When you have two men actively wanting to be involved in the life of a minor child, the best interests of the child will be served by a careful balancing of all the policy considerations (too numerous to mention) and the courts will have the luxury of looking at two men who want to be the father.”).

Denying Witso and other men similarly situated a lawful procedure to obtain genetic testing also risks disruptive self-help to obtain locks of hair, skin cells, or other genetic specimens. See Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 169 (Minn.1989) (policy of self-help contravenes public policy); Berg v. Wiley, 264 N.W.2d 145, 151 (Minn.1978) (“[i]n our modern society, with the availability of prompt and sufficient legal remedies as described, there is no place and no need for self-help”); see also Glorvigen v. Glorvigen, 438 N.W.2d 692, 700-01 (Minn.App.1989) (Crippen, J., concurring specially) (“because unjust decisions are not always attacked through formal process, we enlarge the occurrence of self-help efforts to destroy acceptance of judicial decrees”).

Finally, we note again the limited consequence from allowing respondent to have the genetic testing he requests. If the test shows respondent to be the biological father, there will be conflicting presumptions of paternity. Then the presumption that “is founded on the weightier considerations of policy and logic controls.” Minn.Stat. § 257.55, subd. 2. Those considerations require the district court to look at blood relationships, marriage, and the best interests of the child to determine which of the presumed fathers should be adjudicated the legal father. Thomas, 584 N.W.2d at 424.

Our decision to give respondent the test he requests does not in any way imply that respondent, if he is the biological father of the child, should prevail over James Over-by’s marital presumption. We express no opinion on how the district court should resolve that conflict of presumptions, if it in fact arises.

DECISION

We answer the certified question in the negative, concluding that dismissal before genetic testing would not have been proper. The district court’s decision to order genetic testing and not to dismiss the action was proper.

Affirmed.

HARTEN, Judge

(dissenting)

I dissent on both procedural and substantive grounds. Procedurally, the majority misinterprets Minn. R. Civ.App. P. 103.03(h) and misapplies Minn. R. Civ.App. P. 103.04 in accepting the certified question; substantively, the majority misconstrues Minn.Stat. §§ 257.57, .60, and .62 and ignores controlling precedent in answering that question.

Minn. R. Civ.App. P. 103.03(h) provides that:

If the trial court certifies that the question presented is important and doubtful [an appeal may be taken] from an order which denies a motion to dismiss for failure to state a claim upon which relief can be granted or from an order which denies a motion for summary judgment.

There is no such order here. The majority contends that this is an appeal “from an order which denies a motion to dismiss,” but the motion to dismiss here was brought for lack of standing, not, as the rule requires, “for failure to state a claim upon which relief can be granted.” The majority’s interpretation impermissibly broadens the rule.

Minn. R. Civ.App. P. 103.04 provides for appellate review of “any other matter as the interests of justice may require.” In “the interests of justice,” the majority accepts the certified question in order to give “[appellants] their day in this appellate court.” But in giving appellants their day in court, the majority compels them to risk destruction of a belief integral to their family structure, i.e., the paternity of James Overby. As the majority notes, the district court will still be free to adjudicate him the legal father, but even an adjudication will be powerless to restore that belief. The majority misapplies Minn. R. Civ.App. P. 103.04; the interests of justice do not require such a result.

The majority cites various provisions of the parentage act to contend that the legislature has not “left the [certified] question unanswered” because parties to a paternity action are entitled to blood tests and putative fathers are parties to paternity actions. But the majority’s construction depends on transposing language included in one provision to another provision.

