author: AMUNDSON, Justice.

text:
    2000 SD 89
    In the Matter of the DISCIPLINE OF Robert G. MINES, Attorney at Law.
    No. 20128.
    Supreme Court of South Dakota.
    Argued Jan. 11, 2000.
    Decided July 12, 2000.

      Laurence J. Zastrow, Pierre, South Dakota, Attorney for Disciplinary Board of the State Bar.
    Robert G. Mines, Hot Springs, South Dakota, Pro Se Respondent.
   AMUNDSON, Justice.

[¶ 1.] This is a disciplinary proceeding against Robert G. Mines (Mines), a member of the State Bar of South Dakota. We disbar.

FACTS

[¶ 2.] Mines graduated from the University of Denver School of Law in 1971 and was admitted to practice law in this state on September 13, 1972. Mines practiced law in McIntosh, South Dakota until 1979 where he had purchased the law practice of Harvey Crow. Since 1979, Mines practiced as a solo practitioner in Hot Springs, South Dakota. Mines closed his law practice in May 1997 and now resides in San Francisco de los Viveros, Mexico.

[¶ 3.] Numerous complaints regarding Mines’ representation of clients in the practice of law were reported to the Disciplinary Board (Board) of the State Bar of South Dakota in 1997. After extensive investigations and hearings on April 3, 1997 and June 16, 1997, Board filed formal accusations against Mines accusing him of violating numerous Rules of Professional Conduct and statutes, and recommended the disbarment of Mines. On September 15, 1999, Circuit Judge Lee Anderson, acting as Referee (Referee), also recommended disbarment, concluding that Mines had committed numerous and repeated violations.

[¶ 4.] Mines employed the shotgun approach in objecting to the findings of fact entered by Referee after the hearing. These objections were yet another effort by Mines to put his own coloring on the picture painted by the testimony of the witnesses and the numerous exhibits. As we stated in Bressler v. Stanek, 10 S.D. 625, 626, 74 N.W. 1118 (1898), “the evidence, under any view of the case, is amply sufficient [to support the findings of fact of Referee], it would be a useless expenditure of time and space to collect [from the record] the voluminous testimony of the witnesses, for the purpose of an orderly presentment of the same for this opinion.” As such, we will briefly discuss the accusations against Mines and the rules and statutes that Mines was found to have violated.

Arthur Complaint

[¶ 5.] A disciplinary action was initiated against Mines because he deposited checks received from Ms. Carol Arthur (Arthur) into his law office account (which was overdrawn by $3,310.17) rather than depositing them into his client trust account. Referee found that Mines violated Rule 1.15(d)(1) “by failing to deposit client trust funds received as advances [from Arthur] for fees, costs and expenses in a client trust account.” Referee also found that Mines violated Rule 1.3 by failing to act with reasonable diligence and promptness in the preparation and filing of a complaint in the Arthur matter.

Mandel Complaint

[¶ 6.] Mines was accused by acting-U.S. Attorney Robert Mandel (Mandel) of backdating his reply brief in an action before the United States Eighth Circuit Court of Appeals. Mines had signed his Certificate of Service stating that the brief was mailed at Hot Springs on January 4, 1996. The brief, however, was actually mailed at the Smithwick, South Dakota Post Office just before midnight on January 5, 1996 and the proper postmark for the brief, without the alleged backdating, would have been January 6, 1996. Referee concluded that Mines violated Rule 1.1 based upon his lack of competence and Rule 1.3 by failing to act with reasonable diligence and promptness in matters entrusted to him. The conduct of Mines in this matter was also false and misleading.

Psychological Testing

[¶ 7.] Mines was accused of having his “legal assistant” Myra Chattic (Chattic) conduct psychological tests on his clients for the purpose of obtaining a psychological report from Dr. James Snow, a licensed psychologist in Hot Springs. In addition to assisting Mines in his legal practice, Chattic who was also working with Dr. James Snow to complete her field practicum in guidance and counseling. These reports were ultimately used and relied upon in personal injury cases against the federal-government and insurance companies without any disclosure to the opposing party that Mines’ employee-had conducted the psychological tests upon which the reports were based. Further, Mines was also accused of charging several of his personal injury clients for amounts above what Dr. Snow charged, paying Chattic for administering the tests, and failing to inform the client of this procedure. Referee found that the “course of conduct by Mines and his employee (Chat-tic) presents serious misrepresentations to both his clients, Dr. Snow, and opposing parties against whom claims were being made.”

Lemke Complaint

[¶ 8.] Mary Ellen Lemke (Lemke) accused Mines of a five year delay in filing a motion to add a party in Lemke’s action. Mines was also accused of failing to return Lemke’s repeated, phone calls requesting information on the status of her lawsuit. Referee concluded that Mines violated Rule 1.4 by failing to communicate with his clients and keep them reasonably informed about the status of a matter, failing to promptly comply with reasonable requests for information, and failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Disciplinary Board Investigation

[¶ 9.] Board made a formal accusation against Mines asserting that he repeatedly failed to promptly respond to Board’s requests for responses to the complaints, notices of hearings, and subpoenas in the complaints filed by Lora Michaels, Brad Calhoon, Mark Clinard, and Ruth Vaughn. Referee determined that Mines violated SDCL 16-19-54, -55 and -56 by failing to promptly respond to Board’s requests, that such conduct was a separate basis for discipline and that it constituted an aggravating circumstance which increased the severity of his appropriate discipline. See Discipline of Tidball, 503 N.W.2d 850 (S.D.1993); Discipline of Kirby, 336 N.W.2d 378, 380 (S.D.1983); Discipline of Kintz, 315 N.W.2d 328, 331 (S.D.1982).

