author: MEIERHENRY, Justice. ZINTER, Justice

text:
    2006 SD 43
    STATE of South Dakota, Plaintiff and Appellee, v. Jessie KREBS, Defendant and Appellant.
    No. 23296.
    Supreme Court of South Dakota.
    Argued Oct. 4, 2005.
    Decided April 26, 2006.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Timothy J. Rensch of Rensch Law Office, Rapid City, SD, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Sixteen year-old Jessie Krebs appeals his conviction for first-degree manslaughter. We affirm in part, reverse in part, and remand for trial.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] Jessie Krebs (Krebs) was charged with murder and manslaughter in the stabbing death of Chance Darrow (Darrow). The charges stem from an incident involving a fight during the early morning hours of July 12, 2003. Events leading up to the incident started on the prior evening of July 11, 2003. After getting off work from his construction job, Krebs met several of his friends to socialize. The group of friends spent most of the evening and early morning hours driving around the area from Box Elder to Rapid City, South Dakota. The group returned to Krebs’s apartment in Box Elder after 2:00 a.m. Around 3:00 a.m., Krebs along with two male friends, his girlfriend, and his female cousin headed for Rapid City in Krebs’s vehicle. The purpose of the trip was to meet a girl named Rianna who was planning to fight another girl named Angelique. The group knew Angelique was hosting a keg party at her residence in Rapid City. Angelique’s party started around 10:00 p.m. in a large open field behind her trailer. A bonfire marked the site of the party. After meeting in a Rapid City parking lot, Krebs’s group followed Rianna and three of her friends to the party site.

[¶ 3.] When they arrived, Rianna and her girlfriends headed for the bonfire. Krebs and his two male companions also headed for the bonfire, while his girlfriend and cousin waited in the vehicle. Almost immediately, Rianna confronted Angelique and the two began to fight. Eventually, fighting erupted between Krebs’s group and the partygoers.

[¶ 4.] During the melee, Krebs and Darrow began to fight. The two exchanged blows. At some point Krebs stabbed Darrow with Krebs’s double-edged, fixed-blade knife that Krebs had brought with him. Krebs and his two male companions fled the scene. Darrow died a short time later en route to the hospital.

[¶ 5.] Krebs was charged with alternative counts of second-degree murder and first-degree manslaughter. He moved to transfer the charges to juvenile court. The trial court denied the motion and Krebs was tried as an adult. At trial, Krebs sought to establish a claim of self defense. The jury acquitted Krebs of the murder charge but convicted him of first-degree manslaughter. He was sentenced to twenty years in the South Dakota State Penitentiary. Krebs appeals his conviction and raises the following issues:

ISSUES
1. Whether the trial court erred in refusing to transfer Krebs to juvenile court.
2. Whether the trial court erred by allowing the State to present undisclosed inculpatory testimony in violation of a pretrial discovery order.
3. Whether the trial court erred by allowing the State to introduce a video tape showing Darrow’s distraught girlfriend and Darrow’s body being removed from her vehicle.

DECISION

Transfer to Juvenile Court

[¶ 6.] Krebs contends that it was error for the trial court not to transfer the case to juvenile court. Krebs was 16 years old at the time of the incident, and he was charged with second-degree murder, a Class B felony, and first-degree manslaughter, a Class 1 felony. South Dakota law requires that a child charged with Class B and Class 1 felonies be tried in circuit court as an adult. SDCL 26-11-3.1. The law allows the child to request a transfer hearing “to determine if it is in the best interest of the public that the child be tried in circuit court as an adult.” Id. If the child is sixteen years of age or older, “there is a rebuttable presumption that it is in the best interest of the public that [the] child ... be tried as an adult.” Id. The statutory factors for the court to consider are as follows:

(1) The seriousness of the alleged felony offense to the community and whether protection of the community requires waiver;
(2) Whether the alleged felony offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the alleged felony offense was against persons or property with greater weight being given to offenses against persons;
(4) The prosecutive merit of the complaint. The state is not required to establish probable cause to show prosecutive merit;
(5) The desirability of trial and disposition of the entire felony offense in one proceeding if the child’s associates in the alleged felony offense are adults;
(6) The record and previous history of the juvenile;
(7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if the juvenile is found to have committed the alleged felony offense, by the use of procedures, services, and facilities currently available to the juvenile court.

SDCL 26-11-4.

[¶ 7.] If the court determines that the child should be tried as an adult in circuit court, the court is required to enter an order and findings of fact. Id. The trial court’s findings “may not be set aside upon review unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Id. As to the seven factors in SDCL 26-11-4, we have stated: “ ‘It is not necessary that evidence be presented on all of these factors at each transfer hearing, or that the trial court must make express findings on each factor.’ ” State v. Milk, 519 N.W.2d 313, 318 (S.D.1994) (citations omitted). In addition, “[c]ontrolling weight is not given to any one factor, and the court is not ‘confined to a consideration of only the listed factors to the exclusion of others.’ ” Id. (citation omitted).

[¶ 8.] Consequently, our initial task is to review the findings of fact of the trial court. In its findings, the trial court considered the statutory factors in light of the transfer hearing evidence. Applying the factors, the court found that the alleged offense was (1) “an extremely serious ... felony offense,” (2) “committed in an aggressive, violent and premeditated manner,” (3) “was against a person,” as opposed to property, and (4) had prosecutive merit. Factor (5) did not apply since the disposition did not involve associates. Factor (6) was favorable to Krebs since he had “no prior criminal record or previous history as a juvenile.” The trial court specifically pointed out that “Krebs voluntarily brought a knife to a situation where he expected conflict and therefore expected that someone could be killed by his action.” “[I]f you take a knife ... to a place where you expect conflict,” the court pondered, “then you expect to possibly have to use that knife.” The court entered a written finding that “the evidence indicates a deliberate intent to take a weapon to a fight under circumstances where [Krebs] anticipated conflict; further, the victim in this case suffered five stab wounds.”

[¶ 9.] As to factor (7), the trial court initially determined that the system had “sufficient resources for the likely reasonable rehabilitation of the juvenile.” Nevertheless, the trial court found that the prospect for adequate public protection if Krebs were convicted was small because of the lack of procedures, services, and facilities available in the juvenile system. Based on these findings, the court determined that it-was not in the best'interests of the • public for Krebs to be tried in juvenile court.

[¶ 10.'] Krebs claims that the trial court’s'' findings are clearly erroneous. Specifically, Krebs asserts that two of the finding's contradict each other. In one finding; the court determined that the juvenile system had resources to rehabilitate Krebs. In a following finding, the court determined that the juvenile procedures, sérvices, and facilities could not adequately protect the public from Krebs. If he can be rehabilitated, Krebs argues, the public is protected. " Krebs also claims that there ivas insufficient proof of an aggressive, violent, or premeditated act or that carrying a knife to a fight constitutes knowledge that someone could be killed.

[¶ 11.] Much of the evidence upon which the trial court based its findings was undisputed. The evidence revealed that Krebs and his friends went to a party anticipating a fight between two girls. One of the girls was a friend of Krebs’s group, Krebs took his knife with him to the party. The anticipated fight between the girls ensued. Fighting then broke out between members of Krebs’s group and the group at the party. During the fight, Krebs ended up in a struggle with Darrow and -stabbed Darrow. There was no evidence that Darrow had been armed. The coroner testified that Darrow suffered five stab wounds and died as the result of a stab wound to the abdomen which perforated the abdominal artery. The coroner also testified that Darrow’s lethal stab wound matched the knife recovered from the roof of Krebs’s apartment building.