Minn.Stat. § 257.57, subd. 2, provides that when paternity is presumed under some of the statutory criteria, “a man alleged or alleging himself to be the father” may bring an action to establish paternity. (Emphasis added.) Minn.Stat. § 257.60 does not include the emphasized language; it provides that parties to a paternity action shall include “each man alleged to be the biological father.” Had the legislature wanted to do so, it could have repeated the “alleged or alleging himself to be” language that the majority’s interpretation requires. But “a reviewing court ‘cannot supply that which the legislature purposely omits or inadvertently overlooks.’ ” Brandt v. Hallwood Management Co., 560 N.W.2d 396, 400 (Minn.App.1997) (quotation omitted), review denied (Minn. June 11, 1997). Moreover, “[w]here a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others.” Id. (quotation omitted). The majority’s “reasonable reading” thus violates a canon of construction.

Finally, this court has already resolved the certified question. R.B. v. C.S., 536 N.W.2d 634, 637 (Minn.App.1995), holds that “[i]n Minnesota, a putative father must be a presumed father in order to bring a paternity action under the parentage act.” In R.B., the child was born out of wedlock; the mother had never married either the presumed or the putative father, and the presumption was based on a signed stipulation of paternity approved by the court and entered as an adjudication. Id. at 636.

The majority attempts to distinguish R.B. on the ground that there, the paternity of the presumed father had been adjudicated. But here, there was no reason for an adjudication of James Overby’s paternity: he and the child’s mother are and have been married since before the child’s conception, and that marriage is the basis for the presumption of his paternity. See Minn.Stat. § 257.55, subd. 1(a) (1998) (marriage to a child’s mother establishes presumption of paternity).

Allowing a putative father standing to oppose a married presumed father, as here, but denying a putative father standing to oppose an adjudicated presumed father, as per R.B., introduces an unwarranted and artificial distinction into the parentage law. That distinction means that, until a child of married parents is three, any man who provides an affidavit stating he had sexual relations with the mother around the time of conception will be legally entitled to genetic proof that the child is or is not his, regardless of the mother’s or the child’s interests. The potential for ensuing familial discord is incalculable.

      . A man alleging himself to be the biological father would appear to be a "man alleged to be a biological father.”

      . The provision continues:
      A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.

      . The dissent argues that the earlier adjudication that was decisive in R.B. was less than a real adjudication. But, though uncontested, the adjudication was a true adjudication, one by stipulation — a type of adjudication we generally welcome.

      . Two other states, which like Minnesota have added a genetic presumption to their parentage acts, have come to conflicting conclusions on whether a putative father has standing to compel a test when there is already a presumed father. Compare B.H. v. K.D., 506 N.W.2d 368, 374-75 (N.D.1993) (holding that man, in absence of genetic test, lacks standing to assert paternity when marital presumption of paternity already exists), with In re S.R.H., 981 P.2d 199, 202 (Colo.Ct.App.1998) (holding putative father has standing to assert paternity without first having obtained genetic testing, even when marital presumption of paternity already exists), cert. granted (Colo. Aug. 2, 1999). Because these cases point in different directions and were likely decided based on slightly different statutory provisions, they do not provide significant guidance for our decision.


author: G. BARRY ANDERSON, Judge. SCHUMACHER, Judge

text:
    Susanne HANSEN, as trustee for the next-of-kin of Adam R. Helmbrecht, Respondent, v. ST. PAUL METRO TREATMENT CENTER, INC., et al., Appellants.
    No. C1-99-1350.
    Court of Appeals of Minnesota.
    April 25, 2000.

      Daniel J. Maertens, Steven J. Quam, Fredrikson & Byron, P.A., Minneapolis (for respondent)
    Rebecca Egge Moos, Charles E. Lund-berg, Shalanda D. Ballard, Bassford, Lock-hart, Truesdell Briggs, P.A., Minneapolis (for appellants)
    Considered and decided by SCHUMACHER, Presiding Judge, PETERSON, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

St. Paul Metro Treatment Center, Inc. (the center), Colonial Group, Inc. (Colonial), and Dr. Randall B. Greene appeal from the judgment after a jury trial and the court’s denial of their posttrial motions. They contend that the district court erred by aggregating fault based on a joint venture theory because (1) respondent waived her right to assert joint venture by failing to plead or prove it at trial and (2) even if she did not waive the issue, there was no evidence to support such a finding as a matter of law. We reverse, holding that respondent waived the issue of joint venture.