Client Trust Account

[¶ 10.] Mines maintained a general client trust account at Community First State Bank in Hot Springs. This account was an interest-bearing account. Referee found that Mines’ trust account records were incomplete and confusing, and he failed to provide an accurate accounting of the interest earned on client funds and documentation of whether the interest earned was in fact paid to the client. In reviewing the trust account allegations against Mines, Referee found that Mines: (1) failed to maintain a trust account journal, rather, he considered a deposit book, checkbook, client ledger cards, cancelled checks and bank statements as a sufficient client trust journal; (2) did not withdraw his fees from the client trust account, but instead, left as much as $5,000 as a “buffer” for the “protection of his clients;” (3) did not maintain a separate ledger card that would reflect the balance of Mines’ funds in the trust account; (4) failed to keep any trust account records which would verify payment of interest earned on the trust account to the clients entitled to that interest; (5) kept no documentation as to the purpose of funds transferred from client trust accounts to his personal account; and (6) has failed to make proper and prompt distributions of funds.

[¶ 11.] Referee also found that Mines violated several rules including: (1) “Rule 1.15(d)(3) by depositing client funds in an

interest-bearing account which did not meet the requirements of an interest-bearing account set forth in rule 1.15(d)(3)(a)-(d)”; (2) “Rule 1.15(d)(3) by depositing client funds held for an extended period in a general client trust account”; (3) “Rule 1.15(d)(3) by depositing client funds which exceeded the definition of a nominal sum in a general client trust account”; (4) “Rule 1.15(a) by failing to disburse trust account funds representing his earned fees when they were determined, thus commingling his funds with client funds”; (5) “Rule 1.15 by preparing and delivering checks drawn on his trust account before the funds were deposited or available for withdrawal”; (6) “Rule 1.15(a) and (d)(2)(c) and SDCL 16-18-20.1 by failing to keep complete records of the trust account funds and preserving-those records for a period of five years after termination of the representation”; (7) “SDCL 16-18-20.2 by failing to-keep a separate trust account receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance containing: (a) [t]he identification of the client or matter for which the funds were received, disbursed, or transferred; (b) [t]he date on which all trust funds were received, disbursed, or transferred; (c) [t]he check number for all disbursements; and (d) [t]he reason, such as ‘settlement,’ ‘closing’ or ‘retainer,’ for which all trust funds were received, disbursed, or ‘transferred’ ”; (8) “SDCL 16-18-20.2 by failing to keep other documentary support for all disbursements and transfers from the trust account and Rule 1.15(d)(2)(c) by failing to render appropriate accounts to the client as it relates to Mines’ withdrawals from the client trust account for ‘fees and expenses’ ”; (9) “SDCL 16-18-20.2 by failing to keep a separate ledger card with all transactions for funds in the trust account which belonged to him.”

Advances to Clients

[¶ 12.] Board also accused Mines of making improper loans to his clients. Mines advanced monies to clients David Johnson, Nancy Botel, and Irene Tuttle by office checks and claimed that these monies represented “travel advances.” Mines failed to maintain any records to confirm that these payments were “travel advances” and not loans. Referee concluded that the advances to the clients were “clearly loans” and therefore, Mines violated Rule 1.8(e) by providing financial assistance to clients in connection with pending or contemplated litigation without proper documentation that the assistance met the exceptions provided by the Rule.

Aggravating Factors

[¶ 13.] Referee concluded that numerous aggravating factors exist. In 1978, Mines received an admonition from Board regarding the probate of an estate. In 1981, he received an admonition from Board for his conduct in the handling of a personal injury claim. He received another admonition from Board in 1981 for filing an attorney’s lien claiming a fee in another personal injury action. Mines received a private reprimand from Board in 1985 upon the complaint by U.S. District Judge Donald Porter in another personal injury case where Mines had his secretary sign the client’s name to a release of claim. In 1990, Mines received his fifth admonition from Board for failing to timely pay for requested court reporter services. He received yet another admonition from Board in 1991 for failing to timely pay for a requested medical report. Finally, in 1994, this Court imposed a public censure on Mines for making misrepresentations to the circuit court. See Discipline of Robert G. Mines, 523 N.W.2d 424 (S.D.1994).

STANDARD OF REVIEW

[¶ 14.] In disciplinary actions, we are not bound to accept the Referee’s recommendation, but it is “nevertheless entitled to our careful consideration.” See Discipline of Strange, 366 N.W.2d 495, 497 (S.D.1985) (citations omitted). In giving the referee’s findings careful consideration, we are “mindful of the fact that the referee saw and heard the witnesses with all the advantage that is gained from such personal contract.” Discipline of Walker, 254 N.W.2d 452, 454 (S.D.1977). We will not disturb the referee’s findings when they are supported by the evidence. Id. (citing In re Schmidt, 70 S.D. 161, 16 N.W.2d 41 (1944)). See also Discipline of Weisensee, 88 S.D. 544, 546, 224 N.W.2d 830, 831 (1975) (citation omitted) (noting that when the findings “are amply supported by the evidence ... such findings will not be disturbed by this [C]ourt”). Further, this Court makes the final determination for an attorney’s appropriate discipline. Discipline of Wehde, 517 N.W.2d 132, 133 (S.D.1994).