[¶ 12.] Based on these undisputed facts, the court was justified in finding that the-offense was a serious felony. Even assuming that premeditation was not supported by the evidence as Krebs claims, the evidence supported a finding that a serious, violent crime against a person resulting in a death had occurred. The statute does not require that the court make a finding of premeditation. The statute only requires the court to consider “[w]hether the alleged felony offense was committed in an aggressive, violent, premeditated, or willful manner.” SDCL 26-11^4(2) (emphasis added). Because the statute lists the factors in the disjunctive, the manner of the crime can be aggressive, violent, premeditated, or willful. Although the court found all four, any one or more of the four factors would have sufficed. We cannot say that this finding is clearly erroneous.

[¶ 13.] Krebs argues that the court’s findings regarding rehabilitation prospects and protecting the public were contradictory. The circuit court was convinced by the evidence that Krebs could be rehabilitated but still found that the juvenile system could not protect the public. Although this may seem contradictory, it is not. The two factors for the court to consider involve two separate concepts. One factor is the likelihood of reasonable rehabilitation of the child in the juvenile system. The other factor is whether the juvenile system, as established, can protect the public. The rehabilitation factor requires only a likelihood that the child can be rehabilitated. Even though a penal system contemplates rehabilitation, it must also establish safeguards for the consequences that may result when it fails to rehabilitate. Thus, a correctional facility establishes rehabilitation programs but still maintains secure facilities for the protection of the public. The judge determined that those safeguards were lacking in the juvenile system. One of the judge’s concerns was that the juvenile system would lose jurisdiction of Krebs when he reached the age of 21. The judge expressed concern regarding whether the juvenile system could deal with “what was going on” with Krebs within that time period. The judge said to the parties at the end of the hearing:

There is nothing in [Krebs’s] character that supports the purpose to take a life or to cause injury to other people. This raises a conflict for me.
The question is what is in the best interest of society. And I know that we lose jurisdiction on this case when you reach 21. And I’m not satisfied we know fully what’s going on or how this occurred.
Were this act not committed, I’d expect you to run for president or have every other opportunity to be a very positive, contributing member of our community. And I don’t think anybody here would question your character or your personality or your abilities.
But this act flies in the face of that and leaves me with a concern about your future potential assuming the scenario that I’ve shared stands unaddressed.
And while I believe the juvenile system has resources, I don’t know that I can say with sufficient satisfaction that the State — -that the defendant has overcome the burden....

The trial court was not clearly erroneous in its determination. The evidence before him depicted, on the one hand, a young man with a lot of potential who would probably do very well in the juvenile system. On the other hand, the judge saw the violence of which the young man was capable. These diametrically opposed characteristics convinced the judge of the need for rehabilitative services beyond the age of 21.

[¶ 14.] Additionally, the trial court’s inquiry recognized the rebuttable presumption created by the Legislature. Under the law it is presumed that it is in the public’s best interest to try Krebs as an adult. Consequently, transfer was proper only if evidence rebutted that presumption and indicated that it was in the public’s interest to transfer jurisdiction to juvenile court and if doing so would be in Krebs’s best interest. This Court has stated that even where it is in the juvenile’s best interest to be tried as a juvenile, “that is not the only criteria to be considered.” In re S.K., 1999 SD 7, ¶ 39, 587 N.W.2d 740, 746. Rather, the interests of the public govern, and it must be in both the interests of the child and the public for the child to be tried as a juvenile. Id. The trial court determined that the presumption had not been rebutted. We cannot say that the trial court’s findings were clearly erroneous or that his decision not to transfer Krebs to juvenile court was an abuse of discretion.

State’s Untimely Disclosure of Inculpato-ry Evidence

[¶ 15.] Prior to Krebs’s trial, the court imposed a deadline by which the state was to disclose “[a]ll statements considered by the prosecution to be relevant to the alleged crime made by any person which would tend to incriminate or exculpate [Krebs], whether reduced to writing or not.” On the third day of trial, the State called a female witness to the stand. The State had not disclosed the witness as possessing inculpatory evidence, and the State did not indicate the full nature of her testimony in its opening statement. The witness testified that Krebs and his two male friends came to her house around 5:00 p.m. on Saturday, July 12, the afternoon of the stabbing, and stayed until the next morning. While they were there, the witness claimed she observed one friend hit Krebs in the face, arms, and legs in ways that “looked like it hurt.” She also testified that the boys were purposely scratching- themselves and each othér on their arms and stomachs. According to the witness, Krebs jokingly stated that “he killed before and he’d kill again.” She also testified that on Sunday morning, July 13, she saw the trio laughing and bumping knuckles as they read newspapers.

[¶ 16.] When she was first interviewed by authorities, the witness did not inform them of her observations because “they didn’t ask” and she did not think her observations were important. To the witness, “it just seemed like they were being teenage boys and fighting and hitting each other and wrestling around.” She testified that she did not tell anyone, including law enforcement, of her observations until she told the State’s attorney during trial preparation the weekend before the trial started.

[¶ 17.] After her testimony, Krebs moved for a mistrial. He argued that the evidence violated the discovery order requiring the State to notify the defense of all inculpatory statements. The State’s attorney admitted that the information was discovered the weekend before trial and had not been disclosed. He argued, however, that the information was work product and not subject to the discovery order. The trial court denied Krebs’s motion for a mistrial. The court found that the State did not violate the discovery order by failing to notify Krebs upon discovery of the inculpatory evidence. Because he determined that no violation occurred, the trial court imposed no sanctions or remedial measures. See SDCL 23A-13-17 (Rule 16(d)(2)).

[¶ 18.] At oral argument in this appeal, the State conceded that the Pennington County State’s Attorney violated the discovery order by failing to provide inculpa-tory evidence and that the undisclosed evidence was not protected by the work product doctrine. Regardless of the discovery order violation, however, the State claims that Krebs suffered no prejudice. Krebs, on the other hand, contends that he was prejudiced. He claims that without knowledge of the incriminating nature of the testimony, he was unable to prepare countering evidence or to present opposing expert testimony that his injuries were not self-inflicted.

[¶ 19.] At trial, Krebs moved for a mistrial immediately after the testimony was presented. When a party makes such a motion, “[t]he decision to grant or deny a mistrial must be based on the prejudicial effect of the witnesses] statement,” and “ ‘[prejudicial error’ is error which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” State v. Michalek, 407 N.W.2d 815, 818-19 (S.D.1987) (citations omitted). Similarly,.when a discovery order is violated, the inquiry is whether the defendant suffered any material prejudice as a result of the late disclosure. State v. Archambeau, 333 N.W.2d 807, 810-11 (S.D.1983). We have established that “[ajlthough a trial court’s order for the production of evidence must be expeditiously carried out and obeyed, not every failure to produce evidence as ordered is, without more, prejudicial error.” Id. at 811. “[Ijmplicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” Marshall v. State, 305 N.W.2d 838, 843 (S.D.1981) (citation omitted). We recently reiterated our standard of review:

We presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard. The test for abuse of discretion “is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” If error is found, it must be prejudicial in nature before this Court will overturn the trial court’s evidentiary ruling. “Error is prejudicial when, in all probability ... it produced some effect upon the final result and affected rights of the party assigning it.”

State v. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d 538, 544 (citations omitted). Thus, our standard of review for the violation of a discovery order mirrors the standard applied when reviewing both mistrial motions and evidentiary issues.

[¶20.] In order to determine whether Krebs was prejudiced by the undisclosed evidence, we examine the nature of the testimony and its effect on the jury. The evidence was highly relevant to Krebs’s self defense theory. Since Krebs admitted stabbing Darrow, his only defense was that he had done so to meet Darrow’s aggressive actions against him during the fight. Thus, the main issue for the jury was whether Krebs was acting in self defense. The State presented the undisclosed testimony to dispute Krebs’s claim. The witness’s testimony was the only testimony suggesting that Krebs’s injuries were self-inflicted and conflicting directly with other testimony describing Krebs’s injuries and demeanor. The defense had no notice of the inculpatory nature of this witness’s testimony prior to the time she testified at trial. On cross examination, the witness said that she had not told anyone — not even the police — this version of her observations until she informed the State’s attorney while preparing her testimony the weekend before trial. The State’s attorney learned of the inculpatory evidence at least four days before the witness testified, yet he did not inform the defense or the court.

[¶ 21.] The testimonial evidence was not only inculpatory, it completely undercut Krebs’s defense. This fact distinguishes State v. Moran where we found that a discovery order violation was adequately remedied, even though undisclosed DNA evidence was admitted at trial, 2003 SD 14, ¶¶ 17-24, 657 N.W.2d 319, 324-26. There, the DNA evidence was not central to the defense that the victim consented to sexual intercourse, and therefore “it would have been futile for [the defendant] to hire his own DNA expert.” Id. ¶ 23, 657 N.W.2d at 326. In this case, simply offering the testimony of Krebs and his two male friends, whose biases were specifically argued by the State, was not enough to cure the prejudice that resulted from the late disclosure. 'Nor was it within the expertise of the jury to be able to view the photos of Krebs, taken shortly after his arrest, and determine for themselves whether his wounds were self-inflicted. Had Krebs expected the introduction of such evidence, he could have taken further action to counter its damaging effect.

[¶ 22.] The probability of the effect of the testimony upon the jury is, in part, evidenced by its prominence in the State’s final argument. In final argument, the State’s attorney included this statement concerning the witness’s testimony:

[The witness] testified she doesn’t know Chance Darrow ... or anybody else associated with [Darrow]. She also testified that until that day she didn’t know [Krebs]. She thought they were being idiots, smacking each other around and scratching each other. She didn’t know. What did that mean? They were enhancing their injuries because they know their story about self defense is bogus.

Further, in the penultimate paragraph of its rebuttal, the State asserted the following:

I submit to you that [the witness’s] credibility is enhanced by the fact that not only were [Krebs and his friends] bumping knuckles, they admitted to that, because there was no way around it.

The State’s attorney considered the persuasiveness of the testimony to be of such importance that he mentioned it twice in his final argument. Almost as its final word to the jury, the State argued that the witness’s testimony was more believable than the testimony of Krebs and his friends.

[¶ 23.] As we have noted, “[discovery statutes exist to eliminate trial by ambush.” State v. Sorenson, 2000 SD 127, ¶ 9, 617 N.W.2d 146, 148 (citation omitted). Yet an ambush is exactly what occurred here, where “the [S]tate was anything but conscientious and candid.” State v. Sahlie, 90 S.D. 682, 688, 245 N.W.2d 476, 479 (1976). The failure to disclose the inculpa-tory testimony materially prejudiced Krebs’s defense and constitutes reversible error. Therefore, we remand for a new trial.

Video Tape Evidence — Probative Value verses Prejudicial Effect

[¶ 24.] Krebs also claims that the trial court erred in admitting a videotape. The video came from the camera mounted on the dashboard of the responding officer’s vehicle. On his way to the scene, the officer encountered a car driven by Darrow’s girlfriend which carried Darrow and his friend Michael. The video captures the stop and the emotional interactions between the officer, Darrow’s girlfriend, Darrow’s friend Michael, and a second responding officer. For a short time, Darrow can be seen in the background of the video through the back window of the car; he then slumps from view. The video next shows the arrival of emergency personnel and their removal of Darrow’s body from the car. Finally, the video shows the officer’s short trip down Melody Lane to the site of the party and his entry into the driveway.

[¶ 25.] Although the State produced the video after the discovery deadline, Krebs did not claim that he was prejudiced by its untimely production. Rather, Krebs moved to exclude the tape because it was not relevant and highly prejudicial. Despite our remand for a new trial, we address the admissibility of the videotape because of the likelihood that the issue may arise again on remand.

[¶ 26.] We review evidentiary rulings of the trial court under an abuse of discretion standard. We have said,

“For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred.... [A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.”

State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993) (citation omitted). In this case, the trial court did not initially admit the video because it was not relevant and its prejudicial effect outweighed its probative value. The State persisted and then offered the tape without the sound to show “the passenger getting out of the vehicle” and to show “the crime scene and the darkness of the area as the vehicle is traveling down that road.” After viewing the tape with counsel without the sound, the judge allowed the tape to come in “to show what occurred at that particular time.” The judge stated that removing the sound “takes away at least enough of the prejudice that it makes it probative enough for the State to use in their case in chief, to show what occurred at that particular time, and I am going to allow it for that purpose.”

[¶ 27.] Although the trial court’s ruling on relevancy is somewhat vague, we cannot say the admission of the video was an abuse of discretion. Because the sound was removed, the court was satisfied that the tape’s prejudicial effect was adequately reduced. The trial court found that the probative value of the scene depicted on the tape outweighed its prejudicial impact and that it should be presented to the jury. Under our standard of review, we cannot say that the trial court abused its discretion.

[¶ 28.] Krebs also raised the issue of whether the trial court erroneously allowed the admission of prior bad acts evidence under SDCL 19-12-5 (Rule 404(b)) without prior notice from the State. Because we reverse for a new trial, we need not reach this issue.

[¶ 29.] We affirm the trial court’s decision to transfer Krebs to circuit court. Because of the prejudicial admission of undisclosed inculpatory evidence, however, we reverse and remand for a new trial.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.

[¶ 31.] KONENKAMP and ZINTER, Justices, concur in part and concur in result in part.

ZINTER, Justice

(concurring in part and concurring in result in part).

[¶ 32.] I concur on all issues except issue three. On issue three, I concur in result because admitting the video tape simply “to show what occurred at that particular time,” did not establish relevance. Nevertheless, the video tape was relevant to support the reliability of two witnesses whose testimony refuted Krebs’s claim of self-defense. Therefore, it was admissible.

[¶ 33.] “It is well settled that photographic images] are generally admissible where they accurately portray anything that a witness may describe in words. They are also admissible when they are helpful in clarifying a verbal description of objects and conditions. They must, however, be relevant to some material issue.” State v. Owens, 2002 SD 42, ¶ 89, 643 N.W.2d 735, 756-57 (citing State v. Holland, 346 N.W.2d 302, 307). In this case, Krebs relied on a claim of self-defense. “When a defendant raises the affirmative defense of self-defense, it is incumbent upon the State to prove beyond a reasonable doubt that the killing was without authority of law.” State v. Knecht, 1997 SD 53, ¶ 10, 563 N.W.2d 413, 418 (quoting State v. Burtzlaff, 493 N.W.2d 1, 7 (1992) (citations omitted)). This burden of persuasion made evidence disproving self-defense relevant.

[¶ 34.] As the Court notes, Judge Trim-ble initially allowed the video tape into evidence “to show what [was occurring] at that particular time.” Supra ¶26. But additionally, in the pretrial ruling on admissibility, Judge Trimble also noted that it was possible the video could be used for other purposes at trial, such as determining credibility or impeaching a witness. As it turned out, he was precisely correct. The State used the video to establish the reliability of statements made by two witnesses who refuted Krebs’s claim of self-defense.

[¶ 35.] The State introduced the video tape during the testimony of Deputy Sheriff Mark Osborne. Osborne was one of the responding officers that stopped the ear transporting Darrow to the hospital immediately after the stabbing. During this stage of the incident, Osborne observed two witnesses make statements regarding what had occurred. Osborne first observed Darrow’s girlfriend (C.H.), who had been at the scene when the stabbing occurred, state that two males rushed the victim (Darrow) to fight him. This statement was contrary to Kreb’s claim of self-defense. Krebs, however, contended that C.H.’s statement was biased and untruthful because she was the victim’s girlfriend. The video was used to prove that at the time her statement was made, C.H. was crying and in a hysterical state, and therefore, the statement was a reliable excited utterance. As the State argued in its closing statement, C.H.’s physical state, as depicted on the video, tended to prove that her comments were made while she was under the excitement of the stabbing; thus, she had no time to reflect on her comments or fabricate untruthful statements. See State v. Bult, 351 N.W.2d 731, 735-36 (S.D.1984) (stating “that a person under the sway of excitement precipitated by an external startling event will be bereft of the reflective capacity essential for fabrication and that, consequently, any utterance [s]he makes will be spontaneous and trustworthy”). Thus, the video tape was relevant because it tended to corroborate C.H.’s statement, which tended to prove that Krebs was the aggressor rather than acting in self-defense.

[¶ 36.] The video tape was also relevant because it supported Michael Wiseley’s testimony. In support of his self-defense claim, Krebs contended that he and his friends were “ambushed” and outnumbered by the individuals who were already at the party, including Wiseley. The State attempted to disprove this contention by establishing that Wiseley and other “ambushing” individuals were not involved in or even close to the fight. In attempting to prove this point, the State called Wise-ley, who testified that he was not involved in the fight and that he only saw the very end of the incident when Krebs and his friends were running away.

[¶ 37.] The video tape supported Wise-ley’s testimony because it provided an image of his physical appearance immediately after the fight. The tape displayed that Wiseley’s clothes were straight, clean, and not torn and that he had no visual signs of physical injury. From this image, a viewer could infer that Wiseley was not recently involved in a fight. As a result, the video’s depiction of Wiseley’s physical condition immediately after the fight was relevant to support his testimony that he was not involved in a fight with Krebs.

[¶ 38.] In sum, the defense claimed self-defense. To support that theory, the defense attempted to portray C.H. as biased and untruthful and Wiseley as an aggressor. The State had the burden of disproving Krebs’s claims. To meet its burden, the State used the video tape to support C.H.’s statement and Wiseley’s testimony, both of which tended to disapprove self-defense. For these reasons, the video was relevant, and the trial court did not abuse its discretion in admitting it into evidence.

[¶ 39.] KONENKAMP, Justice, joins this special writing.

      . The trial court made both oral and written findings.

      . Under Rule 16(d)(2) of the Rules of Criminal Procedure,
      If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order stich party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.
      SDCL 23A-13-17.

      . The witness testified on the third day of the five day trial.

      . In its closing argument, the State argued "there was no self-defense here, and [Krebs] knows it. And [Krebs and his friends Steve and Brian] all knew it.... [Steve’s] best friend was on trial for murder. [Brian’s] friend was on trial for murder. Jessie Krebs is on trial for murder. Who has the most to lose; who has the most to gain?”

      . This witness's testimony is not the only evidence which the State failed to disclose in violation of the trial court’s orders. The State did not produce the video from the police car's dashboard camera until approximately one week before trial. Further, not until after the jury was selected did Krebs receive a police report referring to a witness who, at some time during the party, was injured in a fight. Finally, on the second day of trial, the State produced a videotaped interview of Michael Wisely, one of the State's witnesses and a friend of Darrow. As to the dashboard tape, Krebs's motion in limine to exclude was denied, and that issue on appeal is considered herein. See infra ¶¶ 24-27. Krebs also made several motions for mistrial based on the other late productions by the State, but those motions were also denied. While Krebs did not raise these issues on appeal, it shows a dilatory pattern by the State’s attorney which the defendant had to deal with throughout the proceedings.

      . The trial court also ruled that the videotape was not unduly prejudicial. Photographic images "are not rendered inadmissible merely because they incidentally tend to arouse passion or prejudice.” Owens, 2002 SD 42, ¶ 89, 643 N.W.2d at 757 (citations omitted). Rather, it is .only evidence that attempts to persuade "in an unfair or illegitimate manner” that is legally, unduly prejudicial. State v. Mattson, 2005 SD 71, ¶ 20, 698 N.W.2d 538, 546. In this case, Judge Trimble only allowed the video tape to be played without the audio. A review of the video tape without the audio confirms that it was hot unduly prejudicial. It depicts the mental and physical state of two witnesses who were stopped as they were driving the victim to the hospital immediately after the stabbing. Although the video also depicts ambulance personnel removing the victim from the vehicle,' there was no request to redact this portion. The remaining portions do not attempt to persuade in an unfair or illegitimate manner.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    James B. WILSON, as Administrator of the Estate of Lily M. Wilson, Deceased, Appellant, v. FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. 04-0864.
    Supreme Court of Iowa.
    May 12, 2006.

      Sara Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
    Brian C. Ivers of McDonald, Woodward & Ivers, P.C., Davenport, for appellee.
   LAVORATO, Chief Justice.

In an underlying tort suit, an insured obtained a jury verdict against an underin-sured motorist. Following the verdict, the district court reduced it by the percentage of fault the jury attributed to the insured and entered judgment for the reduced amount. Following entry of the judgment, the insured filed a motion to correct the judgment by increasing it to reflect the jury’s determination regarding loss of consortium claims. The court granted the motion and entered an amended judgment.

The insured sued its insurer on a contract claim to recover underinsured motorist benefits in the amount of the amended judgment entry less the underinsured motorist’s liability limits pursuant to the insured’s underinsured motorist (UIM) coverage. The insured also joined a claim for bad faith against the insurer for its failure to pay the insured’s demand for the under-insured benefits. The court granted the insured’s motion for summary judgment on its contract claim in part and denied it in part. In granting the motion, the court ruled that a consent-to-be-bound provision under the insured’s UIM coverage was contrary to public policy and therefore unenforceable. In denying the motion, the court allowed the insurer to relitigate the issue of damages in the underlying tort suit. The district court granted the insurer’s motion for summary judgment as to the insured’s bad faith claim.

The insured filed an application for interlocutory appeal, which we granted.

We conclude the insurer is bound by the original judgment entry but not bound by the amended judgment entry. We also conclude that as a matter of law the insurer was not in bad faith in denying the insured’s demand. Finally, we conclude the consent-to-be-bound provision is valid and enforceable. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

On November 30, 1999, Lily M. Wilson walked across a road to retrieve her mail from a mailbox that was located across the road from her home. While walking back to her home, Wilson was struck by a vehicle driven by Margie Carter. Later that day, Wilson died of her injuries suffered in the incident.

Wilson had automobile insurance with Farm Bureau Mutual Insurance Company, which included medical pay coverage of $5000 and UIM coverage of $100,000. Carter had automobile insurance through Hartford Insurance Company with liability limits of $100,000 (each person) and $300,000 (each occurrence).

Wilson’s policy provided in part the following:

REPORTING A CLAIM — INSURED’S DUTIES
4. Other Duties Under ... Under-Insured Motor Vehicle ... Coverage[ ] The person making claim also shall:
d. under the ... under-insured motor vehicle coverage[], send us at once a copy of all suit papers when the party liable for the accident is sued for these damages.
Coverage I — Under-Insured Motor Vehicle
We will pay damages for bodily injury an insured is legally entitled to recover from the owner or operator of an under-insured motor vehicle. The bodily injury must be caused by an accident and arise out of the ownership, maintenance or use of an under-insured motor vehicle.
THERE IS NO COVERAGE UNDER COVERAGES H OR I:
1. FOR ANY INSURED WHO, WITHOUT OUR WRITTEN CONSENT, SETTLES WITH ANY PERSON OR ORGANIZATION WHO MAY BE LIABLE FOR THE BODILY INJURY.
Written Consent Requirement — Coverage H and I
We are not bound by any judgment against any person or organization obtained without our written consent.

[Hereinafter referred to as the consent-to-be-bound provision.]

A. Suit I. In February 2000 Wilson’s estate sued Carter for damages to the estate and for loss of consortium suffered by the decedent’s surviving children. On July 18 the estate’s attorney wrote Farm Bureau notifying it of the estate’s intention to make a claim for UIM benefits for the estate under Wilson’s policy. Enclosed with the letter was a copy of the amended and substituted petition filed on behalf of the estate against Carter and Carter’s answer to the petition. The letter further notified Farm Bureau that the estate’s attorney had learned through discovery that Carter’s liability limits were $100,000/$300, 000, which the attorney believed were insufficient to cover the estate’s damages.

On February 6, 2002, a jury returned a verdict in the estate’s favor and against Carter as follows: $7906.81 for interest on reasonable burial expenses, $6888.50 for the reasonable value of medical expenses, and $145,000 for loss of consortium suffered by the decedent’s surviving children for a total of $159,795.31.

During the trial, the district court submitted an instruction, which neither party objected to, informing the jury that “[t]he fault of the person whose injury or death provides the basis for the consortium claim of Lily Wilson’s children does not bar or reduce the consortium recovery.” The jury verdict form relating to the consortium claims stated in part: “State the amount of damages sustained by the children due to loss of parental services or parental consortium proximately caused by defendant’s fault. Do not take into consideration any reduction of damages due to Lily Wilson’s fault.” Neither party objected to this verdict form.

The jury found Wilson twenty percent at fault and Carter eighty percent at fault. After the jury returned its verdict, the district court reduced the total jury award, including the loss of consortium award, by twenty percent. The court reduced the loss of consortium award by twenty percent because it believed that it had instructed the jury incorrectly that the decedent’s fault does not reduce the consortium claims. See Iowa Code § 668.3(1)(&) (2005) (any damages for consortium will be reduced by the percentage of fault attributed to the person who provides the basis for the consortium damages); id. § 668.3(4) (the court shall determine the amount of damages payable to each party in accordance with the findings of the court or jury). This reduced the verdict from $159,795.31 to $127,836.25.

In response to the court’s action, the estate filed a motion on February 20 to correct judgment entry. The estate alleged that the instruction, even though an incorrect statement of the law, became the law of the case. For that reason, the estate further alleged, the judgment entry should be corrected to reflect that the consortium damages are not reduced by the decedent’s fault. That same day, the district court entered an amended judgment entry for the medical expenses and interest on burial expenses reduced by the percentage of fault attributed to the decedent and for the full loss of consortium damages as the jury had awarded. The total amended judgment as entered was $156,836.25, together with interest as provided by law.

In the meantime, on February 11, Carter’s attorney offered the estate Carter’s policy limits of $100,000, which the estate conditionally accepted on February 13. The condition was that Carter was to provide proof of inability to pay the excess judgment. Carter subsequently provided such proof, and the estate entered a satisfaction of the judgment in return for payment of $100,000 on March 14.

On March 8 the estate made a demand on Farm Bureau for $56,836.25, which represented the balance of the amended judgment entry minus Carter’s $100,000 policy limits. In the demand, the estate agreed to waive pre-and postjudgment interest. Farm Bureau rejected the demand and offered $22,000 in settlement, which the estate rejected.

B. Suit II. On May 9, 2002, the estate sued Farm Bureau for breach of contract for the underinsured damages and for bad faith. The estate later filed an amended and substituted petition. Farm Bureau’s amended answer raised several affirmative defenses, the following of which are pertinent to this appeal: (1) the judgment was not obtained with Farm Bureau’s written consent, (2) the judgment has no res judi-cata effect because Farm Bureau was not a party to the underlying tort suit, and (3) the judgment is not an amount the insured was “legally entitled to recover,” making the amount fairly debatable.

On January 23, 2004, the estate filed a motion for summary judgment. The estate sought summary judgment on its breach of contract claim but not on its bad faith claim. As to the latter, the estate maintained genuine issues of material fact existed on that issue.

Farm Bureau filed a resistance to the estate’s summary judgment motion and a counter motion for summary judgment. Farm Bureau contended that there were genuine issues of material fact as to the estate’s breach of contract claim and no genuine issue of material fact as to the estate’s bad faith claim.

The district court granted the estate’s motion for summary judgment in part and denied it in part. In granting the motion, the court ruled that the consent-to-be-bound provision was contrary to public policy and therefore unenforceable. In denying the motion, the court concluded the amended judgment entry was correct. However, the court also concluded that “Farm Bureau would be unfairly prejudiced if bound by a judgment resulting from erroneous jury instructions, given without objection by Carter’s attorney, which became the law of the case.” Consequently, the court allowed Farm Bureau to relitigate the issue of damages in the underlying tort suit. Finally, the court sustained Farm Bureau’s motion for summary judgment on the estate’s bad faith claim.

The estate filed an application for interlocutory appeal and an application to stay district court proceedings. We granted both applications.

II. Issues.

In this appeal, the estate’s challenge to the district court’s ruling on its motion for summary judgment on its contract claim raises two issues. First, is Farm Bureau bound by the amended judgment entry in suit I? Second, if Farm Bureau is not bound by the amended judgment entry, is it bound by the original judgment entry in suit I? The estate also challenges the district court’s ruling granting Farm Bureau’s motion for summary judgment on the estate’s bad faith claim.

III. Scope of Review.

We review a ruling on a motion for summary judgment for correction of errors at law. Dickens v. Associated Anesthesiologists, P.C., 709 N.W.2d 122, 125 (Iowa 2006). Summary judgment must be granted

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 1.981(3). “Summary judgment is appropriate if the only conflict concerns the legal consequences of undisputed facts.” Farmers Nat’l Bank of Winfield v. Winfield Implement Co., 702 N.W.2d 465, 466 (Iowa 2005). We therefore concern ourselves with two questions: whether there is a genuine issue of material fact and whether the district court correctly applied the law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005).

IV. Is Farm Bureau Bound By the Amended Judgment Entry in Suit I?

In denying the estate’s motion for summary judgment, the district court concluded that

Farm Bureau would be unfairly prejudiced if bound by a judgment resulting from erroneous jury instructions, given without objection by Carter’s attorney [in suit I], which became the law of the case. Under the unusual facts in this record, Farm Bureau should be afforded an opportunity to relitigate the issue of underinsured damages due the plaintiff.

This ruling raises the question whether Farm Bureau. is bound by the amended judgment entry in suit I. On this issue, we must first look to the language of the UIM provision in the decedent’s policy with Farm Bureau. See Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 584 (Iowa 2004).

In American Family Mutual Insurance Co. v. Petersen, we were concerned with the binding effect of a default judgment in the context of an uninsured motorist (UM) provision providing that the insurer would pay damages for bodily injury that the insured is legally entitled to recover from the uninsured motorist. Id. Although here we are dealing with a UIM provision, the following language in Petersen applies with equal force to such a provision:

In considering the binding effect of the judgment, we are mindful that the issue is presented only in the context of an action to enforce the UM provisions of an insurance policy requiring the insurer to pay the insured damages which the insured “is legally entitled to recover” from the uninsured motorist. Consequently, the binding effect of the tort judgment at issue in this case is not necessarily governed by the doctrine of res judicata and collateral estoppel; the language of the contract between the parties is the primary source of the parties’ respective rights. If an insured establishes legal entitlement to damages against an uninsured motorist, then the insurer is contractually obligated to pay the insured the damages as specified in the insurance policy. An insured generally satisfies the “legally entitled to recover” condition of UM coverage when a valid judgment has been entered against the uninsured motorist.

Id. (emphasis added) (citations omitted). Thus, assuming the other terms and conditions of the policy are satisfied, once the insured obtains a valid judgment against the underinsured motorist, the insurer is obligated pursuant to the terms of the policy to pay the amount of the judgment that exceeds the liability coverage of the underinsured motorist up to the limit of the UIM coverage.

An insured establishes the legally entitled to recover requirement by proving the underinsured motorist was liable and the amount of damages. Id. at 584 n. 3. The insured is allowed to meet this burden either in an action against the underinsured motorist or in an action against the insurer. Id.; Handley v. Farm Bureau Mut. Ins. Co., 467 N.W.2d 247, 249 (Iowa 1991).

Although securing a valid judgment against an underinsured motorist can establish the insured’s right to recover UIM benefits, the UIM coverage provisions here impose other conditions that could require relitigation of the liability and damages issues. See Petersen, 679 N.W.2d at 584-85. In Petersen, we held the default judgment against the uninsured motorist was not binding on the insurer because the insured had not given adequate notice to the insurer of its suit against the uninsured motorist as required by the policy. Id. at 585. Because the notice issue in Petersen was dispositive, we did not consider the effect of a policy provision that provided that the insurer was not bound by any judgment without its “ ‘consent’ to the suit.” Id.

In its motion for summary judgment on the contract claim, the estate contended in the district court as it does on appeal that (1) the amended judgment entry in suit I conclusively established what the estate is legally entitled to recover from Farm Bureau and (2) issue preclusion is not an available defense to avoid the binding effect of the amended judgment entry. In response, Farm Bureau contends, as it did in the district court, that (1) the amended judgment entry in suit I did not conclusively establish what the estate is legally entitled to recover under the policy and (2) Farm Bureau could only be bound by the principles of issue preclusion.

As to the amended judgment entry, Farm Bureau raised a number of defenses to the estate’s motion for summary judgment on its contract claim, all of which Farm Bureau raises here. We address only one of those defenses because we think it is dispositive of the issue. The defense is based on the written consent-to-be-bound provision pertaining to UIM coverage. As mentioned, this provision provides as follows: “We are not bound by any judgment against any person or organization obtained without our written consent.”

This requirement is commonly referred to as a “consent-to-sue” provision, but it is more accurately described as a “consent-to-be-bound” provision. Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487, 491 n. 3 (Colo.1998). The consent-to-be-bound provision has been widely litigated. Some courts have declared such provisions to be void or invalid and hold that tort judgments against the underinsured motorists are generally binding on the insurer. Reasons given by such courts for this holding include the following: (1) “[I]t is generally against public policy for the insurer to restrict the insured’s right to trial by jury of the action against a negligent motorist,” Keel v. MFA Ins. Co., 553 P.2d 153, 157 (Okla.1976); (2) Such provisions “are contrary to public policy because they present arbitrary barriers to the recovery of statutorily mandated benefits,” Kwong v. Depositors Ins. Co., 627 N.W.2d 52, 56 (Minn.2001); (3) An insurance company could unreasonably and arbitrarily withhold consent, Kremer v. Am. Family Mut. Ins. Co., 501 N.W.2d 765, 768-69 (S.D.1993); and (4) Declaring consent-to-be-bound provisions void or invalid promotes the policy of avoiding a multiplicity of lawsuits, Nationwide Mut. Ins. Co. v. Webb, 291 Md. 721, 436 A.2d 465, 473 (1981). The district court, relying on Kwong, found the consent-to-be-bound provision in the Farm Bureau policy contrary to public policy and unenforceable.

Recognizing that the insurer has some legitimate concerns about protecting its interests, the court in Kwong concluded that “[t]hose interests can be adequately safeguarded by requiring that the insurer ‘receive notice of, and an opportunity to [intervene and] participate in, the insured’s personal injury claim.’ ” Kwong, 627 N.W.2d at 57 (citation omitted). Several courts have followed the same approach. See, e.g., Webb, 436 A.2d at 475-78; Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606, 611-12 (1969); Keel, 553 P.2d at 157-58; Kremer, 501 N.W.2d at 769.

Following this approach here would be problematic because of our decision in Handley v. Farm Bureau Mutual Insurance Co., 467 N.W.2d 247 (Iowa 1991). We held in that case that it was an abuse of discretion not to sever the tort claim against the underinsured motorist from the contract claim against the insurer for UIM benefits. Handley, 467 N.W.2d at 250. We reasoned that evidence of insurance would cause the jury to return a larger verdict against the underinsured motorist than it would have if it were unaware that insurance existed. Id. We therefore concluded that potential prejudice could be avoided by severing the claims against the insurer from the claim against the underinsured motorist. Id. Facing a similar problem, the court in Keel simply overruled its prior holding and permitted the joinder of an insurer as a party defendant in an action against an uninsured motorist. See Keel, 553 P.2d at 158.

Other courts have upheld the validity of consent-to-be-bound provisions. See, e.g., Gulf Am. Fire & Cas. Co. v. Gowan, 283 Ala. 480, 218 So.2d 688, 693-94 (1969); MFA Mut. Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252, 256 (1968); Moorcroft v. First Ins. Co. of Haw., 68 Haw. 501, 720 P.2d 178, 179-80 (1986); Baron v. Coronet Ins. Co., 47 Ill.App.3d 95, 5 Ill.Dec. 476, 361 N.E.2d 799, 802 (1977); Allstate Ins. Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106, 110-11 (1969); Poray v. Royal Globe Ins. Co., 90 N.J.Super. 454, 217 A.2d 916, 920-21 (1966); Criterion Ins. Co. v. Brown, 469 S.W.2d 484, 485 (Tex.Civ.App.1971). However, in upholding consent-to-be-bound provisions, courts have recognized that such provisions have the potential to hinder an insured’s ability to recover damages. 9 Steven Plitt, Daniel Maldonado & Joshua D. Rogers, Couch on Insurance § 124:3, at 124-8 (3d ed.2005). Therefore, the validity of consent-to-be-bound provisions “is often contingent upon an implied promise on the part of the insurer that it will not arbitrarily or unreasonably withhold or refuse its consent.” Id.; see also Levy v. Am. Auto. Ins. Co., 31 Ill.App.2d 157, 175 N.E.2d 607, 611 (1961); Newark Ins. Co. v. Ezell, 520 S.W.2d 318, 321 (Ky.Ct.App.1975).

As one court has recognized, one of the purposes of requiring the insurance company’s written consent to be bound “is to allow the insurance company to protect itself from a default judgment taken against the uninsured/underinsured motorist or an insubstantial defense by the uninsured/underinsured motorist.” In re Koehn, 86 S.W.3d 363, 368 (Tex.App.2002); see also Pietrosh, 454 P.2d at 111 (Enforcement of the consent-to-be-bound provision “may be appropriate in a case where the insured secures a default judgment against the uninsured motorist, since an adversary determination of liability and damages is absent.”)- Another reason includes guarding against collusion between the insured and the underinsured motorist. See Ezell, 520 S.W.2d at 321.

We hold that a consent-to-be-bound provision, like the one in this case, is valid and enforceable provided the insurer does not withhold or refuse its consent without a reasonable basis to do so. There are several reasons for our holding. The provision' does not require a forfeiture of benefits if consent is not obtained, a reason some states have given for holding such provisions valid. See, e.g., Moorcrofb, 720 P.2d at 180. Additionally, we see nothing in our statutory provisions regarding UIM coverage that requires such coverage be unqualified. See generally Iowa Code ch. 516A; see also Moorcroft, 720 P.2d at 180. Moreover, the approach we take eliminates the previously discussed joinder problem that might arise were we to declare the consent-to-be-bound provision void or invalid. See, e.g., Handley, 467 N.W.2d at 250; Keel, 553 P.2d at 158. Finally, our holding is consistent with how we have treated a similar provision — the consent-to-settlement clause — in the context of a UIM case. See Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468 (Iowa 2005). We held in Bellville v. Farm Bureau Mutual Insurance Co. that “the consent-to-settlement clause not only imposes an express duty on the insured to obtain the insurer’s consent to settlement but also imposes an implied reciprocal duty on the insurer to consent unless it has a reasonable basis for refusing to do so.” Id. at 484.

Our holding that a consent-to-be-bound provision is valid and enforceable imposes on the insured and the insurer certain duties. Before the insured can satisfy the legally entitled to recover condition under the UIM coverage, the insured must comply with all of the other conditions of such coverage. For example, here, the UIM policy provision requires the insured to provide the insurer a copy of all suit papers when the insured sues the underinsured motorist. In addition to complying with this condition, the insured must obtain a valid judgment against the underinsured motorist. Implicit in this last requirement is that the suit must be defended. Default judgments, insubstantial defenses, and collusion between the insured and the underinsured motorist will preclude the insured from satisfying the legally entitled to recover condition. In short, the insurer -will not be bound by a judgment obtained through any of these means. Once the insured satisfies the legally entitled to recover condition of the UIM coverage, the insurer has an implied reciprocal duty to refrain from withholding or refusing its consent to be bound by the judgment without a reasonable basis to do so.

These express duties on the part of the insured protect the insurer against default judgment, insubstantial defenses, and collusion between the insured and the under-insured motorist. The insurer’s implied reciprocal duty prevents arbitrary barriers to the recovery of statutorily mandated benefits and promotes the avoidance of multiplicity of lawsuits.

With these principles in mind, we turn to the record in this case regarding the amended judgment entry in suit I. Farm Bureau contended in the district court, as it does here, that the amended judgment entry was obtained without Farm Bureau’s written consent in violation of its eonsent-to-be-bound provision. For that reason, Farm Bureau argues, it is not bound by the amended judgment entry.

It is undisputed that the estate did not obtain Farm Bureau’s written consent to the amended judgment entry in suit I. In addition, the record is uncontroverted, as Farm Bureau argues, that at the time the estate filed its motion to correct judgment entry, suit I was undefended, a fact unknown to Farm Bureau at the time. Thus, there was an insubstantial defense to the motion. See Koehn, 86 S.W.3d at 368. Carter’s attorney filed an uncontroverted affidavit that confirms these facts. He stated:

1. I am an attorney licensed to practice law in the state of Iowa.
2. I represented defendant Margie Carter in [suit I] that went to trial in February 2002.
3. I recently learned that [the estate’s lawyer] made two telephone calls to [the judge who tried suit I] following the trial of [suit I]. I had no knowledge of these telephone calls [before they were made].
4. Following the trial, [the estate’s lawyer] filed a motion to correct judgment entry [in suit I], I filed no resistance to that motion because [the estate’s lawyer] already accepted my client’s offer to settle the case.
5. I never made any analysis, one way or the other, of whether the motion to correct judgment entry should be granted.

The circumstances in which the amended judgment entry was' granted underscore the very reason for the consent-to-be-bound provision. But our inquiry does not end here. With regard to consent-to-settlement provisions, we said in Bellville:

Our court has held that [consent-to-settlement] clauses are permissible under Iowa law as a means to protect the insurer’s subrogation rights against the responsible party. In recognition of this limited purpose, we have held that an insured’s failure to obtain the insurer’s consent to settlement will preclude payment of UIM benefits only if the insurer “proves that, absent such a breach, it could have collected from the tort-fea-sor.” Furthermore, the insured’s entitlement to UIM benefits will be reduced only by the amount of the subrogation recovery lost by the insurance company. We have placed the burden of proving prejudice on the insurer: “The insurer must establish not only that the claim has been released but also that it was collectible and establish within a reasonable approximation the dollar amount that might be collected.”

Bellville, 702 N.W.2d at 483 (citations omitted).

Similarly here, as we now hold, consent-to-be-bound provisions are permissible to protect the insurer’s interests, albeit those interests are different from sub-rogation rights. We are convinced the insurer, as with consent-to-settlement provisions, should bear the burden of proving prejudice when an insured has not secured the insurer’s consent to be bound. Farm Bureau has the burden to prove that the amended judgment entry has prejudiced its rights; otherwise it is bound by it. For reasons that follow, we think Farm Bureau has met its burden.

If the district court was correct in amending the judgment, Farm Bureau has suffered no prejudice; otherwise it has. The estate relies heavily on our decision in Sullivan v. Wickwire, 476 N.W.2d 69 (Iowa 1991) to support the district court’s action in entering the amended judgment.

In Sullivan, all defendants except one settled before trial. Sullivan v. Wickwire, 476 N.W.2d 69, 70 (Iowa 1991). During the trial, the district court submitted a jury instruction without objection that failed to advise the jury that if they assigned fault to a settling defendant, that fault would reduce the damages awarded to the plaintiff. Id. at 72. The jury returned a verdict assessing the plaintiffs damages and assigned a percentage of fault to the plaintiff and to all of the defendants except one. Id. Despite the incorrect instruction, the district court reduced the verdict by the settling defendant’s fault, thereby reducing the plaintiffs recovery. Id. The non-settling defendant argued on appeal that the district court was correct in reducing the verdict while the plaintiff argued that the district court was powerless to correct the judgment. Id. On this issue, we said:

There is considerable merit in plaintiffs claim .... In Iowa and elsewhere, an instruction submitted to the jury without objection becomes the law of the case and will not be disturbed on appeal. The [defendant] attempts to discredit the rule in the present case by arguing the jurors’ sole task was to find damages and allocate percentages of fault, leaving to the court the job of applying mathematical formulas to achieve the correct judgment. We do not believe, however, that the jury’s understanding of the impact of its verdict is irrelevant to its decision-making responsibilities. In keeping with Iowa Code section 668.3(5), our prior decisions make clear that the court must instruct the jury with respect to the effect of answers given to special interrogatories, and the court’s failure to do so may constitute reversible error.

Id. at 72-73 (citations omitted).

Although the facts in Sullivan are similar to the facts here, we need not follow the reasoning expressed in the foregoing discussion because it was dicta. This was made apparent in the passage following that discussion: “We need not decide in the present case whether the court’s error merits a new trial or merely an amended judgment, because other errors committed by the court demand a new trial.” Id. at 73. For reasons that follow, we decide not to follow this dicta.

In Reese v. Werts Corp., this court recognized that section 668.3(5) “requires the [district] court to instruct the jury not only on the effect of the claimant’s contributory fault but also on the effect of the fault of other parties.” 379 N.W.2d 1, 3 (Iowa 1985). In that case, the district court instructed the jury that the percentage of negligence it attributed to the plaintiff (the case was tried in part under comparative negligence) would be used by the court to reduce the amount of damages the jury found the plaintiff had sustained. Id. What the court did not tell the jury in that instruction was that a defendant who bears less than fifty percent of the total fault was not jointly and severally liable, as the court was required to do under Iowa Code section 668.3(5). Id. at 3-4. The plaintiff objected to the instruction because the instruction did not take into account the joint and several liability rule. Id. at 3. The district court overruled the objection. Id. The jury found that the plaintiff sustained $100,000 in damages. Id. at 2. The jury attributed five percent of the negligence to the plaintiff, and attributed fifteen percent to the defendant. Id. Following the verdict, the plaintiff moved for a judgment against the defendant in the amount of $95,000. Id. Instead the court entered judgment in favor of the plaintiff in the amount of $15,000. Id. Under the instruction, if it were true, the plaintiffs recovery would have been $95,000 instead of $15,000. Id. at 3. This court held that because the district court undertook to instruct the jury on the effect of its determinations it was required to instruct accurately. Id. We reversed and remanded for a new trial, concluding that the district court had given the jury misleading advice and had failed to instruct the jury on the effect of its answers to the interrogatories as required by section 668.3(5). Id. at 4. Obviously, this court reversed because the verdict was tainted by that error resulting . in prejudice to the plaintiff.

In Schwennen v. Abell, we also noted that section 668.3(5) requires that the jury be made aware of the effect of its fault apportionment on the claimant’s right to recovery. 430 N.W.2d 98, 104 (Iowa 1988). In that case we said: “In Reese, we found it to be reversible error for the court to fail to instruct on this matter or to give misleading instructions with respect thereto.” Id. (citation omitted). We then pointed out in Schwennen that the instructions given in the case before it were based on the incorrect premise that one of the defendants could be allocated some fault. Id. We rejected the plaintiffs suggestion that such fault should be disregarded and the jury’s allocation of fault should be reassigned to the remaining defendants by a process of interpolation. Id. We noted that the plaintiffs suggestion would “have a substantially different effect on the [remaining defendants] than the jury would have perceived them to have under the trial court’s instructions.” Id. Such a result, we held, required that the apportionment of fault among the remaining defendants had to be tried anew. Id. Because the verdict was tainted by the district court’s error resulting in prejudice to the remaining defendants, we reversed. Id.

Implicit in both Reese and Schwennen was the fact that the erroneous and misleading instructions tainted the jury verdicts resulting in prejudice to the parties challenging the verdicts. See Grefe & Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994) (“If instructions are erroneous, they must be prejudicial before we will order reversal.”). Here, the estate did not assail the jury’s verdict on the grounds of an erroneous and misleading instruction that prejudiced the consortium claimants. Rather, the estate accepted the verdict as the correct measure of damages. Instead of challenging the verdict, the estate is seeking to uphold it on the grounds that the incorrect instruction became the law of the case. Because the consortium claimants were not prejudiced by the instruction and resulting verdict, the estate had no grounds to prevent the district court from reducing the verdict as it did. By reducing the loss of consortium claim by the percentage of fault which the jury attributed to the decedent, the district court did exactly what it was required to do under the law. See Iowa Code § 668.3(1)(6) (any damages for consortium will be reduced by the percentage of fault attributed to the person who provides the basis for the consortium damages); id. § 668.3(4) (the court shall determine the amount of damages payable to each party in accordance with the findings of the court or jury). It follows therefore that Farm Bureau is prejudiced by the amended judgment entry, which restored the jury’s verdict on the loss of consortium claims. For that reason Farm Bureau is not bound by the amended judgment entry. Cf. Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000) (recognizing that district court has the power to correct its own perceived errors); see also Iowa Code §§ 668.3(1)(6), 668.3(4).

V. Is Farm Bureau Bound by the Original Judgment Entry in Suit I?

In its resistance to the estate’s motion for summary judgment on the contract claim, Farm Bureau did not raise any policy defenses (for example, failure to provide suit papers or violation of the consent-to-be-bound provision) to the original judgment entry in suit I. Nor does Farm Bureau raise any such defenses here. That is not surprising for three reasons. First, the estate notified Farm Bureau that it was making a UIM claim under the decedent’s policy because in the estate’s lawsuit against Carter, the estate learned that Carter had liability coverage of only $100,000, a sum the estate believed was insufficient to cover its damages. Second, the lawsuit against Carter was being defended. Last, the district court reduced the verdict by reducing the consortium award by the percentage of fault attributed to the decedent.

Moreover, the estate proved Carter’s negligence and its damages. And, as mentioned, Carter was defended up to and including the entry of the original judgment. Therefore at this point the estate had a valid judgment, and Farm Bureau had no reasonable basis to withhold or refuse its consent. The fact that Carter’s attorney did not object to the consortium instruction did not render the defense insubstantial. In our view an insubstantial defense equates with no defense at all or one that is imaginary or illusory. That was far from true in this case. Were we to hold otherwise, an insured would rarely be able to obtain a judgment meeting the legally entitled to recover condition of UIM coverage. This is because, as a practical' matter, a lawsuit is hardly ever perfectly defended.

For all of these reasons, we conclude the estate satisfied the legally entitled to recover condition of the UIM coverage provision of the decedent’s policy. Contrary to the district court ruling, Farm Bureau was bound by the original judgment entry in suit I.

VI. The Bad Faith Claim.

As mentioned, in suit II, the district court granted Farm Bureau’s motion for summary judgment on the estate’s bad faith claim. On appeal, the estate contends the court erred in dismissing the claim. The claim is twofold. The estate contends Farm Bureau’s conduct in delaying payment of the decedent’s medical expenses under the medical pay provision of her policy constituted bad faith. Additionally, the estate contends Farm Bureau’s conduct in denying the estate’s demand to pay. the amount of the amended judgment entry in excess of Carter’s policy limits constituted bad faith.

Farm Bureau correctly points out that the bad faith issue regarding the medical pay expense was not properly preserved for our review. The estate concedes that the district court’s ruling granting Farm Bureau’s motion for summary judgment on the bad faith claim was silent on this issue. Because the estate failed to file a motion requesting a ruling on this unresolved issue, the issue was not preserved for our review. See Meier v. Sene-caut, 641 N.W.2d 532, 537-39 (Iowa 2002).

That leaves for our review that portion of the district court summary judgment ruling regarding Farm Bureau’s conduct in denying the estate’s demand to pay the amount of the amended judgment entry in excess of Carter’s policy limits. To establish Farm Bureau’s bad faith claim, the estate was required to prove (1) Farm Bureau had no reasonable basis for denying the estate’s demand to pay the amount of the amended judgment entry in excess of Carter’s policy limits and (2) Farm Bureau knew or had reason to know that its denial lacked a reasonable basis. See Bellville, 702 N.W.2d at 473.

In Bellville, we summarized the principles we apply in determining whether there is a Jack of a reasonable basis necessary for the first element of a bad faith claim:

A reasonable basis exists for denial of policy benefits if the insured’s claim is fairly debatable either on a matter of fact or law. A claim is “fairly debatable” when it is open to dispute on any logical basis. Stated another way, if reasonable minds can differ on the eov-erage-determining facts or law, then the claim is fairly debatable.
The fact that the insurer’s position is ultimately found to lack merit is not sufficient by itself to establish the first element of a bad faith claim. The focus is on the existence of a debatable issue, not on which party was correct.
Whether a claim is fairly debatable can generally be decided as a matter of law by the court. That is because “ ‘[w]here an objectively reasonable basis for denial of a claim actually exists, the insurer cannot be held liable for bad faith as a matter of law.’ ”

Id. at 473-74 (alteration in original) (citations omitted).

There are several reasons why Farm Bureau had a reasonable basis to assert it had no duty to pay the estate’s demand. Whether Farm Bureau had a good faith duty to consent to be bound by the amended judgment entry had not been decided by an Iowa appellate court. We agree with Farm Bureau that with no Iowa law on the issue, its duty to consent to be bound by the amended judgment entry was fairly debatable. Cf. id. at 484-85 (holding similarly regarding consent-to-settlement clause). Moreover, as we already concluded, Farm Bureau was not bound by the amended judgment entry, a fact the estate concedes was necessary to establish the estate’s bad faith claim. We therefore conclude as a matter of law that Farm Bureau was not in bad faith for denying the estate’s demand to pay the amount of the amended judgment entry in excess of Carter’s policy limits.

VII. Disposition.

In sum, we reach the following conclusions. Farm Bureau is not bound by the amended judgment entry in suit I. We therefore affirm the district court ruling denying the estate’s motion for summary judgment on this issue but for reasons other than those cited by the district court. As a matter of law, Farm Bureau had a reasonable basis to deny the estate’s demand to pay the amended judgment entry in suit I in excess of Carter’s policy limits. We therefore affirm the district court ruling granting Farm Bureau’s motion for summary judgment on the estate’s bad faith claim.

Contrary to the district court ruling, the consent-to-be-bound provision is valid and enforceable. We therefore reverse the district court’s grant of the estate’s motion for summary judgment on this issue. However, Farm Bureau is bound by the original judgment entry in suit I. We therefore reverse that part of the district court ruling which allowed Farm Bureau to relitigate damages in the underlying tort suit.

We remand for further proceedings consistent with this opinion. We have carefully considered all of the issues raised by the parties. Those we have not addressed we find lack merit or were not properly preserved.

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

All justices concur except WIGGINS, J., who concurs in result only.