FACTS

On Wednesday, April 13, 1994, Adam Helmbrecht enrolled in a methadone treatment program; he received his first dose of methadone that day. He then returned for doses the next two days, Thursday, April 14, and Friday, April 15. On Saturday, April 16, he received not only his daily dosei but also his Sunday dose to take with him, because the center was not open on Sunday. The next morning, he was found dead in his apartment. Respondent Susanne Hansen, Helmbreeht’s mother and the trustee for his next-of-kin, sued the center, Colonial, and Dr. Greene for negligence.

At the trial, testimony was received as to the structure of the center and Colonial. Dr. Greene was the president, Chief Executive Officer, and 100% shareholder of the center and of Colonial. The center paid a fee to Colonial for assistance with the management, consultation, supervision, and operation of the center. Colonial also provided the center with its policy and procedure manual. Dr. Greene and Colonial hold the copyright on the manual.

The special verdict returned by the jury found decedent Helmbrecht 44% negligent, the center 14% negligent, Colonial 18% negligent, and Greene 24% negligent, with total damages of $312,000. The jury was not asked to decide whether appellants were engaged in a joint venture.

In response to proposed findings submitted by appellants, respondent asserted that the fault of the appellants should be aggregated because they had been engaged in a joint venture. Appellants contended that respondent had waived the issue by fading to present it to the jury, and that the facts did not provide a basis from which to conclude a joint venture existed as a matter of law. After deciding posttrial motions, the district court entered judgment against appellants, jointly and severally, for the amount of damages awarded by the jury less the percentage attributed to decedent’s negligence.

ISSUE

Did respondent waive the issue of whether appellants were engaged in a joint venture, subjecting them to joint liability, because respondent did not submit the issue to the jury?

ANALYSIS

A plaintiffs contributory fault will not bar recovery in a negligence “action if the contributory fault was not greater than the fault of the person against whom recovery is sought * ⅜ *.” Minn.Stat. § 604.01, subd. 1 (1998). Instead, the damages will be “diminished in proportion to the amount of fault attributable to the person recovering.” Id.

In the case of multiple defendants, the plaintiffs fault is usually compared to each defendant’s fault, rather than the aggregated fault of all defendants. Cambern v. Sioux Tools, Inc., 323 N.W.2d 795, 798 (Minn.1982). This court may not extend the doctrine of aggregation further than that allowed by the legislature or the supreme court. Tester v. American Standard, Inc., 590 N.W.2d 679, 681 (Minn.App.1999), review denied (Minn. June 16,1999).

An exception to this general rule arises when the defendants are engaged in a joint enterprise. Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 208-209, 203 N.W.2d 841, 846-847 (1973); Minn.Stat. § 604.02, subd. 1 (1998). When a joint enterprise is present, the defendant’s fault is aggregated before it is compared to the fault of plaintiff. See Krengel, 295 Minn, at 210, 203 N.W.2d at 847. Aggregation of the negligence of appellants is critical here; if decedent’s negligence is compared to the negligence of one or two of the appellants, respondent cannot recover because decedent’s negligence was greater. It is only when the negligence of all three appellants is aggregated that their negligence is greater than decedents, allowing respondent to recover.

The threshold issue here is whether respondent waived the issue of joint venture because she did not seek submission of the question to the jury.

