author: NEUMAN, Justice.

text:
    John A. HAMILTON, Ann Davenport, Greg Hamilton, Marcia Schunemann, and Jane Hamilton, Appellants, Virginia Haberstick, Plaintiff, v. MERCANTILE BANK OF CEDAR RAPIDS and Mercantile Investment and Trust Services, Appellees. John A. Hamilton, Ann Davenport, Greg Hamilton, Marcia Schunemann, and Jane Hamilton, Plaintiffs, Virginia Haberstick, Appellee, State of Iowa ex rel. Civil Reparations Trust Fund, Appellee, v. Mercantile Bank of Cedar Rapids and Mercantile Investment and Trust Services, Appellants.
    Nos. 99-0476, 99-0740.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Roger T. Stetson and Margaret C. Callahan of Belin Lamson McCormick Zum-bach Flynn, A Professional Corporation, Des Moines, and Gregory J. Epping and John D. Hedgecoth of Terpstra & Epping, Cedar Rapids, for Mercantile Bank, appellant in 99-0740 and appellee in 99-0476.
    David J. Dutton and James F. Kalkhoff of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, for Virginia Haberstick, appellee in 99-0740, and John A. Hamilton et al., appellants in 99-0476.
    Thomas J. Miller, Attorney General, Craig Kelinson, Special Assistant Attorney General, and Richard E. Mull, Assistant Attorney General, for appellee State.
   NEUMAN, Justice.

These appeals involve a trust department’s blatant breach of its fiduciary duties to the beneficiary of a trust established under the will of Julie McDaniel Hamilton. The trustee, Mercantile Bank, concedes mismanagement but disputes the amount of damages awarded by the jury, both compensatory and punitive. Contingent remaindermen, dismissed from the suit on summary judgment before trial, contest the court’s ruling that they have no standing to bring an action for waste. Finding no error warranting reversal in either case, we affirm on both appeals.

I. Background.

A. Facts. A jury could have found the following facts: A codicil to the will of Julie McDaniel Hamilton established a trust naming her sister, Virginia Haber-stick, as the lifetime beneficiary. The only asset placed in trust was a real estate contract executed between Hamilton and Taiman Hanson in 1982 for the sale of three multi-family dwellings in Cedar Rapids, Iowa. The three parcels of real estate, commonly known as 1574-76 Second Avenue S.E., 1578-80 Second Avenue S.E., and 115-117 16th Street S.E., contained seventeen apartment units and were sold for roughly $190,000. Hamilton’s will directed the then-trustee, City National Bank of Cedar Rapids, to pay Haberstick, during her lifetime, “monthly, all of the net income of this trust, or $1,000.00, whichever is greater.... ” Upon Haberstick’s death, the will directed the trustee to terminate the trust and distribute the balance of principal and accumulated income, including any balance owed on the contract, equally among Hamilton’s eight children.

John Hamilton, a son and one of the remaindermen, testified that he had maintained the apartments for his mother during her lifetime and, at the time the trust was established, the properties were in “good shape.” Hamilton died in 1985. Haberstick testified that she began receiving monthly checks from the trustee “almost immediately.”

Sometime prior to 1989, Hanson — the original contract vendee — assigned his interest in the contract to Larry Johnson and Henry Knopf. In 1989, Johnson and Knopf assigned their interest to Patrick O’Welle for $118,000. O’Welle’s interest in the property was eventually forfeited by City National Bank for nonpayment. Thereafter the trustee executed an installment contract with Thomas Trosky to purchase all three rental properties for $110,000. Trosky’s contract with the bank called for monthly payments of $1115.45, and obligated him to make timely payments of taxes and insurance. He was required to keep the property in good repair.

The record reveals that when the properties were sold on contract to Trosky in 1991, no one from City National Bank inspected them or inquired into Trosky’s experience in real estate or his ability to fulfill the terms of the contract. Nor was there an inspection or appraisal of the properties when Hawkeye State Bank acquired the trust through a buy-out of City National's assets in March 1993. Mercantile Bank, which acquired Hawkeye State Bank in 1994, likewise made no effort to ascertain the condition of this trust asset or Trosky’s financial status, despite the fact that due diligence in the corporate acquisition called for a comprehensive investigation of the actions of the predecessor trustee.

As it turns out, the properties on Second Avenue and 16th Street S.E. were deteriorating when Trosky purchased them and declined markedly during Trosky’s tenure as the contract purchaser. City housing inspectors began issuing notices of intent to “placard” the dwellings for housing violations as early as 1990. The garage unit of 1574-76 Second Avenue was deemed unfit for human habitation in July 1991; the entire house was cited for violations in April 1993. , The 16th Street location was cited for violations in August 1994, and again during a reinspection in March 1995. In May 1995, the property was placarded as uninhabitable due to problems ranging from missing windows to leaking ceilings, exposed wiring and peeling paint. A trust officer for Hawkeye State Bank, Rick Seger, evidently inquired about the notices it received in June 1993, but took no action to address them.

Trosky, meanwhile, also failed to keep the properties insured. A second notice of the lapse in commercial fire coverage was sent to Hawkeye State Bank in December 1993. No action was taken by the trustee to forfeit the contract or pay the premiums. Fire destroyed the units at 1578-80 Second Avenue in May 1994. Only then did the trustee’s attorney (who formerly represented the trustor, Hamilton) learn that the property was not insured. No one from the bank contacted Haberstick to inform her that one of the apartment buildings had burned to the ground. In addition to the total property loss, the city assessed demolition costs of $15,921 jointly against Trosky and the bank.

Not surprisingly, Trosky made the contract payments only sporadically and failed to pay real estate taxes from 1989 through 1993. More surprisingly, the trustee did nothing about it. Tax certificates for the years 1990 through 1992 were sold at tax sale in September 1994. Despite being served with notices of these tax sales and expiration of the right to redeem, the trustee took no action to redeem the properties, or insist that Trosky do so. He was evidently able to redeem two of the properties. But a tax deed was issued to an entity named Linntaxcert for the property at 1574-76 Second Avenue. No one from the bank notified Haberstick that the property had been sold for unpaid taxes.

By 1995, with Mercantile Bank serving as successor trustee, all that remained as security for the real estate contract that formed the Hamilton trust was the house at 115-117 16th Street S.E. and the lot where the house known as 1578-80 Second Avenue S.E. once stood. Trosky was thirteen months behind in his contract payments. Yet annual reports to the court, filed by the trustee through its attorney from 1990 to 1995, indicated no change in trust assets. During this same time period, trustee’s fees increased from $300 charged by City National Bank to $1700 charged by Hawkeye Bank.

Mercantile forfeited the trust’s contract with Trosky in November 1995 and advised Haberstick that the trust’s assets were depleted. It also issued Haberstick her final monthly payment of $1000. The bank sold the remaining house and lot for $35,000. After paying off outstanding liens and expenses, the bank issued a lump sum payment to Haberstick of $5000 in March 1996.

B. Legal proceedings. Haberstick, along with the five remaining Hamilton heirs, sued Mercantile Bank — as successor trustee to Hawkeye State Bank — for negligence, breach of fiduciary duty and waste in the administration of the Julie McDaniel Hamilton Trust. The plaintiffs sought both compensatory and punitive damages. The bank moved for summary judgment with respect to claims made by the children. It urged that the children — as contingent remaindermen — had no standing to sue the trustee for damages. The court sustained the motion and the case proceeded to jury trial on Haberstick’s claims.

At trial, plaintiff tendered expert testimony concerning the valuation of the properties in question and the duties of a corporate fiduciary to protect and preserve trust assets. Following the close of all the evidence, the court granted Mercantile’s motion for directed verdict on the negligence and waste claims, concluding any damages recovered on those theories would duplicate those recoverable for breach of fiduciary duty. Thereafter the jury returned a verdict awarding Haber-stick $276,000 in compensatory damages and $750,000 in punitive damages.

The court overruled the bank’s post-trial motions for new trial, judgment notwithstanding the verdict, and remittitur. It also entered an order apportioning the punitive damages award twenty-five percent to Haberstick, thirty-three percent to plaintiffs counsel for fees, and the remainder to the Iowa Civil Reparations Trust Fund. See Iowa Code § 668A.l(2)(b) (1999). These appeals by Mercantile Bank and the contingent remaindermen followed.

Further facts will be detailed as they pertain to the issues on appeal. Our appellate review of this action, tried at law, is on assigned errors only. Claus v. Whyle, 526 N.W.2d 519, 523 (Iowa 1994).

II. Issues on Appeal.

A. Compensatory damages. Mercantile concedes at the outset that it breached its fiduciary duty to Haberstick. But it contends the record supports no more than $112,000 in actual damages. Its argument rests on the premise that Ha-berstick’s loss must be limited, as a matter of law, to the amount she would have received from the trust after March 1996 had Trosky fulfilled his obligations under the real estate contract. The district court rejected this argument in its ruling on the bank’s motion for judgment notwithstanding the verdict and, we think, rightly so.

We consider the bank’s argument in light of the general and well-settled rule that a trustee has the duty to protect trust property against loss or destruction, taking such action as a reasonably prudent person would take to protect his or her own property. George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 582, at 346 (rev.2d ed.1995) [hereinafter Bogert on Trusts]. The rule is embodied in Iowa’s probate code, which imposes liability on every fiduciary who, by negligent or willful act, causes loss in the administration of an estate. Iowa Code § 633.160. Although a successor trustee is not automatically liable for a breach of trust committed by a predecessor trustee, liability will be imposed where the successor knows or should know of the breach and nevertheless permits its continuation. Restatement (Second) of Trusts § 223, at 518-19 (1957). The measure of damages for such breach of trust is the difference between the value of the beneficiary’s rights to principal and income before and after the breach. See generally Bogert on Trusts § 862, at 48.