DECISION

[¶ 15.] It is well-settled that the “purpose of the disciplinary process [is] to protect the public, not to punish the lawyer.” Petition of Pier, 1997 SD 23, ¶ 8, 561 N.W.2d at 299 (citing Matter of Simpson, 467 N.W.2d 921, 921-22 (S.D.1991); Discipline of Stanton, 446 N.W.2d 33, 42 (S.D.1989); Strange, 366 N.W.2d at 497). The disciplinary options at this Court’s disposal are provided under SDCL 16-19-35 as: “public censure, placement on probationary status, suspension for up to three years and disbarment.” Discipline of Hopewell, 507 N.W.2d 911, 918 (S.D.1993).

[¶ 16.] In the present case, both Board and Referee have recommended the disbarment of Mines. Imposing disbarment on an attorney is “no trivial occurrence.” See Pier, 1997 SD 23, ¶ 8, 561 N.W.2d at 299. “ ‘Disbarment is warranted when it is clear that the protection of society requires such action or where the maintenance of respect for courts and judges or the respectability of the legal profession itself demands such action.’ ” Id. (quoting Discipline of Crabb, 416 N.W.2d 258, 259 (S.D.1987)). We must, however, decide each case “ ‘upon its own particular set of facts,’ properly balancing the aggravating and mitigating circumstances.” Wehde, 517 N.W.2d at 134 (quoting Discipline of Jeffries, 500 N.W.2d 220, 225-26 (S.D.1993) (citations omitted)).

[¶ 17.] In determining the appropriate sanction to impose, we review the totality of the attorney/client relationship and evaluate any aggravating or mitigating factors. See Discipline of Bihlmeyer, 515 N.W.2d 236, 239 (S.D.1994). The aggravating factors include:

(a) prior disciplinary offenses,
(b) dishonest or selfish motive,
(c) a pattern of misconduct,
(d) multiple offenses,
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency,
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process,
(g) refusal to acknowledge wrongful nature of conduct,
(h) vulnerability of victim,
(i) substantial experience in the practice of law, and
(j) indifference to making restitution.

Discipline of Claggett, 1996 SD 21, ¶ 16, 544 N.W.2d 878, 881 (citing ABA Standards for Imposing Lawyer Sanctions Rule 9.22). The mitigating factors include:

(a) absence of a prior disciplinary record,
(b) absence of a dishonest or selfish motive,
(c) personal or emotional problems,
(d) timely good faith effort to make restitution or to rectify consequences of misconduct,
(e) full and free disclosure to Disciplinary Board or cooperative attitude toward proceedings,
(f) inexperience in the practice of law,
(g) character or reputation,
(h) physical or mental disability or impairment,
(i) delay in disciplinary proceedings,
(j) interim rehabilitation,
(k) imposition of other penalties or sanctions,
(l) remorse, and
(m) remoteness of prior offenses.

Id. (citing ABA Standards Rule 9.32).

[¶ 18.] In determining the appropriate discipline, we consider: “ ‘whether the conduct involved dishonesty, deceit, fraud, or misrepresentation; whether the conduct is prejudicial to the administration of justice; whether the conduct adversely reflects upon the attorney’s integrity; competency or fitness to practice law; the seriousness of the misconduct by the attorney; and the likelihood of repeated instances of similar misconduct.’ ” Claggett, 1996 SD 21, ¶ 14, 544 N.W.2d at 880-81 (quoting Jeffries, 500 N.W.2d at 223 (citations omitted)). See also Matter of Tidball, 503 N.W.2d 850, 855-56 (S.D.1993) (noting that “[a]ppropriate discipline is determined upon a consideration of the seriousness of the misconduct by the attorney and the likelihood of repeated instances of similar misconduct”).

[¶ 19.] In Stanton, this Court was faced with what sanction to impose on an attorney. 446 N.W.2d at 34. Stanton was accused of several instances of misconduct ranging from ignorance of the law and unconscionable delays in cases to lying to the court and betrayal of client confidences. Id. at 36. We found that Stanton had failed to follow the statutory mandates for filing an inventory and appraisal in a probate matter, unreasonable inaction on another probate case for over three years, failure to timely file an application for fees and comply with discovery in bankruptcy court, failure to complete a dissolution of a real estate partnership resulting in financial harm to the client, permitted a client to sell assets in a Chapter 11 bankruptcy proceeding without court approval, payment for sheriffs fees to the county treasurer with an insufficient funds check, and allowing an estate to remain open for over ten years. Id. at 36-41. In finding the referee’s findings of fact and conclusions of law were well supported in the record and Stanton’s utter incomprehension that he did anything wrong, this Court imposed the sanction of disbarment. Id. at 43.

[¶ 20.] In Crabb, this Court was faced with the recommendation to disbar attorney Crabb. 416 N.W.2d at 258. Crabb was found to have committed several acts of gross neglect including: “handling client’s trust funds, failure to meet statute of limitations deadlines, untimely delay in getting out work, and failure to respond to grievance committee inquiries.” Id. We found that Crabb had failed to proceed expeditiously in numerous cases, failed to respond promptly and appropriately to Board inquiries, and failed to file and pay sales tax returns. Id. at 259-60. This Court ultimately found that disbarment was the appropriate sanction against Crabb, who had “consistently fail[ed] to give those clients timely service necessary to bring the cases to fruition.” Id. at 260.

[¶ 21.] We reiterate that this is not the first time Mines has come before this Court in a disciplinary matter. See Mines, 523 N.W.2d 424 (imposing a public sanction upon Mines). Mines was admitted to practice law in South Dakota in 1972. Since 1978, Mines has received several disciplines from the Board and a public censure by this Court in 1994. Since our public censure of Mines, all of the previously mentioned incidents for which Mines was accused of occurred.

[¶ 22.] In the present case, Mines alleges in his responses that he did not violate any rules other than leaving $2,000 and $5,000 in the client trust account, which he claims was cushion to protect the clients from an overdraft, and in maintaining his client trust account as an interest bearing account and not remitting the interest to the South Dakota Bar Foundation. Mines’ rationale for violation of the client trust account rules is quite unbelievable. Why would Mines have needed to worry about overdrafts if he was handling his accounts in a professional manner? Other than these two admissions, Mines does not acknowledge that he, personally, made any other mistakes in the maintenance of his client trust accounts, handling of cases, billing expenses, or disbursing settlement amounts to clients. We do not agree. A review of the record, as we have previously outlined, reveals substantial evidence exists in the record to support the Board’s and Referee’s findings and recommendation. Mines’ handling of his trust accounts and client’s earned interests barely falls short of theft and that is only because theft cannot be proved based upon Mines’ deplorable office practices. Mines’ maintenance of trust records was so incomplete and confusing that one would have to be a Houdini to interpret his records. Further, Mines’ preparation of the psychological reports through his legal assistant and the over-billing of his clients for those tests has a flavor of deceptive practices not only to the opposing parties, but also to his own clients.

[¶ 23.] In reviewing the record, Mines has failed to provide any evidence to substantiate his contentions. Instead, he asks this Court to “trust him.” It is difficult to trust Mines when he provided us nothing to justify his conduct. Therefore, the protection of society and the maintenance of respect for the courts, judges, and the legal profession, warrant Mines’ disbarment.

[¶ 24.] Therefore, we order: (1) Effective immediately, a judgment shall be entered disbarring Mines, and striking his name from the Clerk’s roll of attorneys; (2) Mines shall immediately comply with the provisions of SDCL 16-19-78 through -81 inclusive and return all files and documents to his clients; and (3) Mines shall pay all costs of this action under SDCL 16-19-70.2.

[¶ 25.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . South Dakota’s Rules of Professional Conduct are located in SDCL 16-18 Appendix.

      .Rule 1.15(d)(1) provides:
      (1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (a) Funds reasonably sufficient to pay bank charges may be deposited therein.
      (b) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

      . Rule 1.3 states:
      A lawyer shall act with reasonable diligence and promptness in representing a client.

      . Rule 1.1 provides:
      A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

      . For example, in Mines’ representation of Buckly Denevan, he charged $600 for psychometric testing, but paid Dr. Snow .only $150. The' remaining $450 was paid to Chattic without any disclosure to the opposing party or Mines' client that Chattic would be compensated. Mines also ".charged” Irene Tuttle $1,200 for psychological testing by "Dr. Snow,” but paid Dr. Snow only $250. Further, Mines "charged” Gerald One Feather $1,341 for psychological literature-and assessment tools for brain injury, but no such materials were ever purchased.

      . Rule 1.4 states:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
      (c) If a lawyer does not have professional liability insurance with limits of at least $100,000, or if during the course of representation, the insurance policy lapses or is terminated, a lawyer shall promptly disclose to a client by including as a component of the lawyer's letterhead, using the following specific language, either that:
      (1)"This lawyer is not covered by professional liability insurance"; or
      (2) "This firm is not covered by professional liability insurance.”
      (d) The required disclosure in 1.4(c) shall be included in every written communication with a client.
      (e) This disclosure requirement does not apply to lawyers who are members of the following classes: SDCL 16-18-20.2(1), (3), (4) and full-time, in-house counsel or government lawyers; who do not represent clients outside their official capacity or in-house employment.

      .Under SDCL 16-19-54,
      It shall be the duty of every attorney to promptly and appropriately respond to any complaint or letter forwarded to him by any member of the disciplinary board. In the event he shall fail to do so, he may be subject to private reprimand by the disciplinary board, or, after hearing upon order to show cause, disciplined by the Supreme Court.
      SDCL 16-19-55 provides:
      In matters under investigation any member of the board or its counsel or the attorney general is authorized to issue a subpoena requiring any witness to attend at any place within the state where the witness is subpoenaed to appear and requiring such witness, to produce pertinent books, papers and documents, and to administer oaths and take testimony in regard to such matters. The willful failure on the part of any person to respond to the subpoena, or the willful refusal of any person to testify, shall constitute a contempt against the Supreme Court and may be punished accordingly.
      SDCL 16-19-56 provides:
      The records required by § 16-18-20.1 may be subpoenaed by the attorney general or any member of the disciplinary board or its counsel in connection with any disciplinary investigation.

      . Rule 1.15(d) provides:
      (d) Preserving Identity of Funds and Property of Client.
      (1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (a) Funds reasonably sufficient to pay bank charges may be deposited therein.
      (b) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      (2) A lawyer shall:
      (a) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (b) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (c) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate account-ings to his client regarding them.
      (d) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
      (3)A lawyer may elect to create and maintain an interest-bearing account for clients’ funds which are nominal in amount or to be held for a short period of time in compliance with the following provisions:
      (a) No earnings from such an account shall be made available to a lawyer or firm.
      (b) The account shall include all clients’ funds which are nominal in amount or to be held for a short period of time.
      (c) An interest-bearing trust account may be established with any bank authorized by federal or state law to do business in South Dakota and insured by the Federal Deposit Insurance Corporation. Funds in each interest-bearing trust account shall be subject to withdrawal upon request and without delay.
      (d) The rate of interest payable on any interest-bearing trust account shall not be less than the rate paid by the depository institution to regular, nonlawyer depositors unless reduced to offset bank administrative costs. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity mini-ma, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm on some or all of deposit funds so long as there is no impairment of the right to withdraw or transfer principal immediately.

      . Under Rule 1.15(a),
      (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

      . Under SDCL 16-18-20.1,
      Every attorney shall maintain complete records of the handling, maintenance and disposition of all funds, securities and other properties of a client at any time in his possession, from the time of receipt to the time of final distribution, and shall preserve such records for a period of five years after final distribution of such funds, securities or other properties or any portion thereof, and failure to keep such records shall be grounds for appropriate disciplinary proceedings.

      .SDCL 16-18-20.2 provides:
      The provisions of this rule apply to all members of the State Bar of South Dakota concerning trust funds received or disbursed by them in the course of their professional practice of law within the State of South Dakota. However, these provisions shall not apply to (1) full-time members of the judiciary, i.e., Supreme Court justices, circuit court judges and magistrate judges, (2) nonresident attorneys licensed to practice in South Dakota who comply with comparable trust accounting requirements in the state wherein they maintain their office, and (3) non-profit legal services organizations that file a copy of their annual independent audit with The State Bar, (4) nonresident attorneys licensed to practice in South Dakota who have not represented a South Dakota client during the reporting period, or (5) members who have been in an inactive status for the full reporting period.
      MINIMUM TRUST ACCOUNTING RECORDS
      The minimum trust accounting records which shall be maintained are:
      (1) A separate bank account or accounts and, if utilized, a separate savings and loan association account or accounts. Such accounts shall be located in South Dakota unless the client otherwise directs in writing. The account or accounts shall be in the name of the lawyer or law firm and clearly labeled and designated as a "trust account.”
      (2) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book, clearly identifying:
      (a) The 'date and source of all trust funds received; and
      (b) The client or matter for which the funds were received.
      (3) Original cancelled checks, or copies of both sides of the original checks produced through truncation or check imaging, or the equivalent, all of which must be numbered consecutively.

        (4) Other documentary support for all disbursements and transfers from the trust account.
      (5) A separate trust accounts receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance, and containing at least:
      (a) The identification of the client or matter for which the funds were received, disbursed, or transferred;
      (b) The date on which all trust funds were received, disbursed, or transferred;
      (c) The check number for all disbursements; and
      (d) The reason, such as ''settlement,” "closing" or "retainer,” for which all trust funds were received, disbursed, or transferred.
      (6) A separate file, ledger or computer file with an individual card, page or computer document for each client or matter, showing all individual receipts, disbursements, or transfers and any unexpended balance, and containing:
      (a) The identification of the client or matter for which trust funds were received, disbursed, or transferred;
      (b) The date on which all trust funds were received, disbursed, or transferred;
      (c) The check number of all disbursements; and
      (d) The reason, such as "settlement,” "closing” or "retainer,” for which all trust funds were received, disbursed, or transferred.
      (7) All bank or savings and loan association statements for all trust accounts.
      MINIMUM TRUST ACCOUNTING PROCEDURES
      The minimum trust accounting procedures which shall be followed by all attorneys practicing in South Dakota who receive or disburse trust money or property are:
      (1) The lawyer shall cause to be made monthly:
      (a) Reconciliations of all trust bank or savings and loan association accounts, disclosing the balance per bank, deposits in transit, outstanding checks identified by date and check number, and any other items necessary to reconcile the balance per bank with the balance per the checkbook and the cash receipts and disbursements journal; and
      (b) A comparison between the total of the reconciled balances of all trust accounts and the total of the trust ledger cards, pages, or computer documents, together with specific descriptions of any difference between the two totals and reasons therefor.
      (2) At least annually, a detailed listing identifying the balance of the unexpended trust money held for each client or matter.
      (3) The above reconciliations, comparisons, and listing shall be retained for at least six years.
      (4) The lawyer shall file with The State Bar of South Dakota a trust accounting certificate showing compliance with these rules annually, which certificate shall be1 filed annually between December 1 and January 31 on a form approved by the Disciplinary Board.

      . Under Rule 1.8(e)
      (e)A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
      (1) a lawyer may advance court costs and expenses of litigation, the repayment of which shall be the ultimate obligation of the client; and
      (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.


source: Caselaw Access Project

author: GILBERTSON, Justice.

license: Public Domain

text:
    2000 SD 91
    Jodee L. LIFFENGREN, Plaintiff and Appellant, v. Jeffrey L. BENDT, M.D., Defendant and Appellee.
    No. 21312.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided July 12, 2000.
    Raymond R. DeGeest, Rapid City, South Dakota, Attorney for plaintiff and appellant.
    Daniel F. Duffy of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Justice.

[¶ 1.] Plaintiff Jodee L. Liffengren (Lif-fengren) appeals the circuit court’s summary judgment to Defendant Jeffrey L. Bendt, M.D. ( Bendt) on the basis of the running of the statute of limitation pursuant to SDCL 15-2-14.1. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On September 28, 1994, in Rapid City, South Dakota, Liffengren underwent a laparoscopy by Bendt, a board-certified obstetrician and gynecologist for the removal of a cyst,on her left fallopian tube. Liffengren had a history of multiple ovarian cysts, which had required other surgical procedures, all performed by Bendt at his clinic. After the laparoscopy, Liffengren began experiencing persistent pain in her right lower abdomen. Bendt admitted her to Rapid City Regional Hospital on October 7, 1994 when she began experiencing “sudden, severe, and sharp pain” in her abdomen. • Bendt consulted Dr. A.R. Ya-mada, a physician specializing in 'urology, concerning the treatment of Liffengren.

[¶ 3.] Bendt performed complete blood work tests on Liffengren, as well as an IVP test, which involves the use of dye to determine if there is a leak in the bladder or ureter. The IVP test confirmed that Liffengren had a small pinhole puncture in her right ureter, which apparently allowed a small amount of , urine to leak into her peritoneal cavity. Yamada made the decision to place a stent, or small straw, in Liffengren’s ureter to heal the small pinhole. This procedure relieved her pain and she was discharged from the hospital on October 10, 1994. Liffengren’s discharge summary was completed by Yama-da.

' [¶ 4.] On October 17, 1994, Liffengren went to Bendt’s, clinic for the purpose of receiving a Depo Provera birth control shot. Bendt did not personally administer the shot to Liffengren. She had no other contact with Bendt or his office after October 17, 1994. Liffengren returned to Ya-mada’s office on November 11, 1994, for the removal of the stent, and continued to see him until January 19, 1995. Liffen-gren obtained the services of another gynecologist, Dr. Randell Bauman, in January of 1995.

[¶ 5.] On October 28, 1996, Liffengren served Bendt with a summons and complaint concerning her condition resulting from the laparoscopy, alleging medical malpractice. On November 7, 1996, Bendt moved for summary judgment on the basis that the two-year statute of limitation in SDCL 15-2-14.1 expired. ' Liffengren contested the motion, arguing the continuing treatment exception tolls the two-year statute of limitation and claiming it was not until January of 1995 that she retained the services of Bauman to replace Bendt. The circuit court ruled on January 28,1998 that there was a genuine issue of material fact as to the start of the running of the statute of limitation.

[¶ 6.] On September 16, 1999, Bendt renewed his motion for summary judgment on the basis there was no genuine issue of material fact as to the expiration of the statute of limitation, based on this Court’s “continuing treatment” decisions of Bruske v. Hille, 1997 SD 108, 567 N.W.2d 872, and Beckel v. Gerber, 1998 SD 48, 578 N.W.2d 574. The circuit court agreed.

[¶ 7.] Liffengren now appeals, raising the following issue for our consideration:

Whether the circuit court erred in granting summáry judgment to Bendt.

STANDARD OF REVIEW

[¶ 8.] Our standard of review for a circuit court’s grant of a motion for summary judgment was recently restated in Hart v. Miller:

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” SDCL 15 — 6—56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

2000 SD 53, ¶ 10, 609 N.W.2d 138, 142 (quoting Mattson v. Rachetto, 1999 SD 51, ¶ 8, 591 N.W.2d 814, 817 (quoting Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586)). Statute of limitation questions are generally to be resolved by a jury. Beckel v. Gerber, 1998 SD 48, ¶ 5, 578 N.W.2d 574, 576 (citing Schoenrock v. Tappe, 419 N.W.2d 197, 200 (S.D.1988)). “Summary judgment is proper on statute of limitation[ ] issues only when application of the law is in question, and not when there are remaining issues of material fact.” Id. (citing Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 113 (S.D.1990)).

ANALYSIS AND DECISION

[¶ 9.] Whether the circuit court erred in granting summary judgment to Bendt.

[¶ 10.] Liffengren claims the alleged malpractice occurred on September 28, 1994, the date Bendt performed the laparoscopy and purportedly punctured her ureter. Thus, pursuant to SDCL 15-2-14.1, the statute of limitation would have run by September 28,1996:

An action against á physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake or failing to cure, whether based upon contract or tort, can be commenced only within two years after -the alleged malpractice, error; mistake or failure to cure shall have occurred[.]

This statute of limitation is an “occurrence rule,” and it begins to run when the alleged negligent act occurs, rather than when it is discovered. Beckel, 1998 SD 48, ¶ 9, 578 N.W.2d at 576 (citing Schoenrock, 419 N.W.2d at 199; Alberts v. Giebink, 299 N.W.2d 454, 456 (S:D.1980)). Liffengren did not serve Bendt with a summons' and complaint until October 28, 1996. By this date, Liffengren’s cause of action was untimely and expired under SDCL 15-2-14.1. However, Liffengren claims the continuing treatment exception tolls the statute.

[¶ 11.-] Liffengren argues there is a genuine issue of material fact as to when the doctor/patient relationship with Bendt ended, thus, this issue should be decided by a jury. She claims that she continued to rely upon Bendt and upon his recommendation of Yamada’s services, and that her relationship with Bendt and Yamada did not end until she obtained the services of another gynecologist in January 1995. Essentially, Liffengren is attempting to bootstrap her November, 1994 and January 1995 visits, with Yamada to her prior treatment by Bendt.

[¶ 12.] Bendt responds that after Liffen-gren’s release from the hospital on October 10, 1994, he did not treat her again for any purpose related to her laparoscopy. At most, he claims the last time Liffengren had contact, with his office was for the Depo-Provera shot, which was unrelated to her laparoscopy. Thus, at the latest, the doctor/patient relationship between Bendt and Liffengren ended on October 17, 1994. For this reason, Bendt argues since Liffengren served her summons and complaint on October 28, 1996, the statute of limitation for filing medical malpractice claims had already run. We agree with Bendt.

[¶ 13.] This Court has recognized the “continuing treatment” rule or exception to toll the running of the statute of limitation in medical malpractice actions. See id. ¶ 10 (citing Wells v. Billars, 391 N.W.2d 668, 671 (S.D.1986); Bruske, 1997 SD 108, ¶ 15, 567 N.W.2d at 877; Bosse v. Quam, 537 N.W.2d 8, 10 (S.D.1995)). In Bruske, we stated:

In the area of medical malpractice ... this court has carved an exception to the statute of limitation[ ]. This exception prevents the statute of limitatio&s clock from ticking when the alleged harm is the result of a continuing tort. See [Wells, 391 N.W.2d 668]; [Alberts, 299 N.W.2d 454], In Wells, the court tolled the statute of limitation[ ] for torts arising out of a physician’s “continuing treatment” until the doctor-patient relationship ended. [Wells, 391 N.W.2d at 673.] The rationale behind this doctrine was to prevent the refusal to seek or administer health care due to pending litigation when treatment may be desperately needed. [Id. at 672.]

1997 SD 108, ¶ 15, 567 N.W.2d at 877 (citing Bosse, 537 N.W.2d at 10). There must be an “on-going, continuous, developing and dependent relationship” for the continuing treatment rule to toll the statute of limitation. Beckel, 1998 SD 48, ¶ 10, 578 N.W.2d at 576 (citing Bruske, 1997 SD 108, ¶ 15, 567 N.W.2d at 877 (citing Schoenrock, 419 N.W.2d at 201; Sander v. Geib, Elston, Frost Prof'l Ass’n, 506 N.W.2d 107, 114 (S.D.1993))).

[¶ 14.] For the purpose of her claim of alleged malpractice stemming from the laparoscopy, there is no question the doctor/patient relationship between Bendt and Liffengren ended on October 10, 1994. Continuous treatment for purposes of the exception must consist of treatment for the same or related illnesses or injuries. Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777, 781 (1962). The final single procedure performed by Bendt’s medical clinic was a birth control shot; not any sort of therapy concerning her laparoscopy. Consequently, this one visit “may not serve as a basis for applying the continuous treatment exception because [Liffengren] could have interrupted the services and switched physicians at any time without jeopardizing her health.” See Massie v. Crawford, 78 N.Y.2d 516, 577 N.Y.S.2d 223, 583 N.E.2d 935, 938 (1991) (concluding that a physician’s insertion of an IUD was for routine gynecological examinations and not therapy to correct her medical condition, thus the continuous treatment exception did not apply).

[¶ 15.] Even if Bendt had continued to medically treat Liffengren after her surgery, her cause of action would still turn on the nature of the condition for which she was being treated, not a general patient-physician relationship. Continuous treatment is not held to be synonymous with the continuing patient-physician relationship. Atha v. Polsky, 667 S.W.2d 307, 310 n. 3 (Tex.Ct.App.1984). In affirming summary judgment in favor of the defendant doctor, the court in Atha stated:

Continuous treatment ... embodies the treatment for that condition out of which the negligence is alleged to have arisen, continuing after the negligent act rather than the continuation of the general patient-physician relationship. While the termination of the treatment can be the time of accrual where there is no affirmative act of negligence and the injury results from the course of treatment, the general rule is that the statutory period is not postponed when there is a specific act of negligence even though the physician continues to treat the patient as long as the condition is not aggravated by it.

Id. (emphasis in original). “A continuing relationship is ‘not sporadic but developing and involves a continuity of the professional services from which the alleged malpractice stems.’ ” Bruske, 1997 SD 108, 1115, 567 N.W.2d at 877 (citing Schoenrock, 419 N.W.2d at 201). The continuing treatment doctrine should be applied only “when the professional’s involvement after the alleged malpractice is for the performance of the same or related services and is not merely continuity of a general professional relationship.” Id. at ¶ 15, 567 N.W.2d at 877-78. Continuous treatment involves more than a physician-patient relationship. See Massie, 577 N.Y.S.2d 223, 583 N.E.2d at 937 (citing McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108 (1982); Borgia, 237 N.Y.S.2d 319, 187 N.E.2d at 779). There must be ongoing treatment of a medical condition. Id.

[¶ 16.] This action does not come within the continuing treatment exception. Bendt performed the single procedure of the laparoscopy. When Liffengren began to feel pain and discomfort after the procedure, she went back to Bendt who immediately recognized the problem and consulted Yamada, a urologist. After Yamada placed the stent in Liffengren’s ureter, her condition was corrected, and she was discharged from the hospital on October 10, 1994. She did not see Bendt again after her discharge, thus no doctor-patient relationship continued because she never returned to him for further treatment of this condition. Bendt indicated in his affidavit that the October 7-10 hospitalization was “the last time [he] personally provided medical care to [Liffengren].” Further, Bendt stated “[t]he date of October 17, 1994, [was] the last time that anyone connected with my medical practice provided any care and treatment to [Liffengren].”

[¶ 17.] In the alternative, Liffengren insists that “[her] relationship with Bendt in conjunction with his consultation of Dr. Andrew Yamada was an ongoing, continuous, developing and dependent relationship which existed in relation to the damage to [her] ureter until January 19, 1995.” We do not agree. While Yamada may have continued to treat her after release from the hospital, that “continued treatment” cannot toll the statute of limitation with respect to her malpractice claim against Bendt. The purpose of the continuous treatment exception for purposes of tolling the statute of limitation is that the alleged continuous treatment be provided by the same physician or clinic. See Florio v. Cook, 65 A.D.2d 548, 408 N.Y.S.2d 949, 951 (N.Y.App.Div.1978); Camire v. United States, 535 F.2d 749, 750 (2nd Cir.1976) (holding that the continuing treatment doctrine requires treatment to be rendered by the same physician, his associate or his clinic; it does not apply where treatment involves separate physicians). “The physician [must] continue[ ] to treat the patient for the particular disease or condition created by the original act of [alleged] negligence.” Conner v. St. Luke’s Hospital, Inc., 996 F.2d 651, 653-54 (4th Cir.1993). In order for the patient to “[t]o take advantage of the ‘continuing course of treatment’ doctrine, plaintiff must ‘show the existence of a continuing relationship with [her] physician, and ... that [she] received subsequent treatment from that physician.’ Id. at 654 (citing Stallings v. Gunter, 99 N.C.App. 710, 394 S.E.2d 212, 216 (quoting Dana D. Peck, Comment, The Continuous Treatment Doctrine: A Toll in the Statute of Limitations for Medical Malpractice in New York, 49 Alb.L.Rev. 64, 72 (1984))). (emphasis added).

[¶ 18.] In Florio, the plaintiff brought a medical malpractice action against a physician after a laminectomy for removal of a spinal cord tumor. The plaintiff argued that the defendant’s referral to her own physician for further observation and treatment after the surgery invoked the continuous treatment exception, thus preventing the running of the statute of limitation. The court rejected the plaintiffs argument, concluding that:

[n]o material question of fact is raised by this contention. In open court on oral argument, [plaintiff] conceded that [defendant] could have done no more — if he did — than request the family physician to give such care and treatment as was warranted by the circumstances and that there was no master-servant or principal-agent relationship between the two physicians.

Florio, 408 N.Y.S.2d at 950.

[¶ 19.] Similarly, in this case, there is no evidence there was a master-servant relationship or principal-agent relationship between Bendt and Yamada. Liffengren stated in her affidavit that after Yamada placed the stent in her ureter, “[she] was then discharged from the hospital on October 10, 1994 and returned to Yamada’s office on November 11, 1994, for the removal of the st[e]nt. [She] then continued [to see] Yamada on a regular basis for checkups until [her] last appointment with him on January 19, 1995.” Thus, it is apparent the only contact Liffengren had with a physician for follow-up care after Yamada’s procedure, was with Yamada. The record is uncontroverted that once Liffengren left the hospital, Bendt had nothing more to do with her treatment, either by consultation with Yamada or otherwise. See Langner v. Simpson, 533 N.W.2d 511, 521 (Iowa 1995) (holding that the continuing treatment doctrine could not toll the statute of limitation for purposes of patient’s medical malpractice claims where the patient was discharged from the hospital and began receiving care from another doctor, and Simpson had no further contact with her).

[¶ 20.] No genuine issue of material fact exists concerning the expiration of the statute of limitation against Bendt. The continuing treatment doctrine cannot operate to extend the statute of limitation period beyond two years from October 10, 1994. As is evident from the record, Bendt’s treatment and care of Liffengren ended when she was discharged from the hospital, and began seeing Yamada for follow-up care after his surgery. Bendt did not treat Liffengren for the injury associated with her laparoscopy after October 10, 1994. There is no evidence that Bendt monitored or relied upon Yamada’s treatment of Liffengren after Yamada’s discharge of her. The evidence in this case is that Liffengren relied upon Yamada, not Bendt, after her release from the hospital. She was discharged pursuant to Yamada’s order. As such, the circuit court’s grant of summary judgment to Bendt is affirmed.

[¶ 21.] MILLER, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, concur.

      . Laparoscopic surgery' involves the use of instruments inserted through small incisions in the abdomen. This procedure does not involve opening the abdomen to remove the cystic mass.

      . The ureter is the fibromuscular tube which conveys urine from the kidney to the bladder. Dorland’s Medical Dictionary 1676 (25th ed.1974).

      . The peritoneum is the membrane lining, the abdominal and pelvic walls. It forms a covering for many organs, including the colon, upper end of the rectum, uterus, and ovaries. The peritoneum also partially covers the posterior wall of the bladder. Dorland’s Medical Dictionary 1168 (25th ed.1974).

      .Dr. Bendt filed his initial motion for summary judgment on November 7, 1996. It was denied by'the circuit court on January 28, 1997. Subsequently, we handed down two continuing treatment cases, Bruