author: PER CURIAM.

text:
    Gary W. FINCH, Appellee, v. SCHNEIDER SPECIALIZED CARRIERS, INC. and Travelers Property Casualty, Appellants.
    No. 03-1012.
    Supreme Court of Iowa.
    July 15, 2005.

      John E. Swanson and Aaron T. Oliver of Hansen, McClintock & Riley, Des Moines, for appellants.
    Randy V. Hefner of Hefner & Berg-kamp, P.C., Adel, for appellee.
   PER CURIAM.

Gary Finch was denied workers’ compensation benefits by the industrial commissioner on the ground he was not an employee. Finch successfully challenged that ruling on judicial review in district court. The court of appeals reversed, and we granted further review. We now vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

Finch, a truck driver, began hauling cargo for Schneider Specialized Carriers, Inc. in 1992 under a written agreement. He continued to work primarily with Schneider under similar agreements until January 2000, when he suffered a neck injury while attempting to detach a Schneider trailer from his tractor.

Finch filed a workers’ compensation claim against Schneider and its insurance carrier, Travelers Property Casualty (collectively Schneider). Schneider did not dispute the events that caused the injury or that Finch suffered an injury that affected his ability to work. The primary issue was whether Finch was an employee or an independent contractor, for workers’ compensation purposes.

The deputy workers’ compensation commissioner who originally heard the case ruled that Finch was an employee. The deputy made numerous factual findings, which tended to show that Schneider had the right to exercise significant control over the manner in which Finch conducted the details of his work. Based on this control, the deputy concluded Finch was an employee entitled to benefits. Schneider appealed to the industrial commissioner who reversed, concluding the facts established that Finch was an independent contractor — not an employee. Accordingly, the commissioner ruled that Schneider had no workers’ compensation liability.

Finch sought judicial review. The district court found that Schneider had failed to prove at least one of the six statutory factors listed in Iowa Code section 85.61(13)(c) (1999) to establish Finch’s status as an independent contractor. The statute required Schneider to show that the six statutory factors under that section “are substantially present” in order to establish an independent-contractor status; however, subparagraph (5) is the only factor seriously at issue in this case. That section required Schneider to prove that Finch substantially “determine[d] the details and means of performing the services, in conformance with the regulatory requirements, operating procedures of the carrier, and specifications of the shipper.” Iowa Code § 85.61(13)(c )(5). The district court concluded that, because Schneider failed to establish this factor, Finch would be considered an employee.

Schneider appealed, and the court of appeals reversed, reinstating the commissioner’s decision denying benefits. According to the court of appeals, there was substantial evidence in the record to support the commissioner’s factual findings. See Iowa Code § 17A.19(10)(/') (2001). The court of appeals, at Finch’s urging, remanded the case for the commissioner to explain a possible inconsistency between his ruling in this case and two prior cases decided by the commissioner. See Iowa Code § 17A.19(10)(/i).

II. Review of the Commissioner’s Decision.

A. Standard of review. Review of agency action is limited to correction of errors at law. Iowa R.App. P. 6.4; IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). In reviewing a district court’s decision on judicial review, we apply the standards of Iowa Code chapter 17A to determine whether our conclusions are the same as those of that court. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002).

The interpretation of workers’ compensation statutes and related case law has not been clearly vested by a provision of law in the discretion of the agency. Accordingly, this court is free to substitute its judgment de novo for the agency’s interpretation of law. See P.D.S.I. v. Peterson, 685 N.W.2d 627, 633 (Iowa 2004) (citing Iowa Code § 17A.19(10)(c), (H)(6)); see also Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). However, the agency’s factual determinations are clearly vested by a provision of law in the discretion of the agency. See Iowa Code § 85.21; accord Mycogen Seeds, 686 N.W.2d at 465; P.D.S.I., 685 N.W.2d at 633. Thus, a court is bound by them if they are supported by “substantial evidence in the record before the court when that record is viewed as a whole.” Iowa Code § 17A.19(10)(f); accord P.D.S.I., 685 N.W.2d at 633.

Finally, the application of the law to the factual determinations in workers’ compensation cases is “vested by a provision of law in the discretion of the agency.” [Iowa Code] § 17A.19(10)(f); see also Mycogen, 686 N.W.2d at 464. We can therefore only reverse the agency’s application of the law to the facts if we determine such an application was “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(to ); see also Mycogen, 686 N.W.2d at 464.

P.D.S.I., 685 N.W.2d at 633.

B. Substantial evidence review. The wording of section 85.61(13)(e) suggests that the burden of establishing an independent-contractor status is on the trucking company. Schneider does not appear to challenge that principle, although, of course, the claimant ordinarily has the burden of establishing a prima facie right to receive workers’ compensation benefits. The industrial commissioner, after discussing the evidence presented to the deputy, concluded that Finch established a prima facie case that he was an employee. However, the commissioner found that Schneider proved that Finch was an independent contractor within the definition provided in section 85.61(13)(c). The commissioner based that finding largely on the basis of the agreement signed by Schneider and Finch entitled “Independent Contractor Operating Agreement” (ICOA).

The commissioner noted:

The ICOA agreement required [Finch] to pay all operating expenses of the tractor, including tolls, ferries, fuel, oil, taxes, traffic and weight fines (unless the trailer was preloaded), maintenance and repairs on the tractor, insurance on the tractor and any of [Finch’s] employees, and any wages of drivers furnished by [Finch].

The commissioner concluded:

Schneider proved ... by a preponderance of the evidence that [Finch] was an independent contractor within the definition provided in Iowa Code section 85.61(13)(c). Under the evidence presented in this case the only way that [Finch] could be held to be an employee is to totally ignore section 85.61(13)(c). The purpose of that statutory provision was to provide objective standards under which an evaluation of employment status could be made.

Because the commissioner is charged with weighing the evidence, we liberally and broadly construe the findings to uphold his decision. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 505-06 (Iowa 1981). The court of appeals followed this rule and affirmed the commissioner’s ruling. We agree with the court of appeals’ resolution on this issue.

C. Consistency with prior agency precedents. We granted further review primarily to discuss the court of appeals’ order for remand based on Iowa Code section 17A.19(10)(fe). Section 17A.19(10)(fc) provides that a court

shall reverse, modify, or grant other appropriate relief from agency action ... [if the action]:
h. ... is inconsistent with the agency’s prior practice or precedents, unless the agency has justified that inconsistency by stating credible reasons sufficient to indicate a fair and rational basis for the inconsistency.

We have not previously construed paragraph (h) of section 17A.19(10), which was adopted in 1998. Neither party challenges the constitutionality of this provision, so we proceed to address its applicability to this case. See Schiavo v. Schiavo, 404 F.3d 1270, 1273-75 (11th Cir.2005) (Birch, J., specially concurring) (stating statutory provision setting a particular standard of review for the courts violates separation-of-powers doctrine).

The reporter-draftsman for the 1998 amendments has written that paragraph (fe) provides a specific example “of agency action that any reviewing court should overturn as unreasonable, arbitrary, capricious, or an abuse of discretion.” Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions 69 (1998). The author suggests that this language does not really change the law,

but it should result in somewhat more structured, informed, and systematic review by the courts under the unreasonable, arbitrary, capricious, and abuse of discretion standards, and clearer arguments by and instructions to litigants with respect to the arguments that may be made with respect to such matters.

Id. We agree paragraph (⅛) does not change the law and was intended to amplify review under the unreasonable, arbitrary, capricious, and abuse-of-discretion standards.

In a case applying the standards of judicial review set out in chapter 17A prior to the 1998 amendments, this court observed that “an agency’s failure to conform to its prior deeisions[,] or furnish sufficient reasoning from which to distinguish them, may give rise to a reversal under [chapter 17A].” Anthon-Oto Cmty. Sch. Dist. v. PERB, 404 N.W.2d 140, 143 (Iowa 1987). In Anthon-Oto a PERB decision defining a collective-bargaining unit was challenged as “unreasonable, arbitrary and capricious,” and the consistency of the agency’s decision with its prior decisions was deemed pertinent to this challenge. Id. at 143. It is important to note that the agency’s decision was rendered after a public hearing and was not made in the context of a contested case. Id. at 142 (citing Iowa Code § 20.13(1)).

The nature of the agency action under review in the workers’ compensation case before us is fundamentally different. In this contested-case final decision, the commissioner was required to base his factual determinations on substantial evidence and properly apply the pertinent legal principles to those facts in reaching a decision. See Mycogen Seeds, 686 N.W.2d at 464; P.D.S.I., 685 N.W.2d at 633. The controlling legal standards are those set out in the workers’ compensation statutes and in this court’s opinions, not in prior agency decisions. See P.D.S.I., 685 N.W.2d at 633 (noting agency has no special power to interpret case law or statutes and therefore court does not give agency any deference in this respect). Importantly, the commissioner’s decision in this case is not reviewed for an abuse of discretion. See Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 273 (Iowa 1995) (stating commissioner’s final decision is not reviewed under an abuse-of-discretion or unreasonable-arbitrary-and-eapricious standard); cf. Marovec v. PMX Indus., 693 N.W.2d 779, 782 (Iowa 2005) (considering whether commissioner abused her discretion in denying intra-agency appeal for failing to file timely brief); Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 96 (Iowa 2004) (reviewing commissioner’s determination of whether issue was adequately raised in pleadings for abuse of discretion). We do not believe that Iowa Code section 17A.19(10)(A) establishes an independent requirement that the commissioner identify other agency rulings and explain possible inconsistencies between those rulings and the agency’s decision in a case not renewable under an abuse-of-discretion standard. Therefore, it is not necessary or appropriate to remand this case to the commissioner for an explanation of a possible inconsistency between the commissioner’s ruling in this case and prior cases decided by the commissioner.

We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for dismissal of Finch’s petition for judicial review.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

All justices concur except LARSON, J., who concurs in the result.

      . The relevant text of the statute reads:
      13. The following persons shall not be deemed "workers " or “employees ”:

        c. An owner-operator who ... owns a vehicle licensed and registered as a truck, road tractor, or truck tractor by a governmental agency, is an independent contractor while performing services in the operation of the owner-operator's vehicle if all of the following conditions are substantially present:
      (1) The owner-operator is responsible for the maintenance of the vehicle.
      (2) The owner-operator bears the principal burden of the vehicle's operating costs, including fuel, repairs, supplies, collision insurance, and personal expenses for the operator while on the road.
      (3) The owner-operator is responsible for supplying the necessary personnel to operate the vehicle, and the personnel are considered the owner-operator’s employees.
      (4) The owner-operator's compensation is based on factors related to the work performed, including a percentage of any schedule of rates or lawfully published tariff, and not on the basis of the hours or time expended.
      (5) The owner-operator determines the details and means of performing the services, in conformance with regulatory requirements, operating procedures of the carrier, and specifications of the shipper.
      (6) The owner-operator enters into a contract which specifies the relationship to be that of an independent contractor and not that of an employee.
      Iowa Code § 85.61(13)(c).


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    The ESTATE OF Robert W. PEARSON, by its Co-Administrators, Rebecca LATTA, Neal W. Pearson and Penny D. Swanson, and the Estate of Mary E. Pearson, by its Co-Administrators Rebecca Latta, Neal W. Pearson and Penny D. Swanson, Appellees, v. INTERSTATE POWER AND LIGHT COMPANY, f/k/a IES Utilities, Inc., an Iowa Corporation, Appellant.
    No. 03-1668.
    Supreme Court of Iowa.
    July 15, 2005.

      Stephen J. Holtman and Leonard T. Strand of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    A. John Arenz and Stephen C. Krumpe of O’Connor & Thomas, P.C., Dubuque, and Timothy J. Aiken of Aiken & Seoptur, S.C., Milwaukee, Wisconsin, for appellees.
    David R. Schlee and Truman K. El-dridge, Jr., of Schlee, Huber, McMullen & Krause, P.C., Kansas City, Missouri, and Stephen J. Powell and Jim D. DeKoster of Swisher & Cohrt, P.L.C., Waterloo, for amicus curiae American Gas Association.
   WIGGINS, Justice.

A jury returned a verdict against a natural gas utility on two wrongful death claims arising from a natural gas explosion. On appeal the utility claims it did not have a common-law duty to warn its customers of the dangers inherent with using its gas, and if it did, the filed-tariff doctrine shields it from liability. The utility also asserts the damages awarded by the jury for loss of parental consortium and for physical and mental pain and suffering are excessive. Finally, the utility argues the district court erred in entering judgment against it for eighty-five percent of the damages. Because we hold (1) the utility owed a common-law duty to warn its customers of the dangers inherent with using its gas; (2) the filed-tariff doctrine did not shield it from liability; and (3) the damages awarded for loss of parental consortium and for physical and mental pain and suffering were not excessive, we affirm the district court in part. We, however, reverse the district court for entering judgment against the utility for eighty-five percent of the damages and remand the case to the district court to enter judgment consistent with this opinion.

I. Background Facts and Proceedings.

In the early morning hours of October 29, 1998, Robert and Mary Pearson, a married couple in their sixties, were in bed sleeping when an explosion and resulting fire occurred in their home. Mary died at the scene, and Robert, who had managed to escape the burning house but suffered severe burns to most of his body, died at the hospital approximately seventeen hours after the explosion. The explosion and resulting fire destroyed Robert and Mary’s home and the personal property located on the premises.

It is undisputed the explosion had been caused by a faulty piece of brass tubing, known as a cobra connector, connecting the natural gas line to a stove in the basement of the Pearson house. The manufacturer of cobra connectors discontinued production of these connectors in the seventies and has since closed its business.

IES, a seller of electricity and natural gas, provided the natural gas to the Pearson home. The estates’ experts testified natural gas as found in the ground contains sulfur compounds. Prior to being put in the pipeline for transportation to Iowa, the gas company, which mines the gas, utilizes a process known as scrubbing to remove the sulfur compounds. However, this scrubbing process does not remove all of the sulfur compounds. Once the gas reaches IES’s gate station, IES adds an odorant to the gas known as ethyl mercap-tan, a sulfur compound. IES adds the odorant to the gas to alert customers of a gas leak because natural gas is odorless.

Experts from both sides agree sulfur compounds can be corrosive. An expert for the estates testified the synergistic effect of sulfur in the gas and sulfur in the ethyl mercaptan causes a chemical reaction to occur in the phosphorous brazing alloy of the cobra connector. “Synergistic,” as used by the expert, means one without the other; they have to work in combination with each other to create the reaction. This chemical reaction causes the brazed joint to corrode and deteriorate. The resulting corrosion and deterioration led to a catastrophic failure of the connector in the Pearson residence and allowed gas to accumulate in the basement. The water heater’s pilot light ignited the accumulation of gas causing the explosion and fire.

To support the estates’ expert opinions that the sulfur compounds in the gas caused a catastrophic failure of the cobra connector, the estates had the Pearsons’ connector examined by an expert in material and metallurgical engineering. The expert examined the connector with a scanning electron microscope and confirmed the connector contained sulfidation corrosion.

IES’s experts disagreed with the estates’ experts. They testified the gas companies scrub the corrosive sulfur compounds out of the gas before it enters the pipeline. They also testified although ethyl mercaptan is a sulfur-based compound, it is non-corrosive. They opined the catastrophic failure of the cobra connector had nothing to do with the ethyl mercaptan it added to the natural gas supplied to the Pearson residence, but rather, the design of the connector caused the connector to fail.

IES was aware of the failures attributable to the cobra connectors prior to the explosion at the Pearson home. Apparently, there had been at least two other fatal explosions resulting from failures of cobra connectors in IES’s service area prior to the Pearson house explosion. Additionally, IES had received notices from the American Gas Association (AGA) and the Consumer Product Safety Commission as early as 1979. There was testimony at trial that although IES managers issued memorandums to IES employees regarding the dangers of the cobra connectors and the necessity of their identification and removal, IES employees were not trained or required to recognize and remove the cobra connectors from the field when the employees were in the customers’ homes. Although IES argues there was no law requiring IES to take action with regard to the connectors located inside its customers’ homes, IES voluntarily used public service announcements and warning bulletins stuffed in its bills to warn customers of the dangers of the cobra connectors. The estates’ experts opined IES’s attempt-to warn its customers regarding the dangers of the cobra connectors was inadequate and below the standard of care.

The Pearson’s three adult children, Rebecca Latta, Penny Swanson, and Neal Pearson, as co-administrators of their parents’ estates, filed this action against IES. The petition, as amended, alleged when IES supplied its natural gas to the house, it knew or should have known its gas posed a risk to its customers when the sulfur compounds contained in the gas came into contact with a cobra connector.

IES moved for summary judgment on several bases. IES first noted it did not design, manufacture, sell, install, or maintain the cobra connector. IES argued it could not be liable for injuries or damages for its failure to warn of the dangers associated with cobra connectors. IES also argued the filed-tariff doctrine shielded it from liability for any injury, loss, or damage resulting from the use of the customer’s piping or other equipment. Finally, IES claimed it did not assume a duty to its customers when it made inspections or recommendations solely as a courtesy.

