author: MILLER, Retired Justice.

text:
    2007 SD 55
    NORTH STAR MUTUAL INSURANCE COMPANY, Plaintiff and Appellee, v. Glenn L. RASMUSSEN, Defendant and Appellant, and Keith O. Rasmussen, Auto-Owners Insurance Company, Brunswick Corporation, a Delaware Corporation, Mercury Marine, a division of Brunswick Corporation, and Crownline Boats, Inc., an Illinois Corporation, Defendants.
    No. 24078.
    Supreme Court of South Dakota.
    Considered on Briefs on March 19, 2007.
    Decided June 13, 2007.

      Michael J. Schaffer of Schaffer Law Office, Prof., LLC, Sioux Falls, South Dakota, Attorney for appellee.
    William Fuller of Fuller & Sabers, LLP, Sioux Falls, South Dakota, Attorneys for appellants. •
   MILLER, Retired Justice.

[¶ 1.] North Star Mutual Insurance Company initiated a declaratory judgment action against Glenn L. Rasmussen seeking a ruling that North Star had no duty to defend or indemnify Rasmussen under an umbrella policy. Each party filed motions for summary judgment. The trial court concluded there was no coverage under the umbrella policy and granted North Star’s motion. It held that North Star had no duty to defend claims against Rasmussen. Rasmussen appeals. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Mary Henkel is an insurance agent employed through the Puthoff Insurance Agency at its branch office, The Insurance Store, located in Howard, South Dakota. She was licensed as an insurance agent by the State of South Dakota on May 1, 1984. North Star appointed Henk-el as one of its agents on March 7, 1989. Her employer, Puthoff, and North Star had entered into an Agency Agreement in which Puthoff and its agents were allowed to solicit and negotiate insurance on behalf of North Star.

[¶ 3.] On April 8, 2000, Rasmussen purchased a 2000 Crownline boat. Shortly thereafter, he asked Henkel to acquire insurance coverage on the Crownline. She had acquired insurance for Rasmussen on numerous occasions in the past. Under their arrangement, Rasmussen would inform Henkel of the property he wished to have insured, and she would decide, according to Rasmussen’s various insurance needs, what type of insurance to obtain and the company with which to place the insurance.

[¶4.] Over the course of their relationship, Henkel obtained coverage for Rasmussen from various companies. For instance, in 1990, she acquired a homeowner’s insurance policy for him with North Star, and in 1991, a Personal Liability Umbrella Policy (umbrella policy) also through North Star. However, Henk-el acquired liability coverage on Rasmussen’s automobiles and the Crownline through Auto-Owners Insurance Company. According to Henkel, she had about six different companies from which to select umbrella coverage.

[¶ 5.] Although Henkel had the authority to solicit insureds for North Star, she did not have authority to bind North Star to an umbrella policy. She would merely submit an application on behalf of potential insureds. However, North Star identified Henkel as “Our Authorized Representative” on the umbrella policy. This language was underneath Henkel’s signature. Rasmussen paid the premiums on his policies directly to North Star. Then, North Star made commission payments to Pu-thoff based on policies acquired by its agents. Puthoff then paid Henkel.

[¶ 6.] On April 10, 2000, Rasmussen completed an application for boat insurance seeking liability coverage for the Crownline in the amount of $500,000. The application completed by Rasmussen and signed by Henkel correctly stated the horsepower of the Crownline as 300. Rasmussen does not recall whether, at this time, he specifically requested that Henkel obtain both liability and umbrella coverage on the Crownline. Henkel admits to knowing that he wanted both coverages. Although Henkel obtained underlying liability coverage on the Crownline from Auto-Owners, she did not specifically obtain umbrella coverage by either adding the Crownline to the umbrella policy currently in place with North Star or by procuring separate umbrella coverage from one of the other insurance companies for which she was authorized to solicit insurance.

[¶ 7.] North Star routinely submitted personal umbrella renewal questionnaires to agents and insureds who currently possessed umbrella coverage with it. On January 10, 2001, both Henkel and Rasmussen signed the personal umbrella renewal questionnaire issued by North Star concerning Rasmussen’s policy. In that renewal questionnaire, immediately above their signatures, was a list of the underlying policies covered by the North Star umbrella policy currently in effect. That list did not include the underlying policy from Auto-Owners on the Crownline. Rather, it contained only the home and auto underlying policies.

[¶ 8.] On August 12, 2001, Rasmussen and his son, Keith, were involved in a boating accident with the Crownline. When Rasmussen reported the accident to Henkel, she informed him that the Crown-line had not been added to the North Star umbrella policy, so there was no coverage under that policy. However, Henkel later sent a letter to North Star questioning why the Crownline was not added to Rasmussen’s umbrella policy. This was the first time North Star was aware that Rasmussen owned the Crownline.

[¶ 9.] On September 28, 2001, Henkel requested that the Crownline be added to the North Star umbrella policy. Although aware of the August 12, 2001, accident at this time, she did not so inform North Star. Also, she misinformed North Star of the size of the Crownline’s motor by incorrectly stating that it had a 135 horsepower inboard/outboard motor rather than a 300 horsepower motor. Based upon the information provided by Henkel, North Star agreed to provide umbrella coverage on the boat effective October 4, 2001. It billed Rasmussen for the full annual premium of $25 for this added coverage.

[¶ 10.] As a result of the August 12, 2001, accident, Rasmussen’s son, Keith, suffered severe injui'ies and filed suit against his father, alleging that he negligently operated the Crownline at the time of the accident. The damages sought exceeded the policy limits of Rasmussen’s underlying insurance with Auto-Owners; therefore, Rasmussen sought coverage under his North Star umbrella policy.

[¶ 11.] North Star denied coverage, claiming the watercraft exclusion in the umbrella policy precluded coverage, because the underlying Auto-Owners policy on the Crownline was not added to the declarations page in the umbrella policy. North Star filed an action seeking declaratory relief. Both parties filed motions for summary judgment.

[¶ 12.] The trial court granted North Star’s motion for summary judgment. The court concluded there was no coverage on the Crownline under the umbrella policy in effect at the time of the accident and that Henkel was Rasmussen’s agent rather than North Star’s; therefore, any negligence or fault of Henkel in procuring umbrella coverage on the Crownline was not imputed to North Star.

[¶ 13.] Rasmussen appeals, raising two issues:

1. Whether the North Star umbrella policy provides coverage for the accident on August 12, 2001.
2. Whether Henkel was North Star’s agent for purposes of imputing her negligence to North Star.

STANDARD OF REVIEW

[¶ 14.] Our standard of review for summary judgment is well established: In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we determine whether the moving party has demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. When reviewing a grant of summary judgment, we must undertake an independent review of the record. The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Rumpza v. Donalar Enterprises, Inc., 1998 SD 79, ¶ 9, 581 N.W.2d 517, 520 (internal citations and quotations omitted).

ANALYSIS AND DECISION

[¶ 15.] 1. Whether the North Star umbrella policy provides coverage for the accident on August 12, 2001.

[¶ 16.] Rasmussen argues that North Star effectively backdated umbrella coverage on the Crownline to the beginning of the policy period (February 2001) when, in October 2001, it charged Rasmussen the full $25 annual premium. North Star, however, claims that Rasmussen was charged the full annual premium for four months of coverage according to North Star’s standard billing policies.

[¶ 17.] According to North Star’s billing policies, if a new risk is added to an umbrella policy that is already in place within ten months after a renewal, a flat rate is charged and the premium is not prorated. However, if the new risk is added within the two-month period before the umbrella policy is up for renewal, there is no premium charged for the added risk. The existing umbrella policy was renewed on February 6, 2001 and would not be up for renewal until February 6, 2002. Rasmussen sought to add the Crownline to the existing policy on October 4, 2001. Because this was within ten months of the renewal date of February 6, 2001, North Star charged Rasmussen the full $25 premium, despite the fact that only four months of coverage would be provided.

[¶ 18.] Rasmussen claims that by accepting his $25 premium, North Star voluntarily backdated coverage to February 6, 2001, and thus assumed coverage for any obligation from the accident occurring on August 12, 2001. Rasmussen relies on Trefethen v. New Hampshire Ins. Group as authority supporting his argument for retroactive application. 138 N.H. 710, 645 A.2d 72, 75 (1994). However, in Trefethen, the agent specifically requested “comprehensive general liability coverage retroactive to October 30, 1987,” a date prior to the accident, and the insurance company voluntarily agreed to provide retroactive coverage. Id. at 73. Thus, the Trefethen court concluded there was “no reason effect should not be given to [the insurance company’s] voluntary backdating of comprehensive coverage.” Id. at 75.

[¶ 19.] In this case, Henkel never requested and North Star never agreed to provide retroactive coverage. According to the general rule, “an insurer is liable for a loss under a backdated policy only when the loss occurs between the time the policy became effective and the time the policy is issued, and both the insured and the insurer are ignorant of the loss when the policy is issued.” Dodds v. Hanover Ins. Co., 317 Ark. 563, 880 S.W.2d 311, 314 (1994) (citations omitted). Further, “if the insured knows of the loss at the time the insurance is effected but the underwriters are ignorant of the loss, the insurer is not liable.” Id.

[¶ 20.] Here, both Rasmussen and Henkel knew of the accident when North Star allegedly provided coverage; however, neither informed North Star. Under these facts, we conclude that North Star did not voluntarily backdate coverage to February 1, 2001, by accepting Rasmussen’s $25 premium on October 4, 2001.

[¶ 21.] Rasmussen also contends that the watercraft exclusion in the umbrella policy is ambiguous, thus it does not bar coverage on the boat. North Star’s umbrella policy provides:

We do not cover:
2. The ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of any ...
(a) motorcycle;
(b) “recreational vehicle”;
(c) watercraft; or
(d) “automobile.”

However, the umbrella policy further provides that “[t]his exclusion does not apply to a vehicle covered by ‘underlying insurance.’ ” The definition of “underlying insurance” provided in the umbrella policy states in relevant part:

16. ‘Underlying Insurance’ means the liability insurance coverage provided under policies shown in the Declarations for the ‘limits’ and periods indicated in those policies. With respect to the policies shown in the Declarations, the ‘limits’ shall be conclusively deemed to be the minimum applicable policy ‘limits.’ Underlying Insurance includes any policies issued to replace those policies during the policy period of this insurance.

On the date of the accident, the schedule of underlying insurance on the declarations page of the umbrella policy did not include the underlying insurance issued by Auto-Owners on the Crownline.

[¶ 22.] Rasmussen argues that this exclusion is ambiguous as to whether the underlying insurance has to be listed in the declarations within the umbrella policy or in the declarations within the underlying policy. Other courts that have addressed similar policy language have determined that the exclusion is not ambiguous as it clearly requires the underlying policy be listed in the umbrella policy declarations. See Evins v. Louisiana Farm Bureau Mut. Ins. Co., 907 So.2d 733, 736 (La.App.2005); Am. Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 874 (Ala.2006).

[1123.] In Evins, the umbrella policy stated in relevant part, “[e]xcept to the extent that coverage is available to the insured in the underlying policies as stated in the schedule of underlying insurance, this policy does not apply....” 907 So.2d at 735. However, the insured’s policy that provided underlying coverage for the automobile in dispute was not listed in the schedule of underlying insurance within the umbrella policy. Id. at 736. Thus, the Evins court concluded that “since the umbrella policy only provides coverage for damages sustained in excess of the policies listed on the schedule of underlying insurance, and the [underlying] policy is not listed on the schedule of underlying insurance, there is no coverage under the umbrella policy for the damages sustained ....” Id. Finally, the court concluded there was no reasonable interpretation of the umbrella policy under which coverage could be afforded. Id.

[¶ 24.] Similarly, in American Resources Insurance Co., the umbrella policy contained language prohibiting coverage unless coverage was provided in “underlying insurance.” 939 So.2d at 871. “The definitions section of the umbrella policy definefd] ‘underlying insurance’ as ‘the coverage(s) afforded under insurance policies designated in Item 7 of the Declarations and any renewals or replacements of those policies.’ ” Id. The applicable underlying insurance policy was not listed within the “Declarations” in the umbrella policy. Id. In denying coverage, the Alabama Supreme Court concluded:

[F]or the umbrella policy to apply to the claims ..., the umbrella endorsement unambiguously required H & H Stephens (1) to have had a separate policy on the automobile Gilmore was driving at the time of the accident, and (2) to have had that separate policy listed in Item 7 of the declarations section of the umbrella policy. H & H Stephens complied with the first condition; the automobile driven by Gilmore was covered by the Canal policy. But because the Canal policy is not designated in Item 7 of the declarations section of the umbrella policy, H & H Stephens did not satisfy the second condition.

Id. at 874-875 (emphasis added).

[¶ 25.] Rasmussen hinges his argument on the deposition testimony of Rose Wis-dorf, a North Star assistant commercial casualty underwriter. Wisdorf testified as follows:

Q: And if you look at page 2, under the definition section, number 16, that defines underlying insurance, does it not?
A: Yes.
Q: And it means liability insurance coverage provided under policies shown in the declarations for the limits and periods indicated in those policies, right?
A: That’s what it says, yes.
Q: Okay. The declarations, in that sentence where the word ‘declarations’ is used, is that the declaration page of the North Star policy or the declaration page of the underlying policy?
A: I don’t know.

Rasmussen claims this testimony demonstrates that the exclusion is ambiguous.

[¶ 26.] Although Rasmussen seeks to create an ambiguity by the deposition testimony of Wisdorf, the issue of whether a contract is ambiguous is a question of law. Ziegler Furniture & Funeral Home, Inc. v. Cicmanec, 2006 SD 6, 1114, 709 N.W.2d 850, 354 (citation omitted). Thus, “[t]his Court need only look to the language that the parties used in the contract to determine their intention.” Id. ¶ 16, 709 N.W.2d at 355 (citation omitted). “[I]f the contract is clear and unambiguous, its interpretation is for the court, and not for the parties, even though the parties by their acts may have evidenced a construction differing from that evidenced by the written instrument.” Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 21:7 (3d ed 1996); see also, Vega v. Shelter Mut. Ins. Co., 162 S.W.3d 144, 150 (Mo.App.2005).

[¶ 27.] Rasmussen further asserts that “ ‘[a]n insurer ... may be estopped in reference to the meaning of a particular term in one of its contracts by its own interpretation of that term.’ ” Donalar Enterprises, Inc., 1998 SD 79, ¶ 14, 581 N.W.2d at 521 (quoting Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 21:8 (3d ed 1996)). However, the cases supporting this principle differ in great respects from the case before us. For example, in Donalar Enterprises, Inc., the president of the insurance company testified to the meaning of a provision that was clearly ambiguous, for there was no reference in the policy to the meaning of the provision. Id. Thus, his testimony controlled the meaning of the term. Id.

[¶ 28.] Also, in American Republic Life Ins. Co. v. Flynn, the case cited in Couch on Insurance, the vice president of the insurance company wrote a letter to the insured giving the company’s interpretation of a rider on the insured’s policy. 218 Ark. 825, 238 S.W.2d 937, 938 (1951). Here, an underwriting assistant simply answered, “I don’t know” to a question in her deposition concerning the meaning of policy language. She did not offer her interpretation of a specific term like the previous cases, and she is not in a position of president or vice president of the company. Thus, North Star is not estopped by the testimony of Wisdorf.

[¶29.] Were we to read the policies’ terms and definitions as Rasmussen suggests, we would be inappropriately providing the policies with a “strained and unusual meaning.” See Nat’l Sun Indus., Inc. v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶ 19, 596 N.W.2d 45, 49 (citations omitted). When the umbrella policy is read as a whole, it would be an absurd interpretation to hold “Declarations” to mean the declaration page on any underlying insurance policy the insured may own. That interpretation would render the “Declarations” in the umbrella policy meaningless, because the declaration pages in the underlying policies of the insured would control which losses were covered. In effect, the umbrella insurance provider would not be aware of the underlying insurance policies for which it was providing excess coverage.

[¶ 30.] Therefore, we conclude that the North Star watercraft exclusion is unambiguous. The umbrella policy clearly required that the underlying policies covered by the umbrella policy be listed in the “Declarations” within the umbrella policy itself. Because Rasmussen’s underlying insurance policy with Auto-Owners covering the Crownline was not listed in the “Declarations,” it is not covered by the umbrella policy.

[¶ 31.] 2. Whether Henkel was North Star’s agent for purposes of imputing her negligence to North Star.

[¶ 32.] Rasmussen claims that if the umbrella policy does not provide coverage for the Crownline, North Star is nevertheless responsible for providing coverage for the accident, submitting that Henkel was North Star’s agent. He thus argues that any negligence, fault or knowledge of Henkel in procuring umbrella coverage is imputed to North Star. North Star asserts that Henkel is the agent of Rasmussen rather than North Star.

[¶ 33.] We examine this issue under both statutory and general agency law. First, we review the applicable statutes concerning agency, and the trial court’s interpretation of those statutes. Rasmussen argues that SDCL 58-30-142 and 58-30-176, which became effective on July 1, 2001, apply because they were enacted pri- or to the date of the accident, and they apply retroactively. North Star, on the other hand, claims SDCL 58-1-2 applies because it was in effect when Henkel failed to procure the umbrella policy in 2000. Because Rasmussen claims North Star is responsible for Henkel’s failure to procure umbrella coverage when he reported the purchase of the boat in April 2000, North Star argues that the statute in effect at that time applies because that was the time of the claimed negligent act.

[¶ 34.] SDCL 58-1-2(1) (repealed 2001) defined agent as “any individual, firm, or corporation licensed by the director and if authorized by an insurer to solicit, negotiate, issue, countersign, and effectuate insurance contracts.” It defined broker as “any person, partnership, association, or corporation, which acts or aids for or on behalf of the assured in any manner, with or without compensation, in the solicitation or negotiation of policies or contracts for insurance covering property or risks in this state.” SDCL 58-1-2(4) (repealed 2001).

[If 35.] However, in 2001, by a statute which went into effect six weeks before the boating accident, the legislature repealed the above definitions and enacted a new statute that defines “[a]gent of the insurer” as “any insurance producer who is compensated directly or indirectly by an insurer and sells, solicits, or negotiates any product of that insurer” and “[a]gent of insured” as “any insurance producer or person who secures compensation from an insured or insurance customer only and receives no compensation directly or indirectly from an insurer for a transaction with that insured or insurance customer.” SDCL 58-30-142(l)(2). This statute is not located within the general definitions section of the Insurance Title as were the previous definitions. Rather, it is placed within the section concerning insurance producers and applies to “ft]erms used in §§ 58-30-141 to 58-30-195, inclusive.” Id.

[¶36.] Because the issue is whether Henkel’s claimed negligence in failing to procure insurance is imputed to North Star, we must determine whether Henkel was acting as North Star’s insurance agent at the time she failed to procure insurance. Thus, we must apply the law in effect at that time. We therefore hold that SDCL 58-30-142 and 58-30-176 do not control.

[¶ 37.] Rasmussen alternatively argues that SDCL 58-30-176 establishes that the definitions within SDCL 58-30-142 apply retroactively. SDCL 58-30-176 provides:

To appoint an insurance producer or business entity as its agent, the appointing insurer shall file, in a format approved by the director, a notice of appointment within fifteen days from the date the agency contract is executed or the first insurance application is submitted. An insurer may also elect to appoint an insurance producer to all or some insurers within the insurer’s holding company system or group by the filing of a single appointment request. The insurer is responsible for the acts of its representatives and insurance producers, including those acts where the insurance producer has solicited, sold, or negotiated insurance on behalf of that insurer prior to the date of appointment.

(Emphasis added). Rasmussen contends that the language “prior to the date of appointment” implies that the legislature intended these statutes to apply retroactively. We disagree.

[¶ 38.] According to SDCL 2-14-21, “[n]o part of the code ... shall be construed as retroactive unless such intention plainly appears.” Here, SDCL 58-30-176 provides that an insurer is responsible for the acts of its “insurance producers” even before appointment is established according to its terms. The statute does not imply that it and other statutes in the same section are to apply retroactively. Therefore, without an intention of retroactive application plainly appearing in the statutes or elsewhere, we decline to apply SDCL 58-30-142 retroactively.

[¶ 39.] Even assuming these statutes do control and assuming Henkel would be considered an agent of North Star under SDCL 25-30-142, “[statutes regulating licensing and defining agents, brokers and solicitors, are not intended to change or to exclude the general laws of agency.” Boyter v. Blazer Const. Co., 505 So.2d 854, 860 (La.App.1987) (citing finer v. Aetna Life Ins. Co., 291 So.2d 774, 777 (La.1974)); see also, Vina v. Jefferson Ins. Co. of New York, 761 P.2d 581, 585 (Utah App.1988) (“insurance code’s purpose is ‘primarily for the purpose of regulating insurance companies, agents, brokers, solicitors and adjusters’ and does not supplant ordinary legal principles of agency”) (quoting Farrington v. Granite State Fire Ins. Co., 120 Utah 109, 232 P.2d 754, 756 (1951)); Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 45:2 (3d ed 1996); Damon’s Missouri, Inc. v. Davis, 63 Ohio St.3d 605, 590 N.E.2d 254, 258 (1992).

[¶ 40.] By the statute’s own limitation, definitions supplied in SDCL 58-30-142 apply to “terms used in §§ 58-30-141 to 58-30-195, inclusive.” This restricting language implies that the definitions provided were not to be construed to replace general laws of agency. Thus, definitions in the code should not, by themselves, resolve the agency question.

[¶ 41.] Rasmussen also claims that whatever statutory scheme is applied is irrelevant because once the umbrella policy was issued to him in 1991, Henkel was North Star’s agent for purposes of servicing that policy under both statutes. However, this Court has previously held that “a new policy is formed with respect to [] added property when the insured first procures insurance on real property not covered under a previous policy between the insured and the insurance company.” Donalar Enterprises, Inc., 1998 SD 79, ¶ 37, 581 N.W.2d at 526.

[¶42.] Here, the Crownline was not covered under the existing umbrella policy; therefore, there was no existing policy on the boat that Henkel failed to service. Instead, any negligent act concerns procuring a new policy of insurance on the Crownline that was not already covered by the previous policy issued between Rasmussen and North Star. Even if Henkel was considered to be North Star’s agent for purposes of the umbrella policy issued in 1991, that policy did not insure the Crownline which is the subject of this litigation. Thus, the issue presented to us is whether Henkel was North Star’s agent for purposes of procuring umbrella coverage on the Crownline, not whether she was North Star’s agent for purposes of servicing an existing policy.

[¶43.] This Court addressed a similar issue in 1894, noting that “respondent was engaged in the insurance business, as agent for numerous companies; but, as no particular company was mentioned as the one in which appellant’s property was to be insured, it is quite evident that no company is liable.... ” Lindsay v. Pettigrew, 5 S.D. 500, 59 N.W. 726, 727 (1894). In Lindsay, “[t]he money was paid, and the arrangement was consummated by which the insurance was to be procured, without any intimation as to the company in which the same was to be placed.... ” Id. The Court held that the principal-agent relationship was between the insured and the agent when the agent took the insured’s money under an express agreement to procure insurance and failed to secure the same or make an effort in that direction. Id.

[¶ 44.] In another case, this Court held that insurance solicitors held “the position of brokers or third parties participating in the negotiation of insurance” when they had neither express nor ostensible authority to procure insurance with the insurer. Fromherz v. Yankton Fire Ins. Co., 7 S.D. 187, 63 N.W. 784, 785 (1895). In Fromherz, the insured instigated the application and gave the soliciting agent an order to get insurance, agreeing to accept and pay for it if the policies and companies were satisfactory. Id. The insured contemplated the procuring of insurance in any company or companies whose policy would satisfy and be acceptable to insured. Id. The Fromherz Court held that although the soliciting agents promised to procure insurance, they did not promise for the insurer, for they had neither express nor ostensible authority to do so. Id. According to the Court, the insurer only became related to and a party to the transaction when it accepted the risk. Id.

[¶ 45.] This Court has also stated that as a “general rule[,][] if the insured authorizes an agent not only to insure but to keep the property insured, with power to select the insurer, and the agent then places the insurance in a company not represented by him, he is the agent of the insured.... ” Flanagan v. Sunshine Mut. Ins. Co., 73 S.D. 256, 258, 41 N.W.2d 761, 762 (1950) (citations omitted); see also Gen. Acc. Ins. Co. of Am. v. Am. Nat’l Fireproofing, Inc., 716 A.2d 751, 756 (R.I.1998) (“in instances in which an insurance agent represents several companies and has the freedom to choose the company with which he would place an insurance policy, the individual [is] the agent of the insured and not the insurer”) (citation omitted); Electro Battery Mfg. Co. v. Commercial Union Ins. Co., 762 F.Supp. 844, 848 (E.D.Mo.1991); Damon’s Missouri, Inc., 590 N.E.2d at 258-59.

[¶ 46.] Further,

[t]he broker ... may be the agent of the insurer for a certain purpose and of the insured for another purpose. For example, the broker acts for the insured for the purpose of making the application and procuring the policy, and for the insurer for the purpose of collecting and remitting the premiums and delivering the policy.

Electro Battery Mfg. Co., 762 F.Supp. at 848 (citation omitted). See also Damon’s Missouri, Inc., 590 N.E.2d at 260; Travelers Indem. Co. v. Nat’l Indem. Co., 292 F.2d 214, 220 (8thCir.1961).

[¶ 47.] “[W]hether an insurance broker is the agent of the insurer or of the insured depends on the facts of the particular case.” Electro Battery Mfg. Co., 762 F.Supp. at 848 (citing Schimmel Fur Co. v. Am. Indem. Co., 440 S.W.2d 932, 938 (Mo.1969)). Thus, the determination of whether a person is an agent would typically be a question for a fact finder. See Rumpza v. Larsen, 1996 SD 87, ¶ 24, 551 N.W.2d 810, 815. However, in this case, Henkel’s capacity is a matter of law because the relevant facts are not in dispute. See Damon’s Missouri, Inc., 590 N.E.2d at 260; Dodds, 880 S.W.2d at 313 (citations omitted).

[¶ 48.] It is undisputed that Henkel was not an exclusive agent for North Star. The evidence is uncontradicted that Henkel solicited policies of insurance from several other insurance companies. In fact, she had half a dozen insurance companies with which she could have acquired umbrella coverage and even had underlying coverage on the Crownline with another insurance company.

[¶ 49.] Further, it was stipulated that when Rasmussen contacted Henkel to obtain insurance coverage on the boat, he expressed no preference with regard to any specific insurance company, specific type of insurance, i.e., liability or umbrella, or amount of coverage. He merely contacted and informed her that he had purchased the Crownline. He relied upon her as his agent, as he had done numerous times in the past, to examine all possible sources of coverage and to procure insurance. Thus, Henkel was left to negotiate with various insurance companies and find the best deal. She was not restricted to offer a North Star policy at any time but could have acquired an umbrella policy with any of the six different companies with which she dealt.

[¶ 50.] Furthermore and importantly, Henkel did not have actual authority to bind North Star to an umbrella policy. Rasmussen knew that Henkel did not have authority to bind North Star, because it had rejected a policy proposed by Henkel for Rasmussen on a prior occasion. Rasmussen also had worked with Henkel in another agency business and was a life insurance agent himself. Thus, he understood the limits of her agency status.

[¶ 51.] On these undisputed facts, we conclude that Henkel was Rasmussen’s agent for purposes of procuring insurance. Thus, any negligence in doing so is not imputed to North Star.

[¶ 52.] Affirmed.

[¶ 53.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

[¶ 54.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . Rasmussen testified that he and Henkel were good friends; they had worked together in his insurance business, the Rasmussen Agency, in the past; and Henkel had been his agent since the mid 1980s. When they worked together, Rasmussen sold life insurance and Henkel sold property and casualty insurance.

      . At one time, North Star denied an application for insurance submitted by Henkel on behalf of Rasmussen. She notified Rasmussen of this denial. Thus, he was aware that Henkel lacked the authority to bind North Star to a policy prior to its approval.

      . Notably, North Star's underwriting rules do not allow umbrella coverage for boats with motors in excess of 250 horsepower without first obtaining approval from its reinsurer.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    ADDISON INSURANCE COMPANY, Appellee, v. KNIGHT, HOPPE, KURNIK & KNIGHT, L.L.C., Appellant.
    No. 05-0306.
    Supreme Court of Iowa.
    June 29, 2007.

      James E. Shipman and Chad M. Von Kampen of Simmons, Perrine, Albright & Elwood, P.L.C., Cedar Rapids, and David M. Macksey and Victor J. Pioli of Johnson & Bell, Ltd., Chicago, IL, for appellant.
    Patrick M. Roby and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellee.
   STREIT, Justice.

An Illinois law firm regularly represented an Iowa insurance company’s insureds in Illinois. After the law firm allegedly botched an appeal to the Illinois Appellate Court, the Iowa company filed a legal malpractice claim against the law firm in Linn County, Iowa. In a preanswer motion, the law firm alleged lack of personal jurisdiction, improper venue, and forum non con-veniens. The district court denied the motion and we granted the law firm’s interlocutory appeal. We find the law firm had sufficient minimum contacts with the state of Iowa to warrant personal jurisdiction. The parties had a long-term business arrangement that caused the law firm to have substantial, ongoing communications with the insurance company in Iowa. We also find Linn County is proper for venue. The law firm failed to preserve for appeal the issue of forum non conve-niens. We affirm the district court.

I. Facts and Prior Proceedings

Addison Insurance Company is an Illinois corporation with its principal place of business in Cedar Rapids, Iowa. It is a subsidiary of United Fire & Casualty and is part of the United Fire Group. Addison was originally located in Lombard, Illinois. However, since mid-1998, Addison’s primary operations (including underwriting, marketing, claims handling, accounting, and support services) have been located in Cedar Rapids. Addison writes insurance in Iowa, Illinois, and several other states.

The law firm of Knight, Hoppe, Kurnik & Knight (“Knight”) is an Illinois limited liability company. Knight’s principal place of business is Des Plaines, Illinois.

In March 1993, Knight agreed to represent Addison’s insureds in Illinois cases. When Addison informed Knight it was relocating its primary operations to Cedar Rapids in 1998, Knight expressed a strong interest in continuing their relationship. Knight and Addison regularly communicated via telephone, facsimile and mail regarding the cases Knight was handling for Addison. Additionally, Pat Fanning, a partner at Knight, visited Addison in Cedar Rapids shortly after the company’s relocation. Fanning conducted a seminar on recent changes to Illinois law and discussed current cases with management. From 1998 through 2003, Addison paid Knight $823,871 for its services.

In September 2000, Knight on behalf of Addison, filed an action seeking a declaratory judgment against Knoedler Manufacturing, Inc. in Cook County, Illinois. Addison claimed Knoedler had a duty to indemnify Addison pursuant to a 1993 purchase agreement between Knoedler and one of Addison’s insureds. Addison sought $683,419 for its attorney fees, costs, and settlement paid in connection with a products liability claim. The district court granted Knoedler’s motion to dismiss. After Addison’s motion to reconsider was denied, Knight filed a notice of appeal on Addison’s behalf. However, Knight failed to either file the record or brief the issues with the Illinois Appellate Court. In June 2002, the Illinois Appellate Court granted Knoedler’s motion to dismiss for failure to timely file the record on appeal. John Pearson, a partner at Knight, traveled to Cedar Rapids to break the news to Addison.

Addison filed the present action against Knight and attorney James Meece for legal malpractice in Linn County, Iowa. Meece was the attorney at Knight assigned to the Knoedler action. Meece and Knight each filed a preanswer motion to dismiss for lack of personal jurisdiction, improper venue, and forum non conve-niens. The district court found Knight’s contacts with Iowa were sufficient to confer personal jurisdiction and that venue was proper in Linn County. It granted Meece’s motion to dismiss for lack of personal jurisdiction. Knight filed an application for interlocutory appeal which this court granted.

II. Standard of Review

“[W]e accept as true the allegations of the petition and the contents of uncontroverted affidavits. The plaintiff has the burden to sustain the requisite jurisdiction, but when he [or she] establishes a prima facie case the defendant has the burden of producing evidence to rebut that showing. The trial court’s findings of fact have the effect of a jury verdict and are subject to challenge only if not supported by substantial evidence in the record; we are not bound, however, by the trial court’s application of legal principles or its conclusions of law.”

Aquadrill, Inc. v. Envtl. Compliance Consulting Servs., Inc., 558 N.W.2d 391, 392 (Iowa 1997) (quoting Percival v. Bankers Trust Co., 450 N.W.2d 860, 861 (Iowa 1990)). Thus, we review the trial court’s ruling dismissing Knight’s motion to dismiss for errors at law. Iowa R.App. P. 6.4.

III. Merits

A. Personal Jurisdiction

Iowa Rule of Civil Procedure 1.306 “expands Iowa’s jurisdictional reach to the widest due process parameters allowed by the United States Constitution.” Hammond v. Fla. Asset Fin. Corp., 695 N.W.2d 1, 5 (Iowa 2005) (citing Hodges v. Hodges, 572 N.W.2d 549, 552 (Iowa 1997)). It provides in pertinent part:

Every corporation, individual, personal representative, partnership or association that shall have the necessary minimum contact with the state of Iowa shall be subject to the jurisdiction of the courts of this state, and the courts of this state shall hold such corporation, individual, personal representative, partnership or association amenable to suit in Iowa in every case not contrary to the provisions of the Constitution of the United States.

Iowa R. Civ. P. 1.306.

The Due Process Clause requires a nonresident to have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940)). In applying the standard, we consider five factors:

1. the quantity of the contacts;
2. the nature and quality of the contacts;
3. the source and connection of the cause of action with those contacts;
4. the interest of the forum state; and
5. the convenience of the parties.

Larsen v. Scholl, 296 N.W.2d 785, 788 (Iowa 1980). Of these factors, the first three are the most important. Aquadrill, 558 N.W.2d at 393.

“The minimum contacts test is meant to insure the fairness and reasonableness of requiring a nonresident to defend a lawsuit in the forum state.” Taylor v. Trans-Action Assoc., Inc., 509 N.W.2d 501, 504 (Iowa Ct.App.1993) (citing Int’l Shoe, 326 U.S. at 317, 66 S.Ct. at 158, 90 L.Ed. at 102). A defendant’s conduct relative to the forum state must be such that the defendant should “ ‘reasonably anticipate being haled into court there.’ ” Heslinga v. Bollman, 482 N.W.2d 921, 922 (Iowa 1992) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980)). This requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hager v. Doubletree, 440 N.W.2d 603, 607 (Iowa 1989), cert. denied, 493 U.S. 934, 110 S.Ct. 325, 107 L.Ed.2d 315 (1989) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283, 1298 (1958)). In determining whether minimum contacts exist, we focus on “ ‘the relationship among the defendant, the forum, and the litigation.’ ” Rush v. Savchuk, 444 U.S. 320, 327, 100 S.Ct. 571, 577, 62 L.Ed.2d 516, 524 (1980) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683, 698 (1977)).