Here, the trust under Hamilton’s will imposed upon the trustee — and its successors — an obligation to pay Haberstick, monthly, all of the income from the trust or $1000, whichever sum was greater. To support its argument for limited damages, Mercantile relies heavily on the fact that its predecessor’s contract with Trosky, negotiated in 1991, called for payments of only $1115 per month. But Orville Bloethe, a probate expert called .by the plaintiff, testified that a trustee’s duty with respect to a real estate contract extends beyond merely collecting monthly payments. He opined that the trustee had a duty to preserve and maintain, if necessary, the underlying security so that the income stream would continue. Bloethe’s observation is important because the record also reveals that the property’s income potential exceeded $4000 per month during the extended time that Trosky was in default. An experienced real estate investment advisor, Darwin Garman, testified that rental properties of this kind were in substantial demand during this timeframe. He appraised the properties using 1994 market values, ranging them in total value from a high of $204,000 to a low of $134,000.

Given this record, the jury could accept the bank’s argument that if Trosky had fulfilled his part of the bargain the contract would never have generated more than $1000 per month. But the jury was not required, as a matter of law, to accept that premise. It could have concluded, based on the expert testimony, that the trustee’s failure to commence forfeiture on Troskys default meant that it lost the opportunity to recover the properties at a time when they might have generated substantially more income for the trust beneficiary. We thus reject, as did the district court, the bank’s contention that the contract limited the recoverable damages for breach as a matter of law.

That brings us to the amount of damages awarded, a matter peculiarly within the province of the jury. Kautman v. Mar-Mac Cmty. Sch. Dist., 255 N.W.2d 146, 147 (Iowa 1977). Haberstick argued at trial for damages totaling $320,000. She based this claim on Garman’s testimony that the fair market value of the properties, if maintained in average condition, should have generated a minimum return of twelve percent, or roughly $24,000 per year. This is what she should have earned, she argued, for her lifetime from and after Trashy's breach in 1991, less the $1000 per month she received until November 1995. The bank, admitting that Haberstick lost thirty-four months of payments from November 1995 through trial in February 1999, and admitting she was entitled to an additional $1000 per month for the remainder of her life expectancy of 6.5 years, urged the jury to return a verdict of only $112,000. The jury returned an award of $276,000. This sum is plainly within the range of evidence presented at trial, and the district court committed no legal error in refusing to set it aside. Id.

B. Punitive damages. Mercantile next challenges the district court’s denial of its motions for new trial and judgment notwithstanding the verdict on the issue of punitive damages. Mercantile argued at trial, and now urges on appeal, that the record contains insufficient evi-dentiary support for an award of punitive damages. It claims, in the alternative, that the award was excessive on its face or resulted from the admission of evidence that should have been excluded. The district court rejected these contentions, and so do we.

The question is whether “by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another.” Iowa Code § 668A.l(l)(a) (emphasis added). As Mercantile rightly notes, merely negligent conduct will not, without more, support an award of punitive damages. Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 256 (Iowa 1993). To sustain a punitive damages award here, Haberstick was required to prove that the bank engaged in a persistent course of conduct demonstrating that it acted with “no care” and without regard to the consequences of its inaction. Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 156 (Iowa 1993). The purpose of imposing punitive damages in such a case is to punish the willful and wanton conduct and deter the defendant, and others, from repeating such conduct in the future. Ezzone v. Riccardi, 525 N.W.2d 388, 398 (Iowa 1994); accord McClure v. Walgreen Co., 613 N.W.2d 225, 230 (Iowa 2000).

In Ezzone, this court held that any award of punitive damages must be tested by examining (1) the extent and nature of the outrageous conduct, (2) the amount necessary to deter such conduct in the future, (3) the relative size of the punitive damages award as compared to actual damages and, (4) surrounding circumstances bearing on the relationship of the parties. Ezzone, 525 N.W.2d at 399. Applying those factors here, we are satisfied the record supports submission of the issue and the jury’s verdict. The relationship between the parties was fiduciary in nature, implicating the highest levels of trust and reliance. The breaches of trust were not isolated but repeated, extending over a period of years. They touched every aspect of the trustee’s most basic duty to protect and preserve the trust property — to collect revenue, to pay taxes, to insure against loss, and to preserve value through routine maintenance and repair. See generally George T. Bogert, Trusts § 99, at 358-59 (6th ed.1987). Absolutely no effort was made by Mercantile to ascertain the condition of these properties or the status of the Trosky contract when it assumed its role as successor trustee to Hawkeye Bank, just as Hawk-eye had abrogated its duty to do so when it took over the trust from City National.

The complete and utter failure of the bank to offer an explanation for its inaction bespeaks an ulterior motive. One can only assume from this record that more remunerative trusts occupied the trust officers’ time. The willfulness of the bank’s conduct is plainly demonstrated by its failure to advise the trust beneficiary or the court of material changes in the trust property, concealment that occurred while annual fees for trust services increased six-fold.

Moreover we agree with the district court that the size of the punitive damages award is not out of proportion to the actual damages sustained. Evidence in the record revealed that Mercantile is part of a twenty-one-bank holding company. Mercantile, standing alone, claims assets in excess of $48 million. Clearly a substantial “sting” would be required to deter this financial institution from profiting in the future by ignoring — and thereby impairing — the rights of trust beneficiaries such as Virginia Haberstiek.

Finally, we reject Mercantile’s claim that an alleged evidentiary error by the court contributed to the size of the award, compelling a new trial. The controversy arose when testimony adduced by the plaintiff suggested that the bank, un-caringly, denied mismanagement of the trust and, when confronted, challenged Haberstiek to get a lawyer. Mercantile sought to dispel this inference by attempting to introduce two letters of settlement, authored by a bank trust officer, which suggested that any recommendation regarding lawyers rested on the bank’s concern that Haberstiek and the remainder-men might have differing legal interests, requiring separate counsel.

The bank correctly asserts that offers of settlement, excludable under Iowa Rule of Evidence 408, may be admitted if offered for another purpose. Hyler v. Garner, 548 N.W.2d 864, 869 (Iowa 1996). It has, however, failed to show the court abused its discretion in refusing the tendered evidence here. See Gail v. Clark, 410 N.W.2d 662, 671 (Iowa 1987) (decision whether to admit proof of settlement offer on alternate ground “committed to the discretion of the trial court”). The court reasonably concluded that the purpose for admitting the letters — to rebut a misimpression — could be accomplished more easily and accurately by permitting additional testimony by the trust officer. The remedy the bank proposed would require nearly three-fourths of the letters’ text to be redacted. It was not entitled to that alternative as a matter of law. See id. at 672. No ground for reversal appears.

III. Summary Judgment.

The contingent remaindermen have mounted a separate appeal to challenge the district court’s summary dismissal of their action for waste. Mercantile assails the appeal as untimely as well as unmeri-torious. Thus before turning to the merits of the remaindermen’s claim, we briefly address the appeal’s procedural posture.

A. Timeliness. As explained earlier in this opinion, Julie McDaniel Hamilton’s children — as contingent remaindermen under her testamentary trust — joined Haber-stick as plaintiffs in suing Mercantile for negligence, breach of fiduciary duty, and waste. Prior to trial, Mercantile moved to summarily dismiss the remaindermen from the suit on the ground they had no standing, as a matter of law, to proceed. The district court granted Mercantile’s motion and the case proceeded with Haberstiek as the only plaintiff.

Four months later, just prior to trial, the contingent remaindermen asked the court to reconsider its summary judgment ruling. The court declined. Thereafter the case proceeded to trial, with the jury returning a verdict in Haberstick’s favor on her breach of fiduciary duty claim. The contingent remaindermen then filed their notice of appeal.

Mercantile now claims the remain-dermen’s notice of appeal was too early because, when it was filed, the court had not yet ruled on the bank’s post-trial motions. Relying on Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978), it claims this court has no jurisdiction to proceed and must dismiss the appeal as premature. In the alternative, Mercantile claims the appeal comes too late. It reasons the case was final as to the remaindermen months earlier when the court issued its summary judgment ruling.

Although neither party cites authority precisely on point to resolve this quandary, we think the spirit of Iowa Rule of Appellate Procedure 5(b) permits the appeal to go forward. The rule states:

Notwithstanding these rules, an order disposing of an action as to fewer than all of the parties to the suit, even if their interests are severable, or finally disposing of fewer than all the issues in the suit, even if the issues are severable, may be appealed within the time for an appeal from the order, judgment, or decree finally disposing of the action as to remaining parties or issues.

Iowa R.App.P. 5(b). We recognize that, even under this rule, the judgment was not final as to Haberstick and Mercantile until the court issued its post-trial rulings. But, unlike the situation presented in Recker, none of Mercantile’s post-trial motions had any bearing on the contingent remainder-men’s substantive claim. Under these circumstances, we are not inclined to penalize the remaindermen for arguably “jumping the gun.” It appears their appeal would have been interlocutory, and hence unap-pealable, pending the conclusion of trial as to the remaining parties. See Stockburger v. Robinson, 270 N.W.2d 453, 454 (Iowa 1978) (resolution of claims which are “dependent upon or intertwined with” claims asserted by other plaintiffs or defendants are not final, for purposes of appeal, until final resolution of the case) (quoting Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 303 (Iowa 1975)). Rather than dismiss, we elect to proceed to the merits of them claim. See Iowa R.App.P. 1(d) (improvident appeal taken from interlocutory order not alone ground for dismissal).

B. Standing. The controversy over the remaindermen’s standing to bring an action at law for waste turns on the district court’s reliance on Carstens v. Central National Bank & Trust Co., 461 N.W.2d 331 (Iowa 1990). In Carstens this court held that “a contingent remainder-man cannot maintain an action at law against the trustee because the trustee has no present obligation to pay or turn over assets.” Carstens, 461 N.W.2d at 334. The remaindermen claim Carstens’ holding cannot be reconciled with a more recent court of appeals case, Bennett v. Johnson, 485 N.W.2d 481 (Iowa App.1992). In Bennett, the court held a remainderman must bring an action for waste within the five-year limitation period for damage to property. Bennett, 485 N.W.2d at 483. So while the remaindermen argue the district court’s decision creates for them a statute of limitations problem, the bank maintains the remaindermen have no cause of action in the first place.

Mercantile has the better argument. A claim for waste is an action at law brought by a remainderman against a tenant in lawful possession of land — usually a life tenant or tenant for a term of years — who is allegedly using the land in such a way as to diminish its value. See 78 Am.Jur.2d Waste § 10, at 401-02 (1975); see also Black’s Law Dictionary 1098 (abr. 6th ed.1991) (defining waste as “action or inaction by a possessor of land causing unreasonable injury to the holders of other estates in the same land”). In Iowa, statutory relief from waste is codified at Iowa Code section 658.1. The section provides:

If a guardian, tenant for life or years, joint tenant, or tenant in common of real property commit waste thereon, that person is liable to pay three times the damages which have resulted from such waste, to the person who is entitled to sue therefore.

Iowa Code § 658.1. As this statute and the common law definitions illustrate, waste is a concept related to real estate.

Here, there is no life tenant against whom a statutory action for waste may attach. Although the remaindermen insist a trustee whose duty it is to preserve and protect trust assets is equivalent to a life tenant, they cite no authority for this proposition. Indeed it appears the authority is to the contrary. No trust is created when property is transferred to an individual for life with remainder to another because the life tenant takes title outright, the only restriction being the duration of the estate. Restatement (Second) of Trusts § 16C, at 54. In a trust, by comparison, legal and equitable ownership of the land are severed. The trustee’s action is restricted by an overarching fiduciary duty. See 76 Am.Jur.2d Trusts § 1, at 28 (1992). But for actions to redress an immediate and unconditional entitlement to money or chattels, a beneficiary’s remedies against a trustee are exclusively equitable. Carstens, 461 N.W.2d at 333-34 (citing Restatement (Second) of Trusts § 199, at 437 (1959)).

The plaintiffs in Bennett owned a remainder interest in a tract of farmland held outright by the life tenant, with no trust involved. Bennett, 485 N.W.2d at 482. Those facts, as well as the applicable law pertinent to estates in remainder or reversion, are plainly distinguishable from the case before us. See Iowa Code § 658.5 (authorizing owner of estate in remainder or reversion to bring action for waste notwithstanding intervening estate for life or years). The district court correctly applied Carstens’ controlling authority here. Summary judgment for Mercantile on the remaindermen’s claim must, accordingly, be affirmed.

AFFIRMED ON BOTH APPEALS.

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


source: Caselaw Access Project

author: SNELL, Justice.

license: Public Domain

text:
    IBP, INC., Appellee, v. Linda HARPOLE, Appellant. Perry Manor and Allied Mutual Insurance Company, Plaintiffs, v. Iowa District Court for Polk County, Defendant.
    No. 99-0578.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Michael L. Mock and D. Brian Scieszin-ski of Bradshaw, Fowler, Proctor & Fair-grave, P.C., Des Moines, for plaintiffs.
   SNELL, Justice.

An injured employee, Linda Harpole sought disability benefits for injuries she suffered while employed by both IBP, Inc. and Perry Manor. Her individual claims against each business were consolidated for one agency hearing. Harpole appeals the district court’s decision on. judicial review which overturned her 40% permanent partial disability award against IBP. By writ, Perry Manor seeks a ruling that an individual judgment received in a consolidated case, appealed by no party, does not continue to be litigated by virtue of another consolidated party’s appeal of its judgment. We reverse the judgment of the district court and remand for entry of judgment affirming the agency’s ruling. We also sustain the writ.

I. Factual Background and Proceedings

Harpole was employed at IBP when her first knee injury occurred in October 1991. From this fall, she required knee surgery and thereafter, a knee brace. In May 1993, Harpole received a settlement of 20% permanent partial disability from IBP for her injury. Harpole exacerbated her injury on two more occasions while employed at IBP. One was on an icy sidewalk not connected with work in February 1993, and the other occurred in the IBP cafeteria in May 1993. Also, in April 1994, Harpole left work at IBP as a result of severe pain in her left knee. Harpole filed claims against IBP for the subsequent work-related fall and her pain-related work leave.

Harpole eventually left the employ of IBP and began work at Perry Manor. In 1996, she again injured her left knee while at work. She filed a disability claim against Perry Manor for this injury. Har-pole also petitioned to re-open the settlement she had made with IBP for her first knee injury in 1991. Harpole claimed she now had additional injuries to both knees, her lower back, and hips tracing back to her initial 1991 fall. A description of her injuries is provided below.

1) October 11, 1991 — The first injury to Harpole’s left knee occurred at IBP. Harpole was unable to return to her regular duties until February 5, 1993. She obtained a settlement award from IBP for this injury in May 1993.
2) December 1991 — Harpole underwent arthroscopic surgery by Dr. David Wirtz on her left knee.
3) April 1992 — Harpole received patel-lar realignment and Dr. Wirtz removed a screw from her left knee.
4) December 1992 — Dr. Wirtz removed Harpole’s left patella. Dr. Wirtz also prescribed that Harpole wear a leg immobilizer on her left leg at home and at work. The immobilizer did not allow her to bend her left leg.
5) February 15, 1993 — Harpole slipped and fell outside a private business, re-injuring her left knee. She was wearing her immobilizer on her left knee at this time. She was unable to return to work until April 13, 1993.
6) February 1993 — Because Dr. Wirtz was out of town, Dr. Sinesio Misol performed left knee surgery on Har-pole to repair a torn tendon due to her slip and fall.
7) May 20, 1993 — Harpole slipped and fell in the IBP cafeteria. X-rays did not show any new injury. However, Harpole did suffer increased pain. She was unable to return to work until August 20,1993.
8) April 31, 1994 — Harpole left work because of extreme knee pain. No new injury occurred at this time. She was off work until June 15, 1994.
9) August 1994 — Harpole began working at Perry Manor.
10) September 1,1994 — Harpole injured her left knee again while working at Perry Manor. She returned to work on September 6, 1994, only to leave on September 11, 1994 with severe swelling. She has never returned to work after that day.
11) September 1994 — Harpole again underwent knee surgery, this time by orthopedic surgeon, Dr. David Tearse to repair scar tissue in her left knee.
12) December 1995 — Harpole developed right knee pain.
13) June 1996 — Harpole developed lower back and hip pain and was treated by her family physician, Dr. John Beattie, and neurosurgeon, Dr. Douglas Koontz.

In summary, by 1996, Harpole had four individual claims pending before the industrial board: two disability claims against IBP for her 1993 cafeteria fall and 1994 pain-related work leave; one disability claim against Perry Manor for her 1994 knee injury; and one petition to re-open the settlement she made with IBP for her 1991 injury. These claims were consolidated for hearing before the deputy industrial commissioner.

A. The Initial Ruling by the Deputy Industrial Commissioner

The deputy commissioner ordered IBP to pay permanent total disability to Har-pole for her 1991 injury, instead of the previously agreed upon partial disability. IBP was also required to pay various healing period benefits for her cafeteria fall and pain-related work leave. Perry Manor was assessed one day of temporary total disability benefits to be paid in addition to the emergency room medical expenses Harpole incurred as a result of her fourth knee injury at Perry Manor.

B. The Ruling on Appeal to the Industrial Commissioner

IBP appealed the deputy’s ruling to the industrial commissioner who affirmed in every area except for the assessment of permanent total disability. The commissioner reduced that award to 40% permanent partial disability or 200 weeks of disability. On this appeal, Perry Manor argued the commissioner had no authority to review the deputy’s decision against Perry Manor because neither it nor Har-pole appealed. The commissioner assumed authority and affirmed in full the deputy’s award against Perry Manor.

C.The Ruling on Judicial Review to the District Court

IBP appealed to the district court. Har-pole filed her own cross-appeal. Perry Manor did not appeal nor did any party question the validity of the judgment against Perry Manor. The district court reversed the award against IBP in its entirety. IBP was required to pay no additional disability to Harpole. The district court then remanded the case back to the industrial commissioner for a re-examination of Perry Manor’s liability in conjunction with its assessed disability payments. Harpole appeals this decision. Perry Manor petitioned our court for a writ of certiorari. We granted this petition and now hear both arguments.