Whether a joint venture exists has been described as a question for the fact-finder to determine. Grain Dealers Mut. Ins. Co. v. Cady, 318 N.W.2d 247, 250 (Minn.1982). The party asserting joint venture must prove that fact. Sowada v. Motzko, 256 Minn. 395, 398, 98 N.W.2d 182, 185 (1959). Nevertheless, in some circumstances, the issue may be decided as a matter of law on undisputed facts. See Krengel, 295 Minn, at 208-09, 203 N.W.2d at 846-47 (holding that while question of whether joint venture existed should have been submitted to jury, facts showed joint duty as a matter of law); Weber v. Goetzke, 371 N.W.2d 611, 616 (Minn.App.1985) (holding district court erred in submitting issues to jury when defendant’s activities did not arise to level of joint venture or joint enterprise as a matter of law), review denied (Minn. Sept. 26, 1985). Therefore, if we can say — as the district court did' — 'that a joint venture exists as a matter of law, respondent’s failure to submit the issue to the jury is not fatal.

A joint venture exists when the following elements are present:

(1) contribution — combining either money, property, time, or skill in a common undertaking; (2) joint proprietorship and control' — -the parties having a proprietary interest and a right of control over the subject matter; (3) sharing of profits- — but not necessarily of losses; and (4) contract — either express or implied.

Krengel, 295 Minn, at 209, 203 N.W.2d at 847. A joint enterprise has somewhat different elements, including:

(1) a mutual undertaking for a common purpose, and (2) a right to some voice in the direction and control of the means used to carry out the common purpose.

Walton v. Fujita Tourist Enter. Co., 380 N.W.2d 198, 202 (Minn.App.1986) (citation omitted), review denied (Minn. Mar. 21, 1986).

The district court here determined a joint venture existed as a matter of law:

Each of the Defendants in this case came together for the joint purpose of forming and operating the methadone treatment clinic. Evidence at trial showed that each defendant contributed to the clinic, each had a role in controlling the clinic’s operation, each shared the profits from the clinic, and an implied contract existed between each of the Defendants with respect to their role in establishing and running the clinic. Colonial Group’s role with respect to contributing, controlling, and profiting from the venture consisted of producing a procedures manual, providing administrative services, and training the staff. St. Paul Metro Treatment Center’s role was to provide the facility and control the day-to-day operations of the clinic. Dr. Greene’s role was to oversee the establishment of the clinic, hire the staff, and provide his expertise with respect to running the clinic. Profits were shared by all as Dr. Greene is the 100% shareholder of both the Colonial Group and the St. Paul Metro Treatment Center. Therefore, a joint venture did exist and the fault of each of the Defendants must be aggregated and compared to the fault of Adam Helmbrecht. When aggregated, the Defendants are 56% at fault which allows Plaintiff to recover.

Appellants disagree, contending that no joint venture exists under the facts presented at trial, because Colonial conducted its own business enterprise, had no control over the center, did not share profits, and had no agreement to enter into a joint venture; to the contrary, their agreement specifically provided they were not engaged in a joint venture.

We first note that courts apply the joint venture or joint enterprise doctrine “when necessary to impute negligence between two entities that otherwise have no legal relationship.” Stelling v. Hanson Silo Co., 563 N.W.2d 286, 290-91 (Minn.App.1997) (citation omitted). In this case, the businesses were incorporated; in fact, one of the legitimate reasons to incorporate is to limit individual liability, assuming no fraud is present. Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn.1979). Here, the district court held in a pretrial summary judgment order that there was no evidence to support a determination that the corporate veil should be pierced. See id. (discussing factors significant in determining when corporate entity should be disregarded).

Corporations can form a joint venture. See Krengel, 295 Minn, at 209-10, 203 N.W.2d at 847 (upholding determination of joint venture between three companies). Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla.Ct.App.1974). But the fact that the entities at issue here may have shared common employees or that one entity may have used the services of the other entity does not lead to the conclusion that there was the requisite contribution or control such that they engaged in a joint venture as a matter of law. Further, there is no evidence of profit sharing; the fact that Dr. Greene was the sole shareholder of both companies does not change this result. Cf. Krengel, 295 Minn, at 209-10, 203 N.W.2d at 847 (holding that where all defendants were engaged in maintaining a photo studio for profit, all were jointly liable for injury occurring there).