There are two types of personal jurisdiction: specific jurisdiction and general jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404, 410-11 (1984). “ ‘Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant’s actions within the forum state, while general jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.’ ” Roquette Am., Inc. v. Gerber, 651 N.W.2d 896, 900 (Iowa Ct.App.2002) (quoting Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir.1994)). General jurisdiction requires the defendant’s contacts with the forum state to be “continuous and systematic.” Davenport Mach. & Foundry Co. v. Adolph Coors Co., 314 N.W.2d 432, 434 (Iowa 1982) (quoting Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418, 96 L.Ed. 485, 492 (1952)). Addison concedes Knight’s contacts are not sufficient for general jurisdic tion. Thus, we consider whether Knight’s contacts satisfy the due process requirements for specific jurisdiction.

In support of its contention personal jurisdiction does not exist, Knight notes it does not maintain an office or own any property in the state of Iowa. None of its attorneys is licensed to practice law in Iowa and none resides in Iowa. Knight claims its contacts with Iowa are simply too attenuated to satisfy the Due Process Clause. Moreover, it claims the alleged malpractice did not “arise out of or relate” to these contacts.

Addison, on the other hand, argues the regular communication between the two parties concerning Knight’s representation of Addison’s insureds over many years is sufficient for personal jurisdiction. It contends the underlying action arose out of or relates to these contacts.

We find the district court correctly held it had personal jurisdiction over Knight. The parties entered into a contract for services that lasted for ten years. The written guidelines for the attorneys to follow envisioned close supervision by Addison and constant communication between the two parties. For example, all settlement demands were required to be immediately communicated to Addison in writing. All offers to settle made on behalf of Addison’s insureds had to be approved by Addison. Legal research in excess of two hours required Addison’s preapproval. Prior to paying for any research time, a memorandum outlining the facts, law, and conclusion had to be submitted to Addison. All depositions, with the exception of the plaintiff, had to be discussed with Addison prior to scheduling. Within twenty-one days of any motion, deposition, or other development, a report had to be submitted to Addison including copies of any pleadings or other legal documents. During trials, daily verbal reports from Knight had to be made to Addison’s management. Needless to say, the Knight attorneys had extensive contact with Addison over the years.

While the original agreement was created in Illinois, the relationship between the parties continued unabated after Addison moved to Iowa. Since the move, Addison paid Knight approximately $800,000 for its services, which indicates Knight represented many of Addison’s insureds over the years. See Hager, 440 N.W.2d at 607 (finding Iowa had personal jurisdiction over nonresident defendants who entered into “a contractual relationship which lasted several years and involved frequent contacts by telephone and mailed correspondence, together with substantial oversight by the [plaintiffs] home office in Iowa”).

The relatively small number of personal visits by Knight representatives to Addison and United Fire’s headquarters in Cedar Rapids is not significant. See Cascade Lumber Co. v. Edward Rose Bldg. Co., 596 N.W.2d 90, 93 (Iowa 1999) (holding “multiple phone conversations” between an Iowa company and a nonresident company were sufficient to confer personal jurisdiction over the nonresident company); Bankers Trust Co. v. Fidata Trust Co. N.Y., 452 N.W.2d 411, 414 (Iowa 1990) (stating “[t]he nonresident corporation’s physical presence within the forum state is not essential to a finding of sufficient minimum contacts; contacts by telephone or mail may suffice”). In this modern era, business is typically conducted by telephone, facsimile, mail, and electronic mail. Hager, 440 N.W.2d at 607 (stating “ ‘it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted’ ” (quoting Burger King v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528, 543 (1985))). The nature and quality of Knight’s communications to Iowa were such that the law firm “should have reasonably anticipated being haled into state court.” Bankers Trust, 452 N.W.2d at 414 (citing World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501). Rather than the ministerial-type contacts which were found not to be sufficient for personal jurisdiction in Bankers Trust, Knight’s contacts with Iowa were high quality communications which assisted Addison in making critical decisions concerning litigation.

Moreover, we find the alleged malpractice arose out of or was related to these contacts. Knight acknowledges communicating with Addison in Cedar Rapids concerning the Knoedler case. Knight filed a notice of appeal on Addison’s behalf. It would have only done so at Addison’s direction. Neither party alleges Addison representatives traveled to Des Plaines to discuss the case. Thus, we must conclude the directive to file the appeal occurred with Addison representatives in Cedar Rapids and Knight representatives in Des Plaines.

Certainly Illinois has an interest in this lawsuit since it involves an Illinois resident and requires the application of Illinois law. Nevertheless, Iowa has a “ ‘manifest interest’ in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.” Aquadrill, 558 N.W.2d at 393. Thus, Iowa’s interest is at least equal to that of Illinois and Iowa provides as convenient a forum. Cascade Lumber, 596 N.W.2d at 93.

Because Knight voluntarily entered into a long-term relationship with Addison, which required substantial, ongoing connections with the company’s headquarters in Cedar Rapids, Iowa, we cannot say the “ ‘quality and nature’ ” of its relationship to Addison is “random,” “fortuitous,” or “attenuated.” Burger King, 471 U.S. at 480, 105 S.Ct. at 2186, 85 L.Ed.2d at 545-46 (quoting Hanson, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298). The Supreme Court in Burger King said:

Jurisdiction is proper ... where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State. Thus where the defendant “deliberately” has engaged in significant activities within a State, or has created “continuing obligations” between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.

Id. at 475-76, 105 S.Ct. at 2184, 85 L.Ed.2d at 542-43 (citations omitted). Under the circumstances of this case, we find it reasonable for Knight to be called to answer in an Iowa court. Id. at 480, 105 S.Ct. at 2186, 85 L.Ed.2d at 546.

B. Venue

Knight argues that even if the district court has personal jurisdiction over it, Linn County is not the proper venue. We find this argument has no merit.

Venue is statutory. Iowa Code section 616.18 (2003) provides:

Actions arising out of injuries to a person or damage to property may be brought in the county in which the defendant, or one of the defendants, is a resident or in the county in which the injury or damage is sustained.

Since Knight is not a resident of Iowa, the issue is whether Addison’s injury or damage was “sustained” in Linn County. Knight draws our attention to Johnson v. Nelson, 275 N.W.2d 427 (Iowa 1979). There, an Iowa resident brought a legal malpractice suit against an Iowa attorney for allowing his case to be dismissed for want of prosecution. Johnson, 275 N.W.2d at 428. We held the injury or damage to the plaintiffs lawsuit was sustained in Polk County, where the case was dismissed, rather than Clay County, where the plaintiff resided. Id. at 431.

We find Johnson not to be controlling because both parties were two Iowa residents. If we extended Johnson to the present case, we would be left with the odd result of personal jurisdiction over a defendant without a county in the state proper for venue. Such an absurd result is contrary to the legislature’s intent to subject nonresidents to the jurisdiction of this state’s courts to the outer limits of the Due Process Clause of the United States Constitution. State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999) (stating “we will not construe a statute in a way which creates an impractical or absurd result”). Thus, we find the damage alleged to have been suffered by Addison took place, at least in part, in Linn County.

C. Forum Non Conveniens

Alternatively, in its motion to dismiss, Knight asked the district court to transfer the case to Cook County, Illinois under the doctrine of forum non conve-niens. Although the district court acknowledged at the outset of its ruling that forum non conveniens was an issue to be decided, it did not rule on the matter and Knight did not file a motion to enlarge. Consequently, Addison argues the issue was not preserved for appeal. We have previously said “[w]hen a trial court fails to rule on an issue properly raised, the party raising the issue must file a motion asking the court for a ruling in order to preserve the issue for appeal.” Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995) (citing State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984)).

Knight argues error was preserved because the district court implicitly rejected forum non conveniens. We disagree. The only reference to convenience in the district court’s decision was in the context of its analysis of personal jurisdiction. The use of the word “convenience” in the jurisdictional analysis is insufficient to preserve error in regards to the doctrine of forum non conveniens. The court’s failure to rule on this issue precludes our review. Although the district court weighed “convenience of the parties” (the fifth factor of any personal jurisdiction analysis, see Larsen, 296 N.W.2d at 788), forum non conveniens requires a separate analysis which we will not do for the first time on appeal.

IV. Conclusion

We find Knight’s contacts with Iowa are sufficient to confer personal jurisdiction on the district court and Linn County is proper for venue. We affirm the district court.

AFFIRMED.

      . Fanning also traveled to Cedar Rapids in 1996 and gave a presentation to United Fire claims personnel. These visits to Cedar Rapids were part of Knight's efforts to strengthen the law firm's business relationships with Addison and United Fire.

      . In In re Marriage of Kimura, 471 N.W.2d 869 (Iowa 1991), we explained the proper analysis for forum non conveniens:
      [T]he moving party must show ... that the relative inconveniences are so unbalanced that jurisdiction should be declined on an equitable basis. Factors that bear on this determination include the following: the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of view of the premises, if view would be appropriate to the action; the enforceability of the judgment if one is obtained; and all other practical problems that make trial of a case easy, expeditious, and inexpensive. All of these factors pertain to the private interest of the litigant.
      Factors of public interest are also considered. They include the administrative difficulties for courts, trial in the forum that is the home of the state law which governs the case, and the burden of jury duty imposed on citizens of a forum with no relation to the litigation. Residency of the plaintiff is also considered but only as one of the many factors in the balancing process.

        In re Marriage of Kimura, 471 N.W.2d at 878-79 (citations omitted).


author: LARSON, Justice.

text:
    David RODDA, Appellant, v. VERMEER MANUFACTURING and EMC RISK SERVICES, INC., Appellees.
    No. 05-1371.
    Supreme Court of Iowa.
    June 29, 2007.

      Donald G. Beattie of Beattie Law Firm, P.C., Des Moines, for appellant.
    Dale A. Knoshaug and Lu Ann White of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellee Vermeer Manufacturing.
    Matthew G. Novak of Pickens, Barnes & Abernathy, Cedar Rapids, for appellee EMC Risk Services, Inc.
   LARSON, Justice.

David Rodda, the plaintiff in this case, sued his former employer, Vermeer Manufacturing, and its risk manager (collectively Vermeer) for alleged bad-faith failure to pay healing-period benefits under Iowa Code section 85.34(1) (2001). The district court rejected his claim, entering summary judgment against him, and he appealed. The court of appeals reversed, and we granted further review. We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

David Rodda was injured in his job with Vermeer on August 25, 2000. Rodda had been working assembling tractors at the time of his injury, and after his injury, he was placed on light duty in accordance with work restrictions imposed by his doctors. Rodda received appropriate healing-period benefits pursuant to Iowa Code section 85.34 until he was laid off on March 8, 2001, as part of a company-wide layoff. Rodda then received unemployment benefits from March 8 through July 1, 2001, pursuant to Iowa Code section 96.4(3). He did not, however, receive workers’ compensation healing-period benefits for this time period, and this is the primary basis of his bad-faith suit. Additionally, Rodda complains he did not receive healing-period benefits for one additional day, January 29, 2001. A deputy workers’ compensation commissioner ruled that Rodda was entitled to healing-period benefits for both periods of time, and this decision was affirmed on agency appeal.

On March 13, 2003, Rodda filed a petition at law, alleging Vermeer acted in bad faith in denying healing-period benefits for these time periods. The district court granted Vermeer’s motion for summary judgment, concluding the defendants acted reasonably as a matter of law in denying Rodda’s claim for healing-period benefits for the period between March 8 and July 1, 2001. As to the one-day healing-period issue, the court found that there would be no reasonable basis to deny Rodda’s claim for healing-period benefits for that day had Vermeer been aware of the claim, but there was no evidence it had been notified of the claim until the date of the hearing.

The court of appeals reversed, concluding Vermeer’s denial of Rodda’s healing-period benefits for the period of March 8 to July 1, 2001, was unreasonable as a matter of law. Further, it concluded a genuine issue of material fact existed as to whether Vermeer acted in bad faith in denying benefits for January 29, 2001.

On appeal, Vermeer contends the court of appeals erred in failing to apply the “fairly debatable” standard in determining whether Vermeer’s denial of Rodda’s healing-period benefits was reasonable. Vermeer also contends the court of appeals erred in finding a genuine issue of material fact existed as to whether Vermeer acted in bad faith in denying benefits for January 29, 2001.

II. Standard of Review.

Review of a district court’s ruling on a motion for summary judgment is for correction of errors at law. McIlravy v. North River Ins. Co., 653 N.W.2d 323, 327 (Iowa 2002). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The burden is on the moving party to establish there is no genuine issue of material fact, and the facts must be viewed in the light most favorable to the nonmoving party. Id. at 327-28. Review of a district court’s ruling on a motion for summary judgment in a bad-faith claim is the same as for other types of cases. Galbraith v. Allied Mut. Ins. Co., 698 N.W.2d 325, 328 (Iowa 2005). “[T]o succeed on such motions the [employer] must demonstrate that a reasonable trier of fact could not determine that the [employer] lacked a reasonable basis for denying or for delaying payment of the claim.” Id.

III. Discussion.

Iowa law recognizes a common-law cause of action against an insurer for bad-faith denial or delay of insurance benefits. Dolan v. Aid Ins. Co., 431 N.W.2d 790, 794 (Iowa 1988). We extended this common-law tort to workers’ compensation cases in Boylan v. American Motorists Insurance Co., 489 N.W.2d 742, 744 (Iowa 1992). Accord McIlravy, 653 N.W.2d at 329 (“Bad faith claims are applicable to workers’ compensation insurers because they hold the discretionary power to affect the statutory rights of workers, which clearly reflects their obligation to act in good faith in the exercise of this authority.”).

To establish a claim for first-party bad faith, in the analogous area of insurance law, we have said a plaintiff (the insured) must prove “ ‘(1) that the insurer had no reasonable basis for denying benefits under the policy[, and] (2) the insurer knew, or had reason to know, that its denial was without basis.’ ” McIlravy, 653 N.W.2d at 329 (quoting United Fire & Cas. Co. v. Shelly Funeral Home, Inc., 642 N.W.2d 648, 657 (Iowa 2002)). “The first element is an objective one; the second element is subjective.” Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 473 (Iowa 2005).

A reasonable basis for denying insurance benefits exists if the claim is “fairly debatable” as to either a matter of fact or law. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001); see also Covia v. Robinson, 507 N.W.2d 411, 416 (Iowa 1993). “A claim is ‘fairly debatable’ when it is open to dispute on any logical basis.” Bellville, 702 N.W.2d at 473. Whether a claim is “fairly debatable” can generally be determined by the court as a matter of law. Id. (quoting Gardner v. Hartford Ins. Accident & Indem. Co., 659 N.W.2d 198, 206 (Iowa 2003)) (“That is because ‘[w]here an objectively reasonable basis for denial of a claim actually exists, the insurer cannot be held liable for bad faith as a matter of law.’ ”). If the court determines that the defendant had no reasonable basis upon which to deny the employee’s benefits, it must then determine if the defendant knew, or should have known, that the basis for denying the employee’s claim was unreasonable.

Vermeer contends that, as a matter of law, it had a reasonable basis for denying Rodda’s healing-period benefits for the period between March 8 and July 1, 2001. This argument is premised on two theories — first, that Rodda’s certification that he could work, in order to obtain unemployment compensation, was the equivalent of an admission that he was no longer entitled to workers’ compensation benefits, and second, it was fairly debatable under Iowa Code section 96.5(5) whether Rodda could receive workers’ compensation and unemployment-compensation benefits at the same time.

A. Rodda’s certification. Vermeer contends it was “fairly debatable” that Rodda was unable to return to work similar to that which he was performing prior to his injury. The district court agreed with Vermeer and concluded that Rodda’s certification that he was able to work in order to receive unemployment benefits was a sufficient basis for the defendants to question whether Rodda was still entitled to healing-period benefits. Compare Iowa Code § 85.34(1) (an employee is entitled to healing-period benefits “until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury”) with id. § 96.4(3) (an employee is entitled to unemployment benefits when the employee “is able to work, is available for work, and is earnestly and actively seeking work”).

We do not agree with the district court’s ruling that Rodda’s certificate in his unemployment-compensation application, stating he was able to work, may reasonably be translated to mean that he was not entitled to healing-period benefits because he could perform the necessary work. This is especially so in this case, in which all inferences must be afforded to the party resisting summary judgment. A reasonable fact finder could conclude that Rodda’s certification that he could work at some job (perhaps some form of light work) did not mean that he could work at the job in which he had been employed prior to his injury — assembly of heavy tractors. It is undisputed that Rodda’s injury was work-related. It is also undisputed that Vermeer paid Rodda healing-period benefits for any time missed due to his work-related injury up until he was laid off on March 8, 2001, and began receipt of unemployment benefits. At no time did Vermeer receive medical information or information from Rodda himself indicating that Rodda was able to return to work similar to that which he was performing prior to his injury. See Sierra v. Employment Appeal Bd., 508 N.W.2d 719, 722 (Iowa 1993) (quoting Geiken v. Lutheran Home for the Aged Ass’n, 468 N.W.2d 223, 225-26 (Iowa 1991)) (“To be found able to work, ‘[a]n individual must be physically and mentally able to work in some gainful employment, not necessarily in the individual’s customary occupation, but which is engaged in by others as a means of livelihood.’ ”).

Rodda’s certification that he was able to work was not a reasonable basis for Vermeer’s denial of healing-period benefits. Therefore, we consider the alternative basis upon which Vermeer rests its denial, Iowa Code section 96.5(5).

B. The provisions of Iowa Code section 96.5(5). Vermeer argues it was also fairly debatable whether Rodda could simultaneously receive both workers’ compensation benefits and unemployment benefits. It points to Iowa Code section 96.5(5), which lists “causes for disqualification” for unemployment-compensation benefits. That section provides that

[a]n individual shall be disqualified for benefits ... [f|or any week with respect to which the individual is receiving or has received payment in the form of any of the following:
b. Compensation for temporary disability under the workers’ compensation law of any state or under a similar law of the United States.

Iowa Code section 96.5(5), on its face, appears to prevent simultaneous collection of workers’ compensation and unemployment-compensation benefits. In fact, several workers’ compensation opinions have said just that. See, e.g., Weatherwax v. Boesen, The Florist, LLC, 2005 WL 1489171 (Iowa Workers’ Comp. Comm’n 2005) (Garrison, Arb.); Darnell v. Experian Info. Solutions, 2004 WL 2601566 (Iowa Workers’ Comp. Comm’n 2004) (Christenson, Arb.); Nock v. GKN Armstrong Wheels, Inc., 2004 WL 2027605 (Iowa Workers’ Comp. Comm’n 2004) (Christenson, Arb.); Wagner v. Giese Sheet Metal Co., 2000 WL 33992944 (Iowa Workers’ Comp. Comm’n 2000) (Lantz, Arb.). Although three of these opinions were issued after the defendants denied Rodda’s healing-period benefits, they are relevant to whether the defendants’ position on the legal issue was “fairly debatable.” As noted by one authority:

Perhaps the most rehable method of establishing that the insurer’s legal position is reasonable is to show that some judge in the relevant jurisdiction has accepted it as correct. The favorable decision need not have been available to the insurer at the time it acted on the claim. After all, if an impartial judicial officer informed by adversarial presentation has agreed with the insurer’s position, it is hard to argue that the insurer could not reasonably have thought that position viable.

William T. Barker & Paul E.B. Glad, Use of Summary Judgment in Defense of Bad Faith Actions Involving First-Party Insurance, 30 Tort & Ins. L.J. 49, 83 (1994).

Despite this authority supporting Vermeer’s claim that it was fairly debatable whether Rodda was ineligible for both workers’ compensation and unemployment compensation, Rodda contends that the quoted language of section 96.5(5) must be read in context with a later provision suggesting that both workers’ compensation benefits and unemployment-compensation benefits may be received and that the two forms of benefits will merely be offset. He relies on this last unnumbered paragraph of subparagraph c of section 96.5(5):

Provided, that if the remuneration is less than the benefits which would otherwise be due under this chapter, the individual is entitled to receive for the week, if otherwise eligible, benefits reduced by the amount of the remuneration.

(Emphasis added.) We will refer to this as the “offset provision.”

Rodda argues that “remuneration” under this subparagraph includes workers’ compensation benefits. However, that is not at all clear from the wording of the statute itself. The offset provision is a part of subparagraph c, which excludes an individual’s recovery of unemployment benefits while receiving “[a] governmental pension, retirement or retired pay, annuity, or any other similar periodic payment” made under a similar plan. The offset language does not appear in subparagraph b, which applies to workers’ compensation benefits. There are no Iowa cases on point. However, the juxtaposition of the offset provision, as part of subparagraph c, but not subparagraph b, casts some doubt on the issue. This, reinforced by the opinions by the workers’ compensation commissioner’s office, makes the question of whether a worker can receive both forms of benefits at least fairly debatable. We need not decide that issue here; it is only required that we decide whether it is fairly debatable. We agree with the district court on that point. We also agree that, as a matter of law, Vermeer was not unreasonable in denying Rodda’s claim for one day’s benefits, formally raised for the first time at the hearing.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

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