The district court overruled the motion. The case proceeded to trial. At the conclusion of the estates’ evidence and again at the close of all the evidence, IES moved for directed verdict on the grounds it raised in its motion for summary judgment. The district court denied the motions. Ultimately, the district court submitted three specifications of negligence for the jury’s consideration. They, were:

1. [failing] to adequately warn Mary and Robert Pearson of the dangers in connection with the defective Cobra flexible connectors.
2. [failing] to exercise the care which a reasonably careful corporation would use under similar circumstances.
3. [failing] to adequately train its employees to inspect for, recognize, remove, repair, and/or replace the defective flexible connectors.

The district court submitted the case to the jury using a special verdict form requiring the jury to determine whether IES was negligent on each specification. The jury found IES negligent under specifications one and three but found IES was not negligent under specification two. The jury also found IES seventy percent at fault and Robert and Mary each fifteen percent at fault. The jury awarded damages, before a reduction for fault, as follows:

Robert’s Estate
Pre-death pain and suffering $ 1,500,000.00
Present worth of the value of the estate $ 55,000.00
Rebecca’s loss of parental consortium $ 505,000.00
Penny’s loss of parental consortium $ 505,000.00
Neal’s loss of parental consortium $ 510,000.00
Burial expense $ 8,000.93
Pre-death medical expenses $ 6,219.31
One-half value of homestead $ 37,500.00
One-half value of vehicles $ 13,500.00
One-half value of personal property $ 13,172.00
One-half cost of demolition $ 970.00
Total $ 3,154,362.24
Mary’s Estate
Pre-death pain and suffering $ 250,000.00
Present worth of the value of the estate $ 55,000.00
Rebecca’s loss of parental consortium Penny’s loss of parental consortium $ 510,000.00 $ 510,000.00
Neal’s loss of parental consortium $ 540,000.00
Burial expense $ 5,691.75
One-half value of homestead $ 37,500.00
One-half value of vehicles $ 13,500.00
One-half value of personal property $ 13,172.00
One-half cost of demolition $ 970.00
Total $ 1,935,833.75

Based on the verdict, the district court entered judgment in favor of Robert’s estate in the sum of $2,681,207.90 and Mary’s estate in the sum of $1,645,458.69. The judgments represented a fifteen-percent reduction for each estate’s fault.

IES filed post-trial motions requesting a new trial, remittitur, or a judgment notwithstanding the verdict. It also filed a motion to amend or clarify the verdict. These motions not only raised the same issues argued in IES’s motion for directed verdict but also raised the issue that the jury verdicts were excessive and required a new trial or remittitur. Finally, the post trial motions alleged the district court’s judgment entry did not comply with Iowa Code sections 668.4 and 668.5 (2003).

Subsequent to the filing of the post-trial motions, but before ruling on them, the trial judge became disabled and unable to rule on the motions. The chief judge assigned a successor judge to rule on the motions. After reviewing the real-time record of the trial, the successor judge overruled all of IES’s motions. IES appeals.

II. Issues.

On appeal IES asserts: (1) IES did not owe a duty to warn the Pearsons of the dangers associated with the cobra connector; (2) IES did not owe a duty to train its employees to inspect for, recognize, remove, repair, and/or replace the cobra connector; (3) the damages awarded by the jury were excessive; and (4) the district court erred in entering judgment against IES for eighty-five percent of the damages awarded to each estate.

III. Analysis.

A. Did IES owe a duty to warn the Pearsons of the dangers inherent in using its gas with a cobra connector?

At the conclusion of the evidence, IES moved for a directed verdict on the grounds it did not owe any duty to warn the Pearsons of the dangers associated with a cobra connector. IES raised the same objection to the jury instructions. After the jury rendered its verdict, IES raised this issue in its motion for judgment notwithstanding the verdict. We review a challenge to the jury instructions for correction of errors at law. Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004). Likewise, we review rulings on motions for directed verdict and for judgment notwithstanding the verdict for correction of errors at law. Maxim Techs., Inc. v. City of Dubuque, 690 N.W.2d 896, 900 (Iowa 2005); Iowa R.App. P. 6.4. In reviewing the rulings on the motions for directed verdict and for judgment notwithstanding the verdict, we view the evidence in the light most favorable to the party opposing the motion. Midwest Home Distrib. v. Domco Indus., Ltd., 585 N.W.2d 735, 738 (Iowa 1998); Iowa R.App. P. 6.14(6)(6).

1. Duty to Warn. Whether a legal duty existed between the parties is a question of law. Jain v. State, 617 N.W.2d 293, 297 (Iowa 2000). We have adopted the Restatement (Second) of Torts concerning the duty to warn by persons providing products for the use of others. West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 209 (Iowa 1972). The Restatement provides:

One who supplies directly ... a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Restatement (Second) of Torts § 388, at 300-01 (1965). Accordingly, IES owed a duty to exercise reasonable care to inform the Pearsons of the dangers involved when the natural gas it supplied came into contact with a cobra connector if IES knew or should have known of the dangers involved, and IES had no reason to believe the Pearsons would realize the dangers. See Halliburton v. Pub. Serv. Co., 804 P.2d 213, 217 (Colo.Ct.App.1990) (holding a supplier of natural gas has a duty to adequately warn its customers of the dangers involved when its natural gas containing corrosive ethyl mercaptan comes in contact with a cobra connector); Adams v. N. Ill. Gas Co., 211 Ill.2d 32, 284 Ill.Dec. 302, 809 N.E.2d 1248, 1262-63 (2004) (same); Lemke v. Metro. Utils. Dist., 243 Neb. 633, 502 N.W.2d 80, 89 (1993) (same).

Viewing the evidence in the light most favorable to the estates, we find it supports that long before the explosion at the Pearson residence, IES knew the sulfur compounds contained in its natural gas had a corrosive effect on the phosphorus brazing alloy used in cobra connectors. IES knew of reports from a California utility that the addition of ethyl mercaptan to the natural gas caused a chemical reaction to occur in the brazing joints of the connector causing the joints to corrode and deteriorate. Additionally, IES also knew these types of connectors were widely used by its customers. IES further knew the deterioration of the brazed joint could lead to a catastrophic failure allowing gas to accumulate in a residence and explode as it did in the Pearsons’ residence. There was no evidence indicating the Pearsons knew of the dangers associated with their connector.

In mid-December 1979, the United States Consumer Product Safety Commission issued a warning regarding the failure of cobra connectors to the AGA. A few days later, the AGA forwarded this warning to its members, which included IES. In November 1980, IES instructed its employees to check the connectors in its customers’ homes whenever they were on the customers’ premises. If the employee discovered a cobra connector in a customer’s home, IES instructed the employee to tell the customer to have the connector replaced.

As early as 1985, IES began to warn its customers of the dangers surrounding the continued use of the connectors through voluntary public service announcements and bulletins stuffed in its bills. The estates presented evidence that these warnings were unreasonable under the circumstances. The estates produced evidence showing other utility companies used methods better calculated to warn their customers of the dangers surrounding the continued use of cobra connectors.

This evidence supports a conclusion that IES had a duty to exercise reasonable care to inform its customers, including the Pearsons, of the dangers inherent in using its gas with a cobra connector, and IES failed to exercise reasonable care to provide the Pearsons with an adequate warning of the dangers.

2. Filed-Tariff Doctrine. IES contends even if a common-law duty to warn exists, the plain language of its tariff filed with the regulatory authority bars imposition of a duty in this case under the filed-tariff doctrine. The filed-tariff doctrine precludes actions that attempt to alter the terms and conditions contained in a tariff. Teleconnect Co. v. U.S. West Communications, Inc., 508 N.W.2d 644, 647 (Iowa 1993).

IES is subject to the public utility regulations found in Iowa Code chapter 476. “Every public utility shall file with the board tariffs showing the rates and charges for its public utility services and the rules and regulations under which such services were furnished.... ” Iowa Code § 476.4. The utility company cannot change a rate, charge, schedule, or regulation unless and until it files a tariff with the regulatory authority. Id. § 476.6(1). The legislature designed the tariff system to replace private contracting between a utility and its customers. Teleconnect Co., 508 N.W.2d at 647. Terms of service that the parties would ordinarily put into private contracts are included in a utility’s tariff. Id. at 646. The tariff amounts to a binding contract between the utility and its customers. 64 Am.Jur.2d Public Utilities § 61, at 490 (2001). Once a utility files a tariff with the regulatory authority, it has the force and effect of law. Woodburn v. N.W. Bell Tel. Co., 275 N.W.2d 403, 405 (Iowa 1979); Coon Valley Gravel Co. v. Chi., R.I. & P.R. Co., 241 Iowa 487, 489, 41 N.W.2d 676, 677 (1950).

The purpose of the tariff is to ensure uniformity of utility rates and prevent a utility from discriminating based on price or service. Teleconnect Co., 508 N.W.2d. at 646. A utility can limit its liability in its tariff. See Woodburn, 275 N.W.2d at 405 (rejecting the plaintiffs public policy argument and upholding the limit of liability section of a tariff as it relates to a white-page listing). A tariff, however, does not preclude all actions based on state law. Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 230-31, 118 S.Ct. 1956, 1966-67, 141 L.Ed.2d 222, 238 (1998) (Rehnquist, C.J., concurring). A tariff can only limit the liability of a utility if the limitation is within the tariffs ambit. See Woodburn, 275 N.W.2d at 405 (allowing the plaintiff to proceed on his claim dealing with a yellow-page listing because yellow-page listings were not covered by the phone company’s tariff); accord State Farm Fire & Cas. Co. v. S. Bell Tel. & Tel. Co., 245 Ga. 5, 262 S.E.2d 895, 897 (1980) (holding tariff limiting a general claim for failure to provide telephone service does not preclude a state claim arising out of the utility’s alleged negligence); Nat’l Food Stores, Inc. v. Union Elec. Co., 494 S.W.2d 379, 384 (Mo.Ct.App.1973) (holding a tariff fixing a utility’s liability for interruption of service did not preclude a state action based on the utility’s failure to give notice to a consumer prior to a known interruption); Kroger Co. v. Appalachian Power Co., 244 Va. 560, 422 S.E.2d 757, 759 (1992) (holding tariff purporting to shield a utility from all liability in providing power to a customer beyond the delivery point does not shield the utility from the common-law duty not to reener-gize a customer’s lines when it knows the lines located beyond the delivery point are defective).

IES points to specific provisions in its tariff to support its position the plain language of its tariff filed with the regulatory authority bars imposition of a duty in this case. Section 4.06 provides: “[a]ll piping and equipment on customer’s side of the point of delivery, except metering equipment, shall be installed and maintained at the customer’s expense in a manner approved by the public authorities having jurisdiction over the same.” Section 4.07 of the tariff provides IES has no duty to inspect the piping and equipment beyond the outlet of IES’s gas meter, and it has no liability for any injury, loss, or damage resulting from the use of the customer’s piping or other equipment. Section 5.04 of the tariff states IES “shall in no way be liable because of any inspections or recommendations by company which are made solely as a courtesy by company to customer.”

The estates point to other provisions in the tariff supporting its position that the tariffs do not preclude IES’s liability for a failure-to-warn claim. Section 15.01 of the tariff states: “[t]he safety of employees and the public must receive first priority.” Mirroring the words of the applicable administrative rule, section 15.02 of the tariff provides: “[e]aeh company representative shall exercise reasonable care to minimize any hazard inherent in connection with company’s gas service and to which its employees, customers, and the general public may be subjected.”

To determine whether the tariff bars a tort action based on the breach of the common-law duty to warn, we must construe the tariff. We construe a tariff according to the same rules as contracts. See Coon Valley Gravel, 241 Iowa at 489-91, 41 N.W.2d at 678-79 (applying the rules of construction applicable to contracts to construe a tariff); accord 64 Am. Jur.2d Public Utilities § 61, at 490 (stating, “tariffs are interpreted no differently than any other contract”). In construing a written contract, “the intent of the parties must control; and except in cases of ambiguity, this is determined by what the contract itself says.” Iowa R.App. P. 6.14(6)(%). We construe a contract in its entirety by considering all of its pertinent provisions. Dickson v. Hubbell Realty Co., 567 N.W.2d 427, 430 (Iowa 1997). We assume no part of the contract is superfluous or of no effect and a construction giving meaning to all its clauses is preferred. Kerndt v. Rolling Hills Nat’l Bank, 558 N.W.2d 410, 416 (Iowa 1997). If a tariff is ambiguous, we strictly construe the language of a tariff against the drafter, the utility. Komatsu, Ltd. v. States S.S. Co., 674 F.2d 806, 811 (9th Cir.1982); Penn Cent. Co. v. Gen. Mills, Inc., 439 F.2d 1338,1341 (8th Cir.1971). A strict construction against a tariffs drafter is not justified when the construction would ignore a permissible and reasonable construction that conforms to the intentions of the framers of the tariff. Penn Cent. Co., 439 F.2d at 1341. Any ambiguity created by the incorporation of seemingly contradictory clauses must be resolved against the drafter of the contract. Johnson Controls, Inc. v. City of Cedar Rapids, 713 F.2d 370, 375 (8th Cir.1983).

This rule of strict construction, however, does not apply if a strict construction of the tariff has the effect of discriminating based on price or service. Bradshaw v. Wilkinson Water Co., 94 P.3d 242, 247 (Utah 2004). In the present case, allowing the estates to keep their verdicts under a strict construction of the tariff would not be discriminatory as to other IES customers." Adams, 284 Ill.Dec. 302, 809 N.E.2d at 1268 (holding “awarding damages on plaintiffs claim [for the gas company’s failure to warn of the dangers when its natural gas came in contact with a cobra connector] would neither discriminate, against other [gas company] customers nor involve the court in tariff setting”); see also Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 300, 96 S.Ct. 1978, 1985, 48 L.Ed.2d 643, 652 (1976) (stating “any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental”); Lovejoy v. AT & T Corp., 92 Cal.App.4th 85, 111 Cal.Rptr.2d 711, 723 (2001) (stating “awarding damages for. [the .tortious conduct pled] would neither involve the court in tariff setting nor enforce discrimination against other AT & T customers”).

Section 15.02 of the tariff requires the utility to exercise reasonable care to minimize any hazard inherent in the gas services it provides its customers. A recognized method of minimizing a hazard is to warn the ultimate user of the hazard. By its terms, section 15.02 incorporates the utility’s.common-law duty to warn its customers of the dangers inherent with using its gas. A plain reading of sections 4.06, 4.07, and 5.04 of the tariff leads us to believe these sections only cover liability for inspections and/or defects in the pipes on the customer’s side of the point of delivery, not for a failure to warn its customers of any hazard inherent in its gas service. Even if we assume IES is correct, and sections 4.06, 4.07, and 5.04 of the tariff cover all situations involving the pipes on its customer’s side of the point of delivery, the tariff is silent as to the duty to warn and in conflict with section 15.02 requiring IES to minimize any hazard inherent in the gas services it provides its customers. Accordingly, IES’s choice of language causes us to conclude the tariff did not preclude the estates’ claims on IES’s common-law duty to warn the Pear-sons of the dangers inherent with using its gas.

Lastly, IES argues section 5.12 entitled, “Indemnity to Company,” precludes liability for breach of any duty to warn the Pearsons of the dangers inherent with using its gas. Section 5.12 states:

Customer shall indemnify, hold harmless and defend company against all claims, demands, costs or expenses for injury to persons or loss or damage to property, in any manner directly or indirectly connected with, or growing out of the distribution or use of gas service by customer at or on customer’s side of the point of delivery.

The common meaning of “indemnify” is “to reimburse (another) for a loss suffered because of a third party’s or one’s own act or default.” Black’s Law Dictionary 783-84 (8th ed.2004). “Hold harmless” is synonymous with “indemnify.” Id. at 749. IES’s use of these words clearly indicates the intent of section 5.12 was to protect IES from claims brought by third parties, not those of a customer. See Wallerstein v. Spirt, 8 S.W.3d 774, 779-80 (Tex.Ct.App.1999) (discussing the characteristics of an indemnity agreement). Therefore, section 5.12 does not shield IES from liability for its failure to warn the Pearsons of the dangers inherent with using its gas.

In answering the special verdict form, the jury also found IES negligent for its failure “to adequately train its employees to inspect for, recognize, remove, repair, and/or replace the defective flexible connectors.” IES claims the tariff precluded the jury from finding it negligent under this specification. Even if IES is correct in its assertion, we need not address IES’s claim regarding the inadequate training specification because the special verdicts rendered by the jury were sufficiently insulated from each other to allow the jury’s finding on the warning claim to stand on its own. Olson v. Prosoco, Inc., 522 N.W.2d 284, 292 (Iowa 1994).

B. Were the damages awarded by the jury excessive?

We review the district court’s denial of a motion for a new trial based on the claim a jury awarded excessive damages for an abuse of discretion. State v. Taylor, 689 N.W.2d 116, 133-34 (Iowa 2004). Normally, we accord weight to the fact the trial judge saw and heard the witnesses, observed the jury, and had before it all the incidents of trial before ruling on a motion for a new trial. Kautman v. Mar/Mac Cmty. Sch. Dist., 255 N.W.2d 146, 147-48 (Iowa 1977). This case is unique because the judge who heard the evidence was unable to rule on the post-trial motions due to his disability. Our rules of civil procedure provide when a judge becomes disabled before ruling on post-trial motions, the successor judge should review the transcript and render a decision on the motions. Iowa R. Civ. P. 1.1802(2). The intent of the rule is that the ultimate decision on the motions is the decision of the successor judge. Hunter v. Union State Bank, 468 N.W.2d 456, 458 (Iowa 1991). The successor judge in this case noted in his ruling on the post-trial motions, “I did not have the opportunity to observe and listen to the witnesses. It is not my intent to act as an appellate court.”

Under this unique circumstance, we will not give the successor judge’s ruling the weight we normally accord a judge who heard the evidence. In reviewing the motion for new trial, “[w]e view the evidence in the light most favorable to the verdict and need only consider the evidence favorable to plaintiff whether it is contradicted or not.” Olsen v. Drahos, 229 N.W.2d 741, 742-43 (Iowa 1975).

IES claims the damages awarded for loss of parental consortium and predeath physical and mental pain and suffering were excessive. The determination of damages is traditionally a jury function. A jury’s assessment of damages should be disturbed “only for the most compelling reasons.” Rees v. O’Malley, 461 N.W.2d 833, 839 (Iowa 1990). We will set aside or reduce a jury award only if it

(1) is flagrantly excessive or inadequate; or (2) is so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is a result of passion, prejudice or other ulterior motive; or (4) is lacking in evidentiary support.

Id. In our determination, we put the most emphasis on whether there is evidentiary support for the verdict. Id. “If the verdict has support in the evidence the others will hardly arise, if it lacks support they all may arise.” Id.

1. Damages for Loss of Parental Consortium. The loss of parental consortium includes “the intangible benefits of companionship, comfort, guidance, affection, and aid of the parent in every parental relationship,” and “the tangible benefits of general usefulness, industry, and attention within the home and family, but does not include the value of tangible contribution or loss of monetary support from the injured parent.” Gail v. Clark, 410 . N.W.2d 662, 668 (Iowa 1987). We have recognized a difference between proof of the fact a person sustained damages and proof of the amount of those damages. Orkin Exterminating Co. v. Burnett, 160 N.W.2d 427, 430 (Iowa 1968). “If the uncertainty lies only in the amount of damages, recovery may be had if there is proof of a reasonable basis from which the amount can be inferred or approximated.” Id. Damages for loss of consortium are incapable of precise pecuniary measurement by the witnesses. Consequently, they are left to the sound discretion of the jury.

Our review of the record reveals Robert and Mary Pearson had a very close relationship with each of their children. All the Pearson children were in their thirties when their parents died. The Pearsons and their children spent almost every major holiday together. Rebecca and Neal lived in the town of Lone Tree with their parents. Rebecca’s residence was a short distance from that of her parents. Over the years Rebecca was married, a week did not go by when Rebecca and her family did not have at least one meal at the Pearson home. Rebecca and her family usually spent their Sundays at the Pearson residence. Robert and Mary played a significant role in the development of Rebecca’s children.

Neal saw his parents almost every day. Although Neal and Robert had separate trucking businesses, they both were in the same line of work. On weekends, Neal and his father would spend time washing their trucks, changing their oil, and getting their, trucks ready for the next week’s work. They were constant companions. When Neal’s first wife died, Mary and Robert stepped in to help care for Neal and Neal’s three small children. Mary cooked, cleaned, shopped, and watched the children. Mary took early retirement the summer before the explosion just so she could spend more time taking care of Neal’s children. Neal’s children often spent their evenings with the Pearsons and received advice and guidance from them. Neal has remarried but his second wife has been diagnosed with cancer. At the time of their death, Mary and Robert were providing some of the same guidance and child rearing help for Neal’s three stepchildren.

Within several years of the explosion, Penny had been living in her parents’ home. Although Penny lived in a different city from her parents at the time of the explosion, Penny talked to her parents almost every day. Robert and Mary provided invaluable guidance, advice, and counseling to Penny. Prior to the explosion, Penny recently married. She and her husband assumed custody of Penny’s two stepdaughters. Penny and her family frequently returned to the Lone Tree area because that is where all of the stepdaughters’ relatives lived. Robert and Mary would make trips to Council Bluffs two to three times a year to spend time with Penny and her family.

Although the awards for loss of parental consortium are sizeable, the awards are neither lacking in evidentiary support nor flagrantly excessive. The successor judge did not abuse his discretion by overruling IES’s motion for a new trial or remittitur.

2. Damages for Pain and Suffering. The estates are entitled to recover damages for the physical and mental pain and suffering incurred by the Pear-sons from the time of injury to the time of death. Physical pain and suffering includes bodily suffering, sensation, or discomfort. Brant v. Bockholt, 532 N.W.2d 801, 804 (Iowa 1995). Mental pain and suffering includes mental anguish, anxiety, embarrassment, loss of enjoyment of life, a feeling of uselessness, or other emotional distress. Id. Damages for physical and mental pain and suffering cannot be measured by any exact or mathematical standard and must be left to the sound judgment of the jury. Schnebly v. Baker, 217 N.W.2d 708, 725 (Iowa 1974), overruled on other grounds by Franke v. Junko, 366 N.W.2d 536, 540 (Iowa 1985).

Our review of the evidence reveals the explosion and resulting fire occurred at 2:30 a.m. Robert arrived at the hospital at 4:15 a.m. and died at 7:45 p.m. He lived for approximately seventeen hours after the explosion. Immediately after the explosion, Robert sought the help of his neighbor by pounding on his neighbor’s door. The neighbor, a physician, observed Robert in a tremendous amount of pain and with all of his hair burned off. The neighbor discovered bloody prints and some skin around the back of his house that had come from Robert’s body.

The first emergency medical technician on the scene observed that Robert’s hands and feet were bloody and shredded. The technician confirmed the fire burned off all of Robert’s hair. The technician noted Robert’s skin was a brown-green color. While attempting to take a history from Robert, the technician noticed he was in extreme pain and was having trouble breathing. The technician also noted Robert was keenly aware of his surroundings and knew what was going on. At one point when the technician was trying to determine the status of Robert’s condition,

Robert made the comment “Oh, damn, I’m still here.”

At the hospital, his nurse remembered Robert was alert and responsive. Robert suffered burns on eighty-three percent of his body surface. The only treatment attempted at the hospital was an effort to control his pain and sedate him. Robert’s physicians gave him the choice of “comfort care” or “aggressive care.” After finding out his wife, his lifetime companion, had not survived and he would not be able to do his daily activities, Robert chose not to fight for survival and opted for “comfort care.” At the hospital, he kept mouthing the name “Mary.”

The authorities found Mary’s body on the first floor of her home .by the garage door. This location was several rooms over from their bedroom, where she had been sleeping at the time of the explosion. This evidence indicates Mary lived for a time after the explosion and was attempting to escape the fire in the home before she died. The record is unclear as to whether she died due to the inhalation of smoke or other toxic chemicals created by the fire, by going into shock from her burn injuries, or a combination of both. In any event, any of these causes of death would be terribly painful ■ from a mental and physical standpoint.

The awards for physical and mental pain and suffering are neither lacking evidentia-ry support nor excessively flagrant. The trial court did not abuse its discretion in failing to enter an order for a new trial or remittitur.

C. Did the district court err in entering judgment against IES for eighty-five percent of the damages awarded to each estate?

The jury determined Robert and Mary were each fifteen percent at fault, and IES was seventy percent at fault. When the district court entered its judgment in favor of Robert’s estate, it entered judgment against IES for eighty-five percent of each item of damage awarded. The district court made the same calculation in the judgment it entered in favor of Mary’s estate. IES argues the district court erred in entering judgment against it for eighty-five percent of the damages because Iowa Code section 668.4 requires “a defendant found to bear fifty percent or more of fault shall only be jointly and severally liable for economic damages and not for any noneconomic damage awards.”

Section 668:4 sets forth the rule of joint and several liability applicable to actions governed by our comparative fault act. Iowa Code § 668.4. The rule of joint and several liability applies when two or more tortfeasors’ actions combine to cause a plaintiffs injuries. Rozevink v. Faris, 342 N.W.2d 845, 847 (Iowa 1983). Prior to the adoption of our comparative fault act, the common-law rule required each joint tortfeasor to be jointly and severally liable for a plaintiffs entire loss. Id. at 850, modified in part by statute as stated in Johnson v. Junkmann, 395 N.W.2d 862, 867 (Iowa 1986). Our comparative fault act modified the common-law rule and provides:

In actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are ■found to bear less than fifty percent of the total fault assigned to all parties. However, a defendant found to bear fifty percent or more of fault shall only be jointly and severally liable for economic damages and not for any noneconomic damage awards.

Iowa Code § 668.4.

The parties agreed to submit this case . so the combined fault of the parties totaled one hundred percent, rather than as two separate causes of action joined in one action. See Iowa R. Civ. P. 1.232 (allowing any number of plaintiffs to join in a single action as long as each plaintiffs cause of action arose out of the same transaction or occurrence). The effect of submitting the case in this manner was to submit the case as though there were two tortfeasors whose actions combined to cause each estate’s damages. IES and Robert’s estate were the tortfeasors in Mary’s estate’s cause of action, while IES and Mary’s estate were the tortfeasors in Robert’s estate’s cause of action. Under the submission as agreed to by the parties, section 668.4’s rule of joint and' several liability is applicable to this action. IES is jointly and severally liable for eighty-five percent of the economic damages because the jury assigned IES with more than fifty percent of the total fault assigned to the parties. IES, however, is only responsible for seventy percent of the noneconomic damages awarded by the jury.

Consequently, the district court properly entered judgment against IES for eighty-five' percent of the economic damages, which include the present worth of the value of the estates, the burial expenses, the predeath medical expenses, the value of the homestead, the value of the vehicles, the value of the personal property, and the cost of demolition. Conversely, the district court should have entered judgment against IES for only seventy percent of the noneconomic damages, which include the awards for predeath pain and suffering and the losses for parental consortium.

IES also asserts because the jury found each of the estates fifteen percent at fault for the other estate’s damages, the district court should have offset the judgment entered against IES in favor of Mary’s estate in an amount equal to the fifteen percent of economic damages awarded by the jury to Robert’s estate. It also contends the district court should have made the same calculation in regards to the damages awarded to Robert’s estate. The effect of this calculation would be to enter a judgment for contribution against each estate for the extra fifteen percent of economic damages IES is required to pay under section 668.4 of the Code. This assertion is without merit.

IES never asserted a counterclaim against either estate for contribution. If we were to allow a reduction in damages as asserted by IES, we would in essence be allowing an unpled counterclaim by IES against the other estate for contribution. If IES wanted to assert a counterclaim for contribution in this proceeding, it should have done so in its pleadings. This would have given each estate notice of the counterclaim, the opportunity to raise any affirmative defenses, and the opportunity to defend the counterclaim on its merits.

Even if we were to allow IES’s unpled counterclaim for contribution, our rules do not allow judgments on counterclaims to offset each other without an agreement of the parties or unless required by statute. See Iowa R. Civ. P. 1.957 (stating “[a] claim and counterclaim shall not be set off against each other, except by agreement of both parties or unless required by statute”). Accordingly, the district court was correct when it refused to reduce the amount of the judgment in favor of each estate as requested by IES.

IV. Disposition.

We affirm the district court in part because IES owed a common-law duty to warn the Pearsons of the dangers inherent with using its gas, and the damages awarded for loss of parental consortium and for physical and mental pain and suffering were not excessive. We, however, reverse the district court for entering judgment against the utility for eighty-five percent of the noneconomic damages and remand the case to the district court to enter judgment consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS.

      . The Restatement (Third) of Torts: Products Liability section 2(c) adopts a similar standard concerning the liability of a commercial seller or distributor for harm caused by a defective product. Section 2(c) provides a product:
      is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
      Restatement (Third) of Torts: Products Liability § 2(c), at 14 (1998). We need not decide section two's applicability to this case because the parties tried the case as a negligence case, rather than as a defective product case.

      . The estates conceded in their brief that the damages awarded to the estates for loss of parental consortium under the evidence introduced at trial were noneconomic losses.


author: TERNUS, Justice.

text:
    Timothy MASON, Harlan Dettman and Ronald Klienow, Appellants, v. VISION IOWA BOARD of the State of Iowa and its Negotiating Committee on the Marquette-McGregor Legacy Project, Appellees.
    No. 04-0491.
    Supreme Court of Iowa.
    July 15, 2005.

      Wallace L. Taylor, Cedar Rapids, for appellants.
    Thomas J. Miller, Attorney General, and Mark A. Thompson, Assistant Attorney General, for appellees.
   TERNUS, Justice.

The appellees, Timothy Mason, Harlan Dettman, and Ronald Klienow, brought this action against the appellants, Vision Iowa Board of the State of Iowa and its negotiating committee for the Marquette-McGregor Legacy Project, alleging the negotiating committee violated Iowa’s open meetings law, Iowa Code chapter 21 (2003). The district court granted summary judgment to the defendants, ruling the negotiating committee was not a “governmental body” subject to chapter 21, and even if it was a governmental body, it did not hold a “meeting” within the meaning of chapter 21. Because we agree that the meetings of the negotiating committee were not within the prohibitions of Iowa’s open meetings law, we affirm the district court’s dismissal of the plaintiffs’ lawsuit.

I. Statutory Framework for Vision Iowa Board.

It is helpful at the outset to understand the structure and function of the entities sued in this action. The Vision Iowa Board (“board”) administers the Vision Iowa program. See Iowa Code § 15F.302(1). This program was created by the legislature to “assist communities in the development of major tourism facilities” through the award of monetary grants. Id. In addition to administering the Vision Iowa program, the board is also responsible for establishing and administering a Community Attraction and Tourism Program (“CAT”) to assist in the development of small tourism projects. See id. §§ 15F.202(1), .204.

The Iowa department of economic development is directed by statute to provide assistance to the board in several areas, including assistance in administrative functions and contract negotiation. See id. § 15F.104. Applications for financial assistance are first screened by department staff, and those applications meeting eligibility requirements are then sent to a Vision Iowa review committee or a CAT review committee. See Iowa Code §§ 15F.203, .304. These committees are created by statute and are composed of specified members of the board. See id. §§ 15F.203(2), .304(2). The review committees make recommendations to the full board, which then decides whether to approve, defer, or deny an application. See id. §§ 15F.203(2), (4), .304(2), (4). When a project is approved for the Vision Iowa program, the board is authorized to “enter into an agreement with the applicant to provide financial assistance” under the program. See id. § 15F.304(4).

II. Background Facts and Proceedings.

In April 2001 the communities of McGregor, Strawberry Point, and Gutten-burg submitted an application to the department seeking a grant of over $6 million. The application was considered by the CAT review committee. The review committee recommended that “the board issue a Notice of Intent to Consider Award for the Marquette-McGregor project” and consider “whether any funding should come from the Vision Iowa or CAT program.” Subsequently, the board issued a Notice of Intent and appointed “a negotiating committee to determine a potential award amount and to recommend whether it should be a Vision Iowa or CAT award.” The number of board members to serve on the negotiating committee, as well as the identity of those members, was left to the discretion of the board chair.

Over the next few weeks, the chair contacted various members of the board to serve on the negotiating committee, but the bulk of the negotiating fell to the board chair and another board member. The committee reported back to the board in October 2001, recommending an award of $5 million from the Vision Iowa program with certain contingencies, including an acceptable development agreement with a golf course developer. The board approved the recommendation subject to several conditions, including a development agreement “acceptable to the Vision Iowa board.” The negotiating committee was charged “with reviewing the development agreement to advise the board as to whether it was acceptable.”

Significant concerns about the viability of the project were raised in the course of the negotiations with the developer, and negotiations and meetings between the negotiating committee and supporters of the project continued throughout 2002. A meeting between the committee and the project proponents was scheduled to be held just prior to the regular board meeting on January 8, 2003. An opponent of the project, Stan Thomas, attempted to attend this meeting, but was told by the board chair that the meeting was closed. Thereafter, the committee meeting was canceled.

At the board meeting held the same day, the committee reported that contract negotiations were still in progress. Extensive discussion ensued concerning the financing issues on the Marquette-McGre-gor project. Ultimately, one board member requested a full update at the board’s February meeting and suggested that the board make a final decision on the project at its March meeting. The matter was opened for public comment, and several opponents of the project, including plaintiff Mason, expressed concerns about the feasibility of the project and the environmental effects of the project.

Immediately prior to the board’s meeting on March 12, 2003, the negotiating committee met with the proponents of the project in a closed meeting. Several members of the public, including plaintiffs Dett-man and Klienow, were not permitted to attend this meeting. At the subsequent board meeting, department staff reported that the negotiation team had recently met with the proponents who had provided some additional financial information. The board was informed that the committee was not ready to propose any board action. Nonetheless, the matter was again opened for public comment, and Mason addressed the board with his concerns.

At the board’s meeting on April 9, 2003, the committee reported that it had not been able “to reach terms acceptable to both sides as to the hotel and golf course components [of the project or] on the financing.” “Because there [was] agreement on the other components” (a trail and a streetscape), the negotiating committee “recommend[ed]” that those components be severed from the Vision Iowa project and be considered separately as a CAT project. See Iowa Code § 15F.303(1) (authorizing board to “divide a proposed project into component parts”). Based upon the recommendation of the negotiating committee, the board concluded the conditions of the grant could not be met, and so the board formally withdrew its financial assistance for the project under the Vision Iowa program.

On April 1, 2003, the plaintiffs filed a petition in equity against the board and its negotiating committee alleging that the negotiating committee was a governmental body as defined in Iowa Code section 21.2(l)(c), and the committee’s meeting on March 12, 2003 was a public meeting as defined in section 21.2(2). Because this meeting was closed to the public, the plaintiffs claimed the defendants violated section 21.3 of Iowa’s open meetings law. The plaintiffs sought damages from each member of the negotiating committee, a mandatory injunction ordering the committee members to refrain from future .violations of chapter 21, and an award of attorneys fees.

The defendants filed a motion for summary judgment asserting: (1) the committee was not a governmental body; (2) the committee did not hold a meeting as defined in the statute; and (3) damages could not be assessed against the committee members because they were not individually named in the suit or served with an original notice. The district court granted the defendants’ motion, ruling the committee was not a governmental body and did not hold a meeting within the scope of chapter 21. Having made these determinations, the court found it unnecessary to address any remaining issues.

The plaintiffs have appealed. Because we find dispositive the issue of whether the negotiating committee’s meeting in March 2003 was a gathering subject to the requirements of chapter 21, we focus our discussion on that issue.

III. Scope of Review.

The scope and standard of review of summary judgment rulings are well established. This court reviews such rulings for correction of errors of law. If the record shows no genuine dispute of a material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. In assessing whether summary judgment is warranted, we view the entire record in a light most favorable to the nonmoving party. We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question.

Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 566 (Iowa 2000) (citations omitted). “A genuine issue of material fact is lacking when a reasonable jury or judge could conclude that no evidence entitles the nonmoving party to relief.” Keokuk Junction R.R. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000).

The scope of review is on legal error even where, as here, the case is in equity. See Norwest Credit, Inc. v. City of Davenport, 626 N.W.2d 153, 155 (Iowa 2001). Likewise, “[w]hen our review necessarily calls upon us to interpret the scope and meaning of statutory provisions, our review is also for correction of errors at law.” Id. In both instances, this court is “ ‘not bound by the trial court’s determinations of law.’ ” Id. (citation omitted).

IV. Relevant Provisions of Chapter 21.

Iowa’s open meetings law “seeks to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people.” Iowa Code § 21.1. To this end, “[ajmbiguity in the construction or application of ... chapter [21] should be resolved in favor of openness.” Id.; accord Donahue v. State, 474 N.W.2d 537, 539 (Iowa 1991).

The plaintiffs claim the defendants violated the following provision of chapter 21: “Meetings of governmental bodies shall be preceded by public notice as provided in section 21.4 and shall be held in open session unless closed sessions are expressly permitted by law.” Iowa Code § 21.3; see also id. § 21.5(1) (listing acceptable reasons for closed session, none of which are implicated here). Not all gatherings, however, are considered “meetings” under the statute. The law specifically defines a “meeting” as

a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.

Id. § 21.2(2) (emphasis added).

In addition to claiming the negotiating committee is not a “governmental body,” the defendants assert the committee had no “policy-making duties,” and therefore, the committee’s meeting was not a gathering required to be held in open session. As noted earlier, we need not determine whether the committee is a governmental body because we agree with the district court that the committee’s meetings did not fall within the statutory definition of a “meeting” subject to the open-meetings requirement of section 21.3.

V. Interpretation of Statutory Definition of “Meeting.

A gathering of a governmental body must be open to the public only “where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.” Iowa Code § 21.2(2) (emphasis added); accord Tel. Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 533 (Iowa 1980). The fighting issue in the present case is whether the negotiating committee’s deliberations and actions were in furtherance of any policy-making duty placed on the committee.

The phrase “policy-making duties” is not defined in chapter 21. Therefore, we look to the common, meaning of that term in interpreting the statutory definition of “meeting.” See In re Estate of Thomann, 649 N.W.2d 1, 4 (Iowa 2002); see also State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999) (stating the dictionary supplies a ready source for the “common meaning of a word”). The dictionary defines “poli-cymaking” as “the act or process of setting and directing the course of action to be pursued by a government, business, etc.” Webster’s New World College Dictionary 1114,.(4th ed.2001) (emphasis added). To set and direct a course of action is to establish and order a course of action. Webster’s Third New International Dictionary 640, 2077 (unabr. ed.2002) (defining “direct” as “to point out, prescribe, or determine a course or procedure” and stating synonyms for “set” are “fix, settle, establish”); see also Roget’s International Thesaurus 893.8, at 615 (5th ed.1992) (including “direct” with “govern ..., rule, control ..., order, regulate, ... guide”). In contrast, to recommend a course of action is merely to suggest favorably a particular plan of action. See Webster’s Third New International Dictionary 1897 (defining “recommend” as “offer or suggest as favored by oneself’).

Thus, “policy-making” is more than recommending or advising what should be done. “Policy-making” is deciding with authority a course of action. Although the plaintiffs contend there is nothing in the statutory definition “that restricts the open-meetings requirement ... to bodies that have decision-making authority,” the authority to make a decision is inherent in the duty to make policy. See 1980 Op. Iowa Atty. Gen. 148,152-53 & n. 3 (stating requirement in statutory definition of “meeting” that body exercise “policy-making duties” excludes advisory groups from open-meetings requirement).

The notion that policy-making commonly denotes something more than advice is illustrated by our prior cases applying the open meetings law. In Donahue, we held that an advisory board “exercises no policy-making power.” 474 N.W.2d at 539. In an earlier case in which we held an entity was subject to the open-meetings requirement, this court noted that the entity at issue was “a powerful decision-making and policymaking body” and was “not a mere study or advisory group.” Greene v. Athletic Council, 251 N.W.2d 559, 561 (Iowa 1977), superseded by statute as stated in Donahue, 474 N.W.2d at 539.

In determining that a policy-making duty entails some degree of decision-making authority, we have not overlooked the fact that in 1989 and in 1993 the legislature added certain purely advisory groups to the statutory definition of “governmental body,” specifically

e. An advisory board, advisory commission, or task force created by the governor or the general assembly to develop and make recommendations on public policy issues.
h. An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues.

Iowa Code § 21.2(l)(e) (enacted 1989 Iowa Acts ch. 73, § 1), (⅛) (enacted 1993 Iowa Acts ch. 25, § 1). These groups by definition “make recommendations on public policy issues” as opposed to making policy. Iowa Code § 21.1(l)(e), (⅛) (emphasis added). As we have already determined, only gatherings in which a governmental body establishes and directs policy are encompassed in the statutory definition of “meeting.” Clearly, then, there is a conflict between the legislature’s definition of “meeting” and its subsequent inclusion of advisory groups in the definition of “governmental body.”

We do not think the amendments to the statutory definition of “governmental body” can be interpreted as amendments of the statutory definition of “meeting,” in effect eliminating the “policy-making duties” qualification from the latter definition. If such a modification was desired by the legislature, it was for the legislature to specify the change; it is not for the court to incorporate the change by interpretation. See Consol. Freightways Corp. v. Nicholas, 258 Iowa 115, 122, 137 N.W.2d 900, 905 (1965). Notwithstanding the tension in the statute, we think it is clear the legislature intended to make the delineated advisory groups subject to the open meetings requirement. Otherwise, the legislature’s act of including these entities in the definition of “governmental body” would be a nullity because none of the restrictions and requirements imposed on “meetings” of a governmental body would apply. See Jenney v. Iowa Dist. Ct., 456 N.W.2d 921, 923 (Iowa 1990) (stating court assumes “amendment is adopted to accomplish a purpose and was not simply futile exercise of legislative power”); Iowa Code § 4.4(2) (stating presumption that in enacting a statute, legislature intends the entire statute to be effective). Thus, the specified advisory groups would be subject to the open-meetings requirement when they deliberate or act within the scope of their duty to develop and make recommendations on public policy issues. But as to all other governmental bodies, the legislature left unchanged the definition of “meeting,” including the requirement that the body act in its policy-making role.

The fact that the legislature made specified advisory groups subject to the open meetings law is of no assistance to the plaintiffs here because the negotiating committee was not created by the governor, by the general assembly, by statute, or by executive order of the state or a political subdivision of the state so as to fall within paragraphs (e) or (⅛) of section 21.2(1). Although the plaintiffs contend the negotiating committee was in reality a Vision Iowa review committee created by section 15F.304(2), the record does not support this contention. The undisputed facts establish that the negotiating committee did not consist of the board members designated in the statute creating review committees; the negotiating committee did not review the application and make a recommendation to approve, defer, or deny the application as review committees are required by section 15F.304(3), (4) to do; and a CAT review committee had already performed these functions prior to the formation of the negotiating committee. Thus, the negotiating committee is not one of the statutorily-specified advisory groups subject to the open-meetings requirement. Consequently, we must determine whether the undisputed facts establish that the negotiating committee did not deliberate or act within the scope of any policy-making duty so that its gathering did not qualify as a “meeting” within the statutory definition of that term.

VI. Application of Law to This Case: Did the Negotiating Committee Have a “Meeting”?

Examining the undisputed facts in the record, we find no support for a finding that the negotiating committee had responsibility for anything more than simply recommending or suggesting to the board what course of action to take on the Marquette-McGregor project. The July 2001 board minutes reveal that the committee was “to determine a potential award amount and to recommend whether it should be a Vision Iowa or a CAT award.” (Emphasis added.) There is no evidence that authority to set the award amount or decide whether it should be made under the Vision Iowa or CAT programs was given to the committee. Later, in October 2001, the committee recommended an award of $5 million from the Vision Iowa program, with certain contingencies. It is undisputed that the board approved the recommendation and charged the negotiating committee “with reviewing the development agreement to advise the board as to whether it was acceptable.” (Emphasis added.) Again, ultimate authority to accept or reject the development agreement was reserved to the board; the committee’s duty was advisory only. Eventually, the committee reported that it had not been able to negotiate an agreement within the conditions established by the board’s grant, and so the committee recommended only a portion of the project be funded under a CAT award. Acting on this recommendation, the board chose to withdraw its Vision Iowa grant. Once again, the board made the ultimate decision on the course of action to be taken on the project.

Relying on a Florida case, the plaintiffs suggest we should take judicial notice of “the fact that committee recommendations are often accepted by public bodies at face value and with little discussion.” Bigelow v. Howze, 291 So.2d 645, 647 (Fla.Dist.Ct.App.1974). In view of this “fact,” plaintiffs argue, the negotiating committee was the de facto policy-maker on the Marquette-McGregor project. We do not think this “fact” is a proper subject for judicial notice.

The Iowa Rules of Evidence allow a court to take judicial notice of certain “adjudicative facts.” Iowa R. Evid. 5.201(a).

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Iowa R. Evid. 5.201(6). The suggestion that committee recommendations are routinely followed by public bodies is not generally known, nor is it capable of accurate and ready determination. Therefore, we cannot take judicial notice of this “fact.” See Warford v. Des Moines Metro. Transit Auth., 381 N.W.2d 622, 623 (Iowa 1986) (refusing to take judicial notice of intergovernmental agreement creating MTA “because it is not the type of evidence that is ‘common knowledge or capable of certain verification’ ”).

The plaintiffs also argue that the negotiating committee’s failure to bring a recommendation to the board at the board’s March meeting, as one board member had previously requested, “was certainly setting policy in this regard” because, as a result, the fate of the project was not decided at the March board meeting. We do not think the committee’s inability to meet a deadline imposed by one board member set policy. The committee’s charge was simply to make recommendations to the board. The committee had no recommendation in March, so the board took no action on the project at that time. The record shows that ultimately the committee brought a recommendation to the board, and the board decided to withdraw its grant. This sequence of events does not support a finding that the committee had or exercised any “policy-making duties.”

In a related argument, the plaintiffs also rely on the fact the agenda for the board’s March 2003 meeting included an update on the Marquette-McGregor project; yet, they contend, the project was not discussed because it was taken off the agenda by the negotiating committee. In response, the defendants claim the board minutes show the project was discussed at that meeting; there was simply no recommendation made by the negotiating committee as had been anticipated.

We do not think any factual dispute regarding whether or not the project was “discussed” at the board’s March meeting is material to a determination of whether the negotiating committee had a “meeting” within the meaning of Iowa’s open meetings law. Therefore, this dispute does not preclude summary judgment. See Fin. Mktg. Servs., Inc. v. Hawkeye Bank & Trust, 588 N.W.2d 450, 455-56 (Iowa 1999). Even if we accept as a fact that the negotiating committee was responsible for a failure by the board to discuss the project in March, again, this fact is not material to whether a “meeting” of the committee took place prior to the board’s March meeting. The committee’s failure to make a recommendation in March, thereby leaving the board with nothing to consider, does not demonstrate the committee had any authority to set or direct board policy. There is nothing in the record to show the board could not have considered the project in March had it been willing to forgo a recommendation from its negotiating committee and a review of the recent financial information provided by the project supporters. The board minutes show that board members were free to ask questions about the project or to make comments concerning it, and several members did so during the course of the board’s March meeting.

Finally, the plaintiffs contend that prior to the board’s March meeting, the committee met “with project proponents to manipulate a way to make this project go in spite of the objections from members of the public.” The plaintiffs support this conclusion with a memo prepared by one of the proponents in which the proponent states that the proponents “should request a meeting prior to [the board’s] regularly scheduled meeting to provide [an] update, so that we don’t have to discuss this in front of the world.” The plaintiffs claim “[t]his is exactly the kind of activity by a public body that needs to be conducted in the light of public scrutiny.”

Initially, we note it is somewhat of a leap to conclude that the proponents’ desire to discuss their financial difficulties in private indicated an intent to manipulate the process. Nonetheless, even if we accept the plaintiffs’ assertion that those discussions should be conducted in public, this court is constrained by the terms of the open meetings law. As we have noted in the past,

It was ... for the legislature to set [the] parameters [of the open meetings law.] In doing so it assumed responsibility for weighing the law’s stated purpose against situations when the demands of efficient administration require a measure of confidentiality. We might or might not set some boundaries differently. Our clear responsibility is nevertheless to apply the ones established by the legislative branch of government.

Donahue, 474 N.W.2d at 539. Chapter 21 clearly reaches only those meetings at which the governmental body deliberates or acts in a “policy-making” role. Because there are no facts in the record to support a finding that the negotiating committee had anything more than an advisory function, its March 2003 meeting was not required to be open to the public.

VII. Summary.

The district court correctly ruled the undisputed facts establish as a matter of law that the negotiating committee did not have any policy-making duties. Therefore, its meetings were not subject to the open meetings law. Accordingly, we affirm the district court’s summary judgment ruling in favor of the defendants.

AFFIRMED.

      . The total cost of the project was near the threshold amount necessary for a Vision Iowa project, so there was some question whether the project would more appropriately be funded by the Vision Iowa program rather than the CAT program. See Iowa Code § 15F.303(1) (establishing a $20 million minimum cost for any project funded under the Vision Iowa program).

      . The board minutes state in reference to the Marquette-McGregor project:
      [Department staff] reported that a negotiation team met today with project proponents. [He] reported that no action was taken and there was nothing to propose or put forward by the negotiation team committee at this point and that there was no action that needed to be taken.

      [A board member] commented on proponents' and opponents’ presence and asked if the project would be discussed. [The board chair] responded that there were no real issues on this project to discuss at this time.
      ¡The board member] asked for an update on the project. [The chair] responded that [there] were discussions with project representatives prior to the Board meeting, however, there was nothing to bring to the Board at this time.
      Tim Mason approached the Board, requesting the opportunity to give testimony for the public record. [The chair] opened public comment.
      [The board minutes contain a nearly three-page summary of the public comments on this project, which also includes statements, questions, and responses by various board members.]