II. Scope and Standard of Review

A. Writ of Certiorari

This court restricts review of a decision on writ of certiorari for correction of errors at law. Halverson v. Iowa Dist. Ct. 532 N.W.2d 794, 797 (Iowa 1995). “A petition for a writ of certiorari is proper when the district court is alleged to have exceeded its jurisdiction or to have acted illegally.” State Pub. Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). We will sustain the writ when the trial court has exceeded its authority. Iowa Dep’t of Transp. v. Iowa Dist. Ct., 588 N.W.2d 102, 103 (Iowa 1998). If we decide that Perry Manor was not a party to the district court decision because no specific appeal had been taken, it is authorized to seek review by writ. Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991). However, if we find the district court had authority and Perry Manor was a party in the district court suit, we will treat Perry Manor’s case as a direct appeal. Iowa R.App. P. 304 (“If any case is brought by appeal, certiorari, or discretionary review, and the appellate court is of the opinion that another of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought.”).

B. Direct Appeal

Statutory law dictates how we review appeals from administrative actions. Iowa Code § 17A.19(8) (1999). “On review of agency actions, this court functions solely in an appellate capacity to correct errors of law on the part of the agency.” Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000) (citing Glowacki v. State Bd. of Med. Exam’rs, 516 N.W.2d 881, 884 (Iowa 1994)).

The subsequent appeal of the district court’s review of the agency decision “is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function.” Id. However, the district court, as well as this court, is “bound by the commissioner’s factual findings if they are supported by substantial evidence in the record.” Bergen v. Iowa Veterans Home, 577 N.W.2d 629, 630 (Iowa 1998). The district court may reverse the agency finding if it is not supported by substantial evidence. Iowa Code § 17A.19(10)(f). Upon our review of the district court’s reversal, “we apply the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court.” IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000). We will affirm if the district court satisfied its standard of review.

III. Issues on Appeal

A. Writ of Certiorari

We are asked to consider whether the district court acquires authority to review awards against an employer in a consolidated disability claim when petitioned for judicial review by only one of the two employers, and the claimant does not seek review. This is an issue of first impression before this court.

It is clear that neither Perry Manor nor Harpole appealed the decision made by the deputy commissioner ordering Perry Man- or to pay certain disability benefits. Because Harpole’s case against Perry Manor was consolidated with Harpole’s case against IBP, when IBP appealed, the reviewing industrial commissioner passed judgment on both awards even though no party argued the Perry Manor judgment was in error. The commissioner agreed that the Perry Manor judgment was proper and did not address any obstacles it may have hurdled to make such a finding.

Although not a captioned party, Perry Manor filed a brief in the district court proceeding and re-asserted its belief that its judgment should not be reviewed because no party was contesting it. The district court recognized that “Perry Man- or [was] not named in the appeal or cross-appeal.” Nevertheless, the district court considered the Perry Manor judgment and ordered the Perry Manor case back to the commissioner for re-evaluation.

We have addressed a similar question in Sioux City Brick & Tile Co. v. Employment Appeal Board, 449 N.W.2d 634 (Iowa 1989). Five different employees filed separate agency disability actions against the same employer. Sioux City Brick, 449 N.W.2d. at 636. These cases were consolidated at the time of hearing. Prior to consolidation, the cases had proceeded independently. See id. at 638. Following a favorable verdict for each employee, the employer sought judicial review with the district court in the applicable time period, naming only one party. After the time for petitioning for judicial review had expired, the employer sought to amend the petition to include the other four claims. These four employees then argued that, although consolidated, each claim was still separate, and review should have been taken in a timely matter for eaeh individually. Conversely, the employer argued that consolidation of the claims created only one claim. As such, its petition for one included review of all. The district court allowed the employer to amend the petition to include the other four claims.

On review, our court stated: “At the outset, we reject the employer’s contention that this case involves review of only one, and not five, agency actions.” Id. We were persuaded that each claim was filed separately, each was for a different amount, and each was assigned a separate hearing number. We found that “the claimants [were] not coparties to a single agency action; their contested cases [were] similar, but at the same time, separate.” Id. Accordingly, “the district court exceeded its authority by granting the employer leave to amend its petition.... ” Id. at 639.

The courts of our state cannot expand their judicial review jurisdiction by allowing appeal of agency action in contested cases beyond the time limit specified for that purpose by the legislature. If a party’s failure to timely appeal agency action in one case could be cured merely by amendment of a timely petition for judicial review of agency action in another case — even though the cases turn on similar facts — then the jurisdictional time limits prescribed by the legislature would be rendered meaningless.

Id. at 688 (emphasis added).

We further recognized:

This case illustrates the distinction between “lack of subject matter jurisdiction” and “lack of authority to hear a particular case”.... The district court has subject matter jurisdiction over appeals from agency action, but because that subject matter jurisdiction was not properly invoked by timely petition ..., the court lacks authority to exercise its jurisdiction over those cases.

Id. at 639 n.6. In the present case, Perry Manor was never named in the pleadings of the intra-agency appeal or the petition for judicial review to the district court, nor was the validity of this judgment challenged in any way. Although Perry Man- or does not make this argument, we note that no timely petition including Perry Manor’s judgment was received by the district court. We are persuaded that this is analogous to the above case.

Obviously, the circumstances of consolidation vary in our set of facts from those in Sioux City Brick. Harpole filed four claims against two different employers. Only one claim dealt with Perry Manor. The other three exclusively applied to IBP. But similar to Sioux City Brick, the present claims were only consolidated for hearing purposes. All prehearing procedures such as the pleadings, answers, discovery, and most depositions were conducted separately. Each claim was assigned a different hearing number and pertained to different injuries. This was also the case in Sioux City Brick. While the initial ruling by the deputy commissioner, and later the commissioner, included both the IBP judgment and the Perry Manor judgment, the ruling divided its holding into two parts and did not commingle its findings between the two. It is true that the employees in Sioux City Brick each received separate rulings, however, these were, for the most part, verbatim copies of the same ruling. See id. at 638.

In a more recent decision, we adopted the federal court’s view of the effect of consolidation. Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 419-20 (Iowa 1994) (citing Cole v. Schenley Indus., Inc., 563 F.2d 35, 38 (2d Cir.1977)). We stated: “Although cases may be consolidated for trial, the cases generally preserve their separate identity.” Id. at 420. Because consolidation is a mere procedural device used to promote judicial economy, “consolidation cannot effect a merger of the actions or the defenses of the separate parties.” Cole, 563 F.2d at 38; see also 46 Am.Jur.2d Judgments § 63, at 420 (1994) (“The theory behind this position is that except for the consolidation of the cases for convenience of pretrial and trial procedure the cases maintain their separate identities throughout the litigation.... ”).

We recognize that Harpole could have challenged both judgments in a single petition if she had specifically named both employers. See First Nat’l Bank v. Louisiana Tax Comm’n, 289 U.S. 60, 62, 53 S.Ct. 511, 512, 77 L.Ed. 1030, 1033 (1933). However, her appeal was limited to the commissioner’s judgment against IBP. The crucial distinction to the First National rule is that the Perry Manor judgment was never challenged by either IBP or Harpole, nor included in their respective petitions for judicial review. Moreover, an exception to the general rule espoused in First National applies:

[A] court may construe a single notice of appeal to encompass two consolidated cases, even though the cases have not completely merged and technically require separate notices of appeal, if the appellant’s intent to appeal both cases is apparent and there is no prejudice to the adverse parties. However, where the appellant notices the appeal of a specified judgment only, or a part thereof, rather than simply appealing from the entire judgment, only the specified issues may be raised on appeal. Under such circumstances, the court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal, because the intent to appeal is not apparent and because prejudice to the adverse party is likely to result if review is granted. Prejudice to the adverse party is especially likely to result where parts of a judgment are truly independent, as there is more likelihood that the designation of a specified judgment, or part thereof, in the notice of appeal will be construed as an intent to leave the unmentioned portions undisturbed. Similarly, where the appellant files a single notice of appeal from the second of two consolidated cases and where it is clear from the record that the appellant abandoned the claims in the initial consolidated case, the court may not construe the single notice of appeal to encompass both consolidated cases.

5 Am.Jur.2d Appellate Review § 335, at 106-07 (1995) (emphasis added).

IBP did not name Perry Manor as a party in its intra-agency appeal and neither IBP nor Harpole named Perry Manor in their petitions for judicial review. It is clear that Harpole abandoned any challenge of the Perry Manor award because she never argued it was wrong or improper in any subsequent forum. Similarly, IBP’s appeal had nothing to do with Perry Manor’s award. IBP did not argue Perry Manor should share some of the cost or that it was paying for a benefit rightfully charged to Perry Manor.

To treat the petition for judicial review as a challenge of the Perry Manor judgment imposes an extreme undue burden on Perry Manor because (1) Perry Manor agreed it owed the amount of judgment; (2) Harpole never argued Perry Manor should pay more; (3) The remand by the district court required Perry Manor to relitigate a judgment no party ever questioned; and (4) The sheer expense of litigation to Perry Manor looms large given that it is forced to spend money asking the court to affirm the judgment against it. Moreover, if Perry Manor’s case had never been consolidated with IBP’s, and Perry Manor had a judgment levied against it, when no appeal was taken, the decision would be final. For these reasons, we agree that consolidation does not have the effect of a complete merger into one indivisible case in these circumstances. The district court had no authority to hear the agency’s decision regarding Perry Manor. Therefore, we sustain the writ.

B. Direct Appeal

On direct appeal we are asked to determine whether the district court’s decision to revoke all disability benefits ordered against IBP was proper. Specifically, we consider whether the commissioner’s decision was supported by substantial causal evidence such that the district court erred in reversing it. Iowa Code section 17A.19 controls how the district court should review the agency decision. We will affirm the district court if the agency’s decision was:

f. Based upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole. For purposes of this paragraph, the following terms have the following meanings:
(1) “Substantial evidence” means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
(3) “When that record is viewed as a whole” means that the adequacy of the evidence in the record before the court to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witnesses and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact.

Iowa Code § 17A.19(10)(f)(l), (3).

The district court was persuaded that there was not substantial evidence to reopen the previous settlement between IBP and Harpole. The court found no substantial evidence to support an award for permanent partial disability because of the testimony concerning the effect the non-work-related fall had on Harpole’s injury and ability to work. The district court felt the record did not adequately reflect causation. The relevant discussion and conclusion is provided below:

While Harpole’s right lower extremity and back condition may have been aggravated by limitations in the function of Harpole’s left knee, Dr. Wirtz specifically concluded that Harpole would have recovered from the [initial knee injury] and patellectomy with “no alteration of function.”
... However, following the [non-work-related] slip and fall injury, Dr. Wirtz noted that Harpole had functional restrictions. The only rational conclusion that can be reached is that it was the restriction in function following the slip and fall injury that led to the development of Harpole’s right leg and back conditions, not the IBP injury for which there was no alteration of function.
... In light of Harpole’s subsequent injuries, and expert medical testimony in the record there is not substantial evidence for the Commissioner to conclude that Harpole proved by a preponderance of the evidence that the [first knee injury] at IBP was a proximate cause of Harpole’s whole body industrial disability-
It was Harpole’s burden to prove by a preponderance of the evidence that the alleged injury is a proximate cause of the disability upon which the claim is based. The same is true with regard to the healing period and medicals. For reasons stated above, Harpole has simply not met this burden.

It is clear the district court gave the most weight to the testimony of Dr. Wirtz and determined the other contrary medical testimony was insufficient to provide causation to the “neutral, detached, and reasonable person.” See id. § 17A.19(10)(f)(l).

On appeal, Harpole argues that the commissioner’s decision should be upheld. Harpole takes issue with the district court’s decision because she feels it imper-missibly relied on its own findings of fact, replacing those found by the commissioner. Harpole is correct that “judgment calls are to be left to the agency.” Burns v. Bd. of Nursing, 495 N.W.2d 698, 699 (Iowa 1993); see also Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992) (“[Jjudgment calls are [the] province of administrative tribunal, not the court’s.” (citing Mercy Health Ctr. v. State Health Facilities, 360 N.W.2d 808, 809 (Iowa 1985))). “The [cjommissioner is entitled to a substantial amount of latitude in making inherently fact-based determination[s].” Oscar Mayer, 483 N.W.2d at 829. However, while discretion is left to the agency, Iowa Code section 17A.19 makes it clear that if the agency’s findings of fact are not supported by substantial evidence, the district court is proper to reverse because “the person seeking judicial relief [has] been prejudiced” by this unsubstantiated decision. See Iowa Code § 17A.19(10).

Obviously this is an issue closely tied to the medical testimony and facts present. When the commissioner reviewed this information, she concluded that the first knee injury at IBP was the aggressor in' the subsequent injuries, and was, for all practical purposes, “the real culprit” when the later injuries occurred. Thus, causation was evident and a disability award was necessary. Looking at those same facts, and weighing them differently, the district court concluded that the slip and fall caused the increased injury and the initial injury would have healed to its maximum extent had this second injury not occurred. Accordingly, causation could not be shown and any additional award was not justified.

“An agency’s decision does not lack substantial evidence because inconsistent conclusions may be drawn from the same evidence.” Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). This statement is the hallmark of this case. Regardless that there is contradictory medical evidence present, “[i]n such a case we cannot interfere with the commissioner’s findings of fact.” Id. If a reasonable person could have concluded the initial injury exacerbated the later problems and, thereby, amounted to proximate cause, the district court erred by reversing the commissioner’s ruling. Stated another way, because

[t]he review is for correction of errors at law, not de novo, ... the findings of the industrial commissioner have the effect of a jury verdict.... The possibility of drawing inconsistent conclusions from the same evidence does not mean an agency’s decision lacks substantial support. In the case of conflict in the evidence we are not free to interfere with the commissioner’s findings.

Kostelac v. Feldman’s, Inc., 497 N.W.2d 853, 856 (Iowa 1993) (citations omitted).

First, it must be noted that only one doctor treated Harpole throughout her periods of injury, from the first injury to the last. This was Harpole’s treating physician and orthopedic surgeon, Dr. Wirtz. Of the numerous medical opinions provided in the record, his most specifically analyzed Harpole’s condition, considering each injury separately and discussing the effect of the non-work-related slip and fall. Dr. Wirtz concluded that any subsequent impairment Harpole suffered was a result of the slip and fall and not the initial left knee injury, although he also recognized that her first injury had something to do with her gait problem and her increased pain to her right knee and lower back. Dr. Wirtz’s opinion was overwhelmingly relied upon by the district court. The other medical testimony espoused a different view that the initial injury, while exacerbated by the slip and fall, was the real instigator of her recurring injury and pain.-

1) Dr. Wirtz — He maintained that the initial left knee injury resulted in a 20% permanent partial impairment of Harpole’s left leg. Following her initial surgeries, Harpole was required to wear an immobilizer on her left leg. Regarding her non-work-related slip and fall, Dr. Wirtz concluded that this would be a “significant contributor to this [additional] loss of motion; therefore, would be the cause of the present restrictions.” Dr. Wirtz concluded that had Harpole not fallen the second time, her recovery would have been complete to its maximum potential. After Harpole’s third fall at IBP, Wirtz concluded this was a temporary aggravation of her 1993 slip and fall. When Harpole developed right knee pain in 1995, Wirtz found this was caused by a congenital defect in her right knee and only minimally by the added burden of Harpole favoring her right knee over her left knee because of her initial injury. Oddly, Wirtz concluded that the right knee and lower back pains were temporary soft tissue injuries even though he also felt that her right knee problems were genetic. The deputy commissioner recognized that in this regard, “Dr. Wirtz’s opinion does not make much sense.” The commissioner concurred.
2) Dr. Misol — He blamed Harpole’s fall in the IBP cafeteria on the fact that the removal of her patella necessitated by her first knee injury caused balance and stability problems which were also present when she slipped and fell in the non-work-related setting. Moreover, the immobilizer she was wearing when she fell the second time likely had something to do with her fall. She was only wearing the immobilizer because of her first knee injury. His opinion was that the second fall was a factor in her increased injury, but the real force behind it was her initial knee injury at IBP.
3) Dr. Tearse — He concluded that the exacerbation caused by Harpole’s injury while working at Perry Manor was a result of the underlying worsened condition caused by the first left knee injury in 1991. He was also of the opinion that she had obtained maximum healing of her left knee, therefore he did not expect her other conditions to improve.
4) Dr. Beattie — He concluded that Har-pole’s right knee and lower back problems were chronic and would only worsen as time goes by. These injuries were caused by the gait problem resulting from the removal of Harpole’s patella necessitated by her 1991 fall.
5) Dr. Koontz — He also concluded that Harpole would have permanent pain from hér right knee and lower back equaling 5% permanent impairment caused by the removal of Harpole’s patella. The commissioner found this opinion, coupled with Dr. Beattie’s to be more persuasive than Dr. Wirtz’s regarding these new injuries.

To summarize, only Dr. Wirtz posited that the second fall was the true cause of the later injuries. The other four doctors insisted that the first fall precipitated the later injuries, especially due to the removal of Harpole’s patella. Each found that the subsequent pain and impairment were directly attributable to the first injury. The district court dismissed these latter opinions in favor of Dr. Wirtz’s. Using just the Wirtz opinion, one could conclude that it was not reasonable to attribute the later injury to IBP. But considering every opinion together and giving them the same weight afforded by the commissioner, there was substantial evidence to affirm. Although the weight of the medical experts’ testimony varied, we cannot say it was unsupportable for the commissioner to find a causal relationship given everything in the record. When such is the assessment, the district court cannot reverse the commissioner’s decision. We have said:

Whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony. The weight to be given such an opinion is for the finder of fact, in this case the commissioner....
... The commissioner as trier of fact has the duty to determine the credibility of the witnesses and to weigh the evidence ....

Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995) (citations omitted).

“Ultimately, the question is not whether the evidence might support a different finding, but whether the evidence supports the findings actually made.” Sherman v. Pella Corp., 576 N.W.2d 312, 320 (Iowa 1998). Even if “as fact finder, we might have found otherwise,” we must affirm if there is enough evidence to support the finding. Id. The commissioner’s decision is supported by substantial evidence. The district court erred in not so finding.

We reverse the decision of the district court and remand for entry of judgment affirming the agency decision. Costs in these consolidated cases are assessed against IBP, Inc.

REVERSED AND REMANDED ON APPEAL; WRIT SUSTAINED.


author: CARTER, Justice.

text:
    Charles N. TIANO and Frankie Tiano, Individually and on Behalf of Vincent Tiano, Appellants, v. Charles PALMER, in His Capacity as Director, Iowa Department of Human Services, Karen Wood, Kristi Duncan (Dierking), Cory Purvis, and Peggy Stevens, Appellees.
    No. 99-0641.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      William W. Heaivilin and Sharon Yon of Iowa Protection & Advocacy Services, Inc., Des Moines, and Curt L. Sytsma, Des Moines, for appellants.
    Thomas J. Miller, Attorney General, and Barbara E.B. Galloway, Assistant Attorney General, for appellee Charles Palmer.
    Steven P. Wandro and Michelle M. Cas-per of Wandro & Associates, P.C., Des Moines, for appellees Karen Woods, Kristi Duncan Dierking, Cory Purvis, and Peggy Stevens.
   CARTER, Justice.

Charles and Frankie Tiano (the Tianos), as parents and guardians of Vincent Tiano, a dependent adult with mental disabilities, appeal from an order affirming the Iowa Department of Human Services (DHS) decision altering a prior finding of that agency that certain individuals providing care to Vincent Tiano had abused him. The district court dismissed the petition for judicial review on the basis that the Tianos lacked standing. In the alternative, it concluded that the Tianos were given proper notice of the final hearing in the matter and that their failure to appear at that hearing precludes the granting of relief. After reviewing the record and considering the arguments presented, we conclude that the Tianos do have standing to pursue this challenge to the agency’s decision. We disagree with the district court’s alternative conclusion that on the record presented the Tianos were shown to have received adequate notice. We reverse the judgment of the district court.

In 1997 four of Vincent’s caretakers (in-tervenors herein) were alleged to have abused him. Pursuant to the procedures set forth in Iowa Code chapter 235B, DHS deemed those allegations to be founded. The names of intervenors Kristi Duncan (Dierking), Cory Purvis, Karen Wood, and Peggy Stevens were accordingly placed on the dependent adult abuse registry maintained by DHS.

Each of the four alleged abusers (inter-venors) filed an appeal from DHS’s finding of a founded allegation of dependent adult abuse. The Tianos were advised that that appeal had been taken. On June 30, 1997, the Tianos wrote the department of inspections and appeals requesting an explanation of their rights concerning the interve-nors’ appeals. Neither the department of inspections and appeals nor DHS answered the Tianos’ letter.

The department of inspections and appeals scheduled an evidentiary hearing for all four intervenors. The hearing, originally scheduled for October 6, 1997, was changed. to February 23, 1998, but was later moved up to January 12, 1998. The Tianos contend that they received the first two hearing notices but did not receive the notice moving the hearing to January 12, 1998.

On January 12, 1998, a hearing was held before an administrative law judge. The Tianos did not appear at that hearing. The administrative law judge issued a proposed decision reciting that the issues between the intervenors and DHS had been resolved pursuant to a settlement agreement. In that agreement, DHS consented to (1) reduce the findings of dependent adult abuse concerning Kristi Duncan (Dierking) and Cory Purvis from “founded” to “unfounded,” (2) reduce the findings of dependent adult abuse concerning Karen Wood and Peggy Stevens from “founded” to “undetermined,” and (3) remove the intervenors’ names from the registry.

On January 22, 1998, the Tianos requested the director of DHS to review the administrative law judge’s decision, alleging they had not received notice of the January 12, 1998 hearing. In lieu of issuing a final decision, DHS Director Palmer ordered a limited remand. The director concluded that the Tianos had standing to participate in the appeal process and ordered the administrative law judge to conduct an evidentiary hearing on the limited issue of whether they had received proper notice of the January 12, 1998 hearing.

After an evidentiary hearing, the administrative law judge issued a proposed decision finding that proper notice of the January 12, 1998 hearing had been given to the Tianos. The Tianos requested the agency to review the proposed decision. The agency’s final decision upheld the settlement agreement between DHS and the intervenors and adopted the administrative law judge’s proposed decision concerning the issue of notice to the Tianos.

The Tianos filed a petition for judicial review. The district court dismissed that petition, finding that the Tianos lacked standing. In an alternative ruling, the district court upheld DHS’s determination that the Tianos had been given adequate notice of the January 12, 1998 hearing.

I.The Standing Issue.

Iowa Code section 235B.10 (1997) provides:

1. Any person or that person’s attorney shall have the right to examine dependent adult abuse information in the registry which refers to that person. The registry may prescribe reasonable hours and places of examination.
2. A person may file with the department within six months of the date of the notice of the results of an investigation, a written statement to the effect that dependent adult abuse information referring to the person is in whole or in part erroneous, and may request a correction of that information or of the findings of the investigation report. The department shall provide the person with an opportunity for an evidentiary hearing pursuant to chapter 17A to correct the information or the findings, unless the department corrects the information or findings as requested....
3. The decision resulting from the hearing may be appealed to the court of Polk county by the person requesting the correction or to the court of the district in which the person resides.

The Tianos urge that the words “a person referred to” in a dependent child abuse report include the victim or his guardians. DHS agrees with this argument. Only the intervenors argue to the contrary.

The district court adopted the argument made by the intervenors and concluded that the Tianos did not have standing. In so doing, the district court relied on Kruse v. Iowa Department of Human Services, 500 N.W.2d 455 (Iowa App.1993). In Kruse the court of appeals examined a child abuse provision that includes substantially the same wording as Iowa Code section 235B.10. That statute provided:

1. Any person or that person’s attorney shall have the right to examine child abuse information in the registry which refers to that person. The registry may prescribe reasonable hours and places of examination.
2. a. A person may file with the department within six months of the date of the notice of the results of an investigation required by section 232.71, subsection 7, a written statement to the effect that child abuse information referring to the person is in whole or in part erroneous, and may request a correction of that information or of the findings of the investigation report. The department shall provide the person with an opportunity for an evidentiary hearing pursuant to chapter 17A to correct the information or the findings, unless the department corrects the information or findings as requested.

Iowa Code § 235A.19 (1991). The court of appeals concluded that “a person” as used in the statute refers only to the person accused of child abuse and that only the alleged abuser may request a correction of the abuse report or participate in an evi-dentiary hearing. Kruse, 500 N.W.2d at 459.

The Tianos argue that in 1994 the Iowa legislature clarified its original intent that the child abuse victim, as well as the alleged abuser, is a “person” within the meaning of Iowa Code section 235A.15. In 1994 Iowa Acts chapter 1130, section 10, the legislature changed the wording of Iowa Code section 235A.19. In lieu of the words “[a]ny person,” the legislature substituted the words “[a] subject of a child abuse report, as identified in section 235A.15, subsection 2, paragraph ‘a.’ ” Subsequent references in the statute to the word “person” were changed to “a subject of a child abuse report” or simply “subject.” The subject of a child abuse report, as identified in section 235A.15(2)(a), includes, in addition to the alleged abuser, the child, and the child’s parent, guardian, or attorney.

Although ordinarily any material change in the language of a statute is presumed to alter the law, the time and circumstances of an amendment may indicate that the legislature merely intended to clarify the intent of the original enactment. State v. Guzman-Juarez, 591 N.W.2d 1, 3 (Iowa 1999). Changing general descriptions to specific designations may evince an intent to clarify rather than alter a statute’s legal consequence. Van Der Maaten v. Farmers Coop. Co., 472 N.W.2d 283, 284 (Iowa 1991); Beier Glass Co. v. Brundige, 329 N.W.2d 280, 285 (Iowa 1983). In applying these rules to the present dispute, we are convinced that the 1994 amendment was only intended to make specific that which was intended by the original enactment.

As a result of our conclusion, another rule of statutory interpretation comes into play. When the same word or term is used in different statutory sections that are similar in purpose, they will be given a consistent meaning. Farmers Coop. v. DeCoster, 528 N.W.2d 536, 538 (Iowa 1995); Ida County Courier v. Attorney Gen., 316 N.W.2d 846, 850 (Iowa 1982). In the application of the latter principle, we interpret the language in section 235B.10 to have the same meaning as the matching language of the original version of section 235A.19. The Tianos and DHS are correct in assuming that the Tianos had standing to participate as parties in the contested case hearing at issue here. Under the Iowa Administrative Procedure Act, a party includes one “seeking and entitled as of right to be admitted as a party.” Iowa Code § 17A.2. Section 17A.12(1) of that Act provides that all parties shall be offered an opportunity for hearing.

II. The Notice Issue.

The Tianos contend that the district court erred by relying on a presumption that they received notice of the hearing in the face of their testimony that they had not. DHS argues that substantial evidence within the administrative record supports the finding of the administrative law judge that the department of inspections and appeals properly addressed and mailed the hearing notice to the Tianos.

The parties place various interpretations on our decisions in Liberty Mutual Insurance Co. v. Caterpillar Tractor Co., 353 N.W.2d 854 (Iowa 1984), and Eves v. Iowa Employment Security Commission, 211 N.W.2d 324 (Iowa 1973). In the Eves case, we held that in the absence of custom, statute, or express contract stipulation when a notice affecting a right is sought to be served by mail, the service is not effective until the notice comes into the hands of the one to be served. Eves, 211 N.W.2d at 327. We refused to recognize in Eves that this principle could be altered by an administrative regulation. In the Liberty Mutual case, we recognized that, when a statute authorizes service by mail, service is complete upon mailing. Liberty Mut., 353 N.W.2d at 858. In conjunction with that principle, however, we also recognize that proof that an addressee did not receive a piece of mail is competent evidence that it was not mailed. Id. The opinion was inconclusive concerning the effect of presumptions of receipt in the face of evidence that the notice was not received by the addressee. The decision implies that that presumption is weak when the party giving notice must rely on custom and has no personal recollection of correctly addressing the notice and depositing it in the United States mail. Id. at 859.

We need not resort to these presumptions in the present case. It is provided in the Iowa Administrative Procedure Act that

[i]n a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice in writing delivered either by personal service as in civil actions or by certified mail return receipt requested. However, an agency may provide by rule for the delivery of such notice by other means.

Iowa Code § 17A.12(1).

DHS and the intervenors urge that service by ordinary mail with first-class postage prepaid addressed to a party’s last known address is specifically authorized by agency rule. To support this conclusion, they rely upon Iowa Administrative Code rule 441 — 7.10(7)(b). A reading of this rule discloses that it only pertains to service on the “appellant” in the hearing process. No mention is made in the regulation concerning notice to the other parties in interest. We conclude that the failure of the regulation to provide a specific method of service for those parties means that they are entitled by reason of section 17A.12(1) to personal service as in civil actions or by certified mail return receipt requested. Such notice was not given to the Tianos in the present case. As a consequence, the decision of the district court is reversed, the final decision of the agency is vacated, and the matter is remanded to the agency for a new contested case hearing in which the Tianos may participate.

REVERSED AND REMANDED.

      . The rule in question provides:
      The notice may be served upon the appellant by personal service as in civil actions, or by certified mail, return receipt requested, or by first-class mail, postage prepaid, addressed to the appellant at the last known address. Iowa Admin. Code r. 441 — 7.10(7)(b) (emphasis added).


author: LAVORATO, Chief Justice.

text:
    Darlene HOSKINSON and Deanna Cornwell, as Coexecutors of the Estate of Lloyd Hoskinson, Appellants, v. CITY OF IOWA CITY, Appellee.
    No. 99-0702.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      John T. Nolan, Iowa City, and Ralph L. Neuzil and Jay W. Sigafoose of Neuzil & Sanderson, Iowa City, for appellants.
    Andrew P. Matthews, Iowa City, for ap-pellee.
   LAVORATO, Chief Justice.

In this slip-and-fall case, a jury found against the plaintiffs on their claim of negligence against a municipality for its failure to correct a dangerous condition on the municipality’s walkway in a city park. Because we conclude it was prejudicial error to give a municipal immunity instruction, we reverse and remand.

I. Background Facts and Proceedings.

On February 20, 1997, Lloyd Hoskinson was walking his dog on an asphalt walkway winding through several baseball diamonds in a city park located in Iowa City, Iowa. He slipped and fell on ice. Because of the fall, Hoskinson suffered a head injury.

Hoskinson sued the city, seeking damages for his injuries. His wife, Darlene, joined in the petition, seeking loss of consortium. The petition alleged that the city was negligent in (1) failing to clear the walkway of snow and ice; (2) failing to cover the surface with salt, sand, or other traction agent; (3) designing the walkway and the landscape immediately surrounding it so as to cause water to pool and form ice; and (4) failing to give notice of the hazardous icy walkway. Lloyd died (from unrelated causes) during the pendency of these proceedings, and the district court substituted Lloyd’s estate.

The parties tried the case to a jury, which found the city was not at fault. The district court overruled Hoskinson’s motion for new trial.

II. The issues.

The plaintiffs contend the district court erred in concluding that the walkway in question is not a “sidewalk” under Iowa Code section 364.12(2)(b) (Supp.1995). They also contend the district court erred in instructing the jury on municipal immunity under Iowa Code section 668.10.

III. Scope of Review.

The manner in which we review a denial of a motion for new trial depends on the grounds for new trial alleged in the motion and ruled upon by the district court. Weyerhaeuser v. Thermogas, 620 N.W.2d 819, 823 (Iowa 2000). When the motion and the ruling are based on a claim that the district court erred on issues of law, our review stands or falls on the correctness of the court’s ruling on the legal question. Id. Here, the motion for new trial and the issues raised on appeal involve challenges to the correctness of the district court’s ruling on legal questions.

We review jury instructions for correction of errors at law. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 373 (Iowa 2000). Error in giving a jury instruction does not merit reversal unless the complaining party has been prejudiced. Id.

IV. The Sidewalk Issue.

A. Background. Under Iowa Code section 364.12(2),

[a] city shall keep all public ways, squares, and commons open, in repair, and free from nuisance, with the following exceptions:
b. The abutting property owner is responsible for the removal of the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice.... The city’s general duty under this subsection does not include a duty to remove natural accumulations of snow and ice from the sidewalks. However, when the city is the abutting property owner it has the specific duty of the abutting property owner set forth in this paragraph.

Iowa Code § 364.12(2) (emphasis added).

In Peffers v. City of Des Moines, this court held that a prior version of this statute, Iowa Code section 364.12(2) (1979), imposed liability on municipalities, rather than abutting property owners, for injuries to pedestrians caused by negligent failure to remove snow and ice from public sidewalks. 299 N.W.2d 675, 678-79 (Iowa 1980).

Later, the legislature abrogated the Peffers ruling by amending subsection (b). See 1984 Iowa Acts ch. 1002, § 1; Fritz v. Parkison, 397 N.W.2d 714, 717 n. 1 (Iowa 1986); Busselle v. Doubleday, 486 N.W.2d 45, 47 (Iowa App.1992). Iowa Code section 364.12(2)(b) now imposes liability on the “abutting landowner for failing to use reasonable care in the removal of snow and ice from the sidewalk.” Fritz, 397 N.W.2d at 717 n. 1; see also Busselle, 486 N.W.2d at 47. And, if the city is the abutting landowner, it has the same liability. See Iowa Code § 364.12(2)(b) (“However, when the city is the abutting property owner, it has the specific duty of the abutting property owner set forth in this paragraph.”).

At the conclusion of the evidence, the district court ruled as a matter of law that the walkway in this case is not a sidewalk for the purposes of section 364.12(2)(b). Whether the walkway is a sidewalk determines whether the city had a duty to the plaintiffs under section 364.12(2)(b) to remove snow and ice from the walkway. That determination is a legal question for the district court, not the jury, to decide. Humphries v. Methodist Episcopal Church, 566 N.W.2d 869, 871 (Iowa 1997). Our task is to determine whether the district court was correct in its ruling.

B. Analysis. Iowa Code chapter 364 does not define sidewalk. Iowa Code section 321.1(72) defines sidewalk as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians.” This definition, however, is of little help because its application is limited to chapter 321. See Iowa Code § 321.1 (“The following words and phrases when used in this chapter shall, for the purposes of this chapter, have the meanings respectively ascribed to them.” (Emphasis added.)); Humphries, 566 N.W.2d at 871 (holding that definition in Iowa Code chapter 321 (1995) was expressly confined to that chapter and did not apply to Iowa Code section 364.12 (1995)).

We think two early Iowa cases control our determination. In considering the power of the City of Des Moines to narrow sidewalks, this court stated:

A sidewalk is a part of the street, exclusively reserved for pedestrians, and constructed somewhat differently than other portions of the street, made use of by animals and vehicles, generally. Whatever may be the difference, it constitutes a part of the street.
“The word ‘sidewalk’ has a well-understood meaning. We understand ex vi termini that a part of the street is meant. It is the public way, generally somewhat raised, especially intended for pedestrians, and adapted to their use, usually constructed in this country as a part of the street at or along the side of the part thereof especially designed and constructed for the passage of vehicles and animals, there being often, if not generally, a gutter, also constituting a portion of the street, between such parts; and when the sidewalk is spoken of as being on a specific side of a designated street, it is to be understood to be a part so reserved of that street at or along the specific side of the roadway.”

Central Life Assurance Soc’y v. City of Des Moines, 185 Iowa 573, 577, 171 N.W. 31, 32 (1919) (quoting Wabash R.R. v. DeHart, 32 Ind.App. 62, 64, 65 N.E. 192, 193 (1902)) (citations omitted).

This definition is similar to that adopted by this court early in its history:

A sidewalk, so called, is part of the street. The fact that it is exclusively reserved for foot passengers, and is usually paved and constructed in a manner different from other parts of the street used for horses and vehicles, does not require it to be regarded as no part of the street. The convenience of the public may require it to be paved in a manner different from other parts of the street, and, in a measure, to be kept separate therefrom. It is, nevertheless, a part of the street, and may be paved with brick or stone, under the same authority which authorizes the improvement of the rest of the street.

Warren v. Henly, 31 Iowa 31, 37 (1870).

The definitions in Central Life and Warren identify two specific characteristics for a “sidewalk.” One, a sidewalk is a part of the street, constructed at or alongside of the street. And, two, it is exclusively reserved for pedestrian use. Contrary to the plaintiffs’ contention, the definitions employed in Central Life and Warren were more than dictum. Defining the term “sidewalk” was necessary to the court’s decision in both cases. We think the meaning followed in Central Life and Warren is the meaning the legislature had in mind when it used the word “sidewalk” in section 364.12(2)(b).

The great majority of cases that have defined “sidewalk” have likewise concluded that the word refers to a walkway that is a part of the street or is at or along the side of the street. See, e.g., City of Birmingham v. Shirley, 209 Ala. 305, 96 So. 214, 215 (1923) (holding that in common parlance a “sidewalk” is the part of the street assigned to the use of pedestrians); Manchester v. City of Hartford, 30 Conn. 118, 120 (1861) (holding that a “sidewalk” is a part of the road); Hancock v. Rush, 181 Ga. 587, 600, 183 S.E. 554, 561 (1936) (holding that in a city or town, a “sidewalk is that part of a street or highway that is intended or used by pedestrians”); City of Elmhurst v. Buettgen, 394 Ill. 248, 251, 68 N.E.2d 278, 281 (1946) (holding that “sidewalk” is simply a part of the street set apart for pedestrians); Marion Trust Co. v. City of Indianapolis, 37 Ind.App. 672, 676, 75 N.E. 834, 836 (1905) (“While the term ‘street’ in ordinary legal signification includes all parts of the way — the roadway, the gutters, and the sidewalk — yet • the term ‘sidewalk’ has come to be generally used in this country for the purpose of designating a footway for passengers at the side of a street or road.”); Blackburn v. Swift, 457 S.W.2d 805, 807 (Mo.1970) (holding that “sidewalk” is that part of a street that has been set aside for use by pedestrians); City of Ord v. Nash, 50 Neb. 335, 337, 69 N.W. 964, 965 (1897) (holding the term “sidewalk” denotes that portion of the highway that is set apart by dedication, ordinance, or otherwise for the use of pedestrians); Ham v. City of Durham, 205 N.C. 107, 108, 170 S.E. 137, 138 (1933) (holding “sidewalk” is a part of the street that town authorities have set aside for pedestrian use); Pitzer v. Sears, Roebuck & Co., 66 Ohio App. 35, 38, 31 N.E.2d 450, 452 (1940) (holding that “sidewalk” is that portion of the street usually devoted to pedestrian travel, but is nevertheless a part of the “street”); McCormick v. Allegheny County, 263 Pa. 146, 150, 106 A. 203, 203, 204 (1919) (holding that “sidewalk” is used to designate a portion of highway that has been set aside for pedestrians as distinguished from that which is used by vehicles); Blackburn v. Dillon, 189 Tenn. 240, 241, 225 S.W.2d 46, 47 (1949) (affirming trial court judgment which held that a “sidewalk” is a part of the street usually constructed as part of a street at or along the side of the part thereof especially designed and constructed for the passage of vehicles and animals).

Here, the walkway upon which Lloyd was walking in City Park was not located at or along the side of a road, street, or highway. For that reason, the district court was correct in ruling that the walkway is not a “sidewalk” for the purposes of section 364.12(2)(b).

The facts here are similar to those in Stabley v. Huron-Clinton Metropolitan Park Authority, 228 Mich.App. 363, 364, 579 N.W.2d 374 (1998), appeal denied, 459 Mich. 971, 591 N.W.2d 41 (1999). There, the plaintiff fell while roller-blading on a paved path in a park. Stabley, 579 N.W.2d at 375. The plaintiff sued for damages under a statutory exception to government immunity that holds municipalities liable for injuries stemming from negligently maintained sidewalks. Id. The defendants moved for summary judgment, contending the paved path was not a sidewalk, and therefore the governmental immunity exception did not apply. Id.

As here, the issue in Stabley was whether a paved trail running through a park is a “sidewalk.” The trial court concluded the trail was not a sidewalk within the meaning of the statutory exception to governmental immunity. Id. The appellate court agreed, concluding that

linking the word “sidewalk” with an adjacent road is in accord with the common and approved usage of the word.
Plaintiffs fall did not occur on the portion of the trail that runs adjacent to the roadway, but rather on the portion that runs through the wooded interior of the park. Because plaintiffs fall did not occur on a pedestrian way that ran alongside a public roadway, plaintiffs fall did not occur on a “sidewalk” [within the meaning of the statutory exception to the governmental immunity statute] .... Consequently, defendants are entitled to immunity.

Stabley, 579 N.W.2d at 377 (citations omitted).

We conclude the district court did not err in finding the walkway in question here is not a sidewalk within the meaning of Iowa Code section 364.12(2)(b).

Y. The Instruction Regarding Immunity Under Iowa Code Section 668.10.

The plaintiffs also contend the district court erred in giving the jury a municipal immunity instruction under Iowa Code section 668.10(2) (1995). In support of their contention, the plaintiffs argue that the city was not entitled to such an instruction because the walkway was not a highway, street, or road.

A. Background. The district court instructed the jury that, “[i]f the municipality proves it has complied with its policy or level of service for snow and ice removal, or placing sand, salt or other abrasive material on its walkways, your verdict will be for the City on this issue.”

The district court gave the instruction pursuant to section 668.10, which provides in part:

In any action brought pursuant to this chapter, the state or any municipality shall not be assigned a percentage of fault for any of the following:
2. The failure to remove natural or unnatural accumulations of snow or ice, or to place sand, salt, or other abrasive material on a highway, road, or street, if the state or municipality establishes that it has complied with its policy or level of service for snow and ice removal or placing sand, salt or other abrasive material on its highways, roads, or streets.

Iowa Code § 668.10 (emphasis added).

We have interpreted this provision to mean that

a city has immunity from liability for a suit based on negligence in its failure to remove “natural or unnatural accumulations of snow or ice” if it meets three requirements: (1) the snow or ice in question was on a highway, road, or street; (2) the city had a policy or level of service for snow and ice removal; and (3) the city complied with that policy or level of service.

Humphries, 566 N.W.2d at 872.

The issue here centers on the first part of the test: whether the snow or ice in question was on a highway, road, or street. The plaintiffs contend that, even if section 364.12(2)(b) (Supp.1995) is inapplicable, the liability shield afforded by section 668.10(2) (1995) does not apply because the walkway in question was not a “highway, road or street.” They claim the instruction barred the jury from considering the city’s liability under other provisions of Iowa Code section 364,12(2) (Supp.1995). For reasons that follow, we agree.

B. Analysis. Iowa Code section 364.12(2) imposes upon the city the duty “to keep all public grounds, streets, sidewalks, alleys, bridges, culverts, overpasses, underpasses, grade crossing separations and approaches, public ways, squares, and commons open, in repair, and free from nuisance....” Iowa Code § 364.12(2) (emphasis added).

Apparently, the district court viewed this language as imposing a duty on the city to keep the walkway free of any dangerous condition. We say this because the court gave a marshaling instruction that required the plaintiffs to prove that (1) a dangerous condition existed on the walkway, (2) the city had actual knowledge of the condition or the condition existed for such a period of time that the city in the exercise of ordinary care should have discovered it, (3) the city had a reasonable opportunity to correct the condition and did not, (4) the failure to correct the condition was a proximate cause of Lloyd’s injury, and (5) the amount of damage.

In a separate instruction, the district court told the jury that “[a] condition is dangerous if its character and location is such that a reasonably careful person should anticipate it would likely cause injury to a person using the walkway.” In another separate instruction, the district court told the jury that, “[o]nce a walkway has been placed, created, or installed, the municipality has a duty to use ordinary care to maintain it” and that “a violation of this duty is negligence.”

Neither party objected to these instructions. For that reason, they became the law of the case. See Pollmann v. Belle Plaine Livestock Auction, Inc., 567 N.W.2d 405, 411 (1997).

The immunity instruction, of course, allowed the jury to find for the city if it found the city had complied with its policy or level of service for snow and ice removal, or placing sand, salt, or other abrasive material on its walkways. There was evidence that it had complied with such policy. And the jury found for the city. Obviously then, prejudice resulted if the district court should not have given the instruction.

1. Is the walkway a road or a street? Iowa Code section 306.3 provides:

As used in this chapter or in any chapter of the Code relating to highways:
10. “Road” or “street” means the entire width between property lines through private property or designated width through public property or every way or place of whatever nature when any part of such way or place is open to the use of the public, as a matter of right, for purposes of vehicular traffic.

Iowa Code § 306.3 (1995) (emphasis added). The parties do not dispute that this provision is applicable to section 668.10(2).

It is undisputed that the walkway in question is not a street or road because it was not intended to be open to the public for vehicular traffic. Additionally, there was no evidence that it was actually so open. Left for our consideration, then, is whether the walkway qualifies as a “highway.”

2. Is the walkway a highway? There is no applicable statutory definition of “highway.” The dictionary defines “highway” several ways: “1. a main road, [especially] one between towns or cities .... 2. any public road or waterway. 3. any main or ordinary route, track, or course.” Webster’s Encyclopedic Unabridged Dictionary 903 (1996). We think the legislature had in mind the first meaning: “a main road, [especially] one between towns or cities.”

We look to the context in which the word is used when interpreting its meaning. See Lauridsen v. City of Okoboji, 554 N.W.2d 541, 544 (Iowa 1996). In applying this rule, we note that the first meaning is consistent with the statutory definition of road or street. The connecting link between the three words — highway, road, or street — is that “each is open to the use of the public, as a matter of right for purposes of vehicular traffic.”

Additionally, we note that the first subsection of section 668.10 provides immunity for the state and municipalities for the “failure to place, erect, or install a stop sign, traffic control device, or other regulatory signs.” Iowa Code § 668.10(1). This subsection further provides for assigning fault to the state or municipality for its failure to maintain the device. This signals the legislature’s intent to have section 668.10 apply to those thoroughfares where the public has a right to travel in vehicles.

Obviously, the walkway is not a “highway” under our interpretation of the word. Because the walkway is not a highway, road, or street, the municipal immunity afforded by section 668.10(2) does not apply. The district court therefore erred in giving the municipal immunity instruction and for reasons earlier stated, the error was prejudicial to the plaintiffs’ rights. Accordingly, we must reverse and remand for a new trial.

VI. Disposition.

In sum, we conclude the district court correctly ruled as a matter of law that the walkway is not a sidewalk for purposes of Iowa Code section 364.12(2)(b), thereby precluding the city’s liability under that provision.

The walkway is not a highway, road, or street for purposes of Iowa Code section 668.10(2). The district court therefore erred in giving the municipal immunity instruction pursuant to that provision. The error was prejudicial to the rights of the plaintiffs because the erroneous instruction allowed the jury to find for the city on the plaintiffs’ theory of negligence. The district court should therefore have granted the plaintiffs’ motion for new trial and its failure to do so constituted error.

Accordingly, we reverse and remand for a new trial.

REVERSED AND REMANDED.