The issue of joint venture or joint enterprise was a question of fact to be decided by the jury and thus inappropriate for summary judgment. Had this issue been placed directly in dispute, both sides could have presented evidence on the question. To hold otherwise is to deprive appellants of an opportunity to establish a defense to the allegation that a joint venture existed.

The decision of how many defendants to sue is one of trial strategy for the plaintiff, knowing the rules as clearly set out by the supreme court. Cambem, 323 N.W.2d at 799 (noting that plaintiffs decision as to how many defendants to sue is a question of pleading and trial strategy, which plaintiff must make in light of established rules regarding joint venture theory of liability). We are unable to extend the aggregation rule to allow respondent to recover in this case.

DECISION

The decision of the district court aggregating the negligence of appellants is reversed.

Reversed.

SCHUMACHER, Judge

(dissenting).

I respectfully dissent. Under the facts, the liability of the appellants should be aggregated because they are jointly liable as a matter of law.

Defendants’ fault is aggregated for purposes of the comparative fault law, Minn. Stat. § 604.02, subd. 1 (1998), when they are jointly liable. Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 208, 203 N.W.2d 841, 846 (1973). It commonly occurs when the defendants are engaged in a joint venture. Id. at 209, 203 N.W.2d at 847 (setting out elements of joint venture); see Walton v. Fujita Tourist Enters. Co., 380 N.W.2d 198, 201 (Minn.App.1986) (describing elements of joint enterprise), review denied (Minn. Mar. 21, 1986). Defendants may also be jointly liable under the “single indivisible injury rule,” when the independent acts of two or more persons cause harm to a third from “consecutive acts of negligence closely related in point of time and when the harm is incapable of division.” Canada v. McCarthy, 567 N.W.2d 496, 507 (Minn.1997) (citation omitted). Relevant to the facts here, an officer and a corporation may be jointly liable when the officer participates in the corporation’s tort. 3A William Meade Fletcher, et al., Fletcher Cyclopedia of the Law of Private Corporations § 1138 (perm. ed. rev.vol.1994); see 18B Am. Jur.2d Corporations § 2126 (1985) (stating that corporation and individual who corn-mit tortious act while acting for corporation are jointly liable).

In addressing the question of whether Dr. Greene and the corporations are jointly liable, the basis for Dr. Greene’s liability must be made clear. Generally, an officer of a corporation is shielded from liability for torts that the corporation or its employees committed. Avery v. Solargizer Int'l Inc., 427 N.W.2d 675, 681 (Minn.App.1988). One exception occurs when there is proof the corporate veil should be pierced, based on fraud or the officer’s use of the corporation as a mere “alter ego.” Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn.1979). The district court ruled that there was no evidence the corporate veil should be pierced, and this determination is not challenged on appeal.

The other circumstance in which an officer may be individually liable arises when the officer personally takes part in the commission of the tort. Ellingson v. World Amusement Serv. Ass’n, 175 Minn. 563, 572, 222 N.W. 335, 339 (1928) (holding that officer of corporation not personally liable for negligent acts corporation commits, but is liable for officer’s own acts of negligence); Stelling v. Hanson Silo Co., 563 N.W.2d 286, 290 n. 4 (Minn.App.1997) (noting that officer may be liable if he personally participates in the tort, but not addressing whether officer and corporation would be jointly liable in those circumstances). The jury here determined that Dr. Greene was negligent, and he does not challenge this finding on appeal.

Where the jury found that Dr. Greene and his corporations were negligent, and where Dr. Greene individually participated in the corporations’ negligent acts, Dr. Greene and the corporations should be held jointly liable. See Fletcher, supra § 1138; Am.Jur.2d, supra, § 2126. Under these circumstances, their negligence should be aggregated based on their joint liability. I would affirm.

      . Appellants allege that it did not offer certain evidence at trial because joint venture was not an issue. Such evidence would have included detailed testimony about the relationship between the parties and records showing Colonial received only fixed fees, rather than truly sharing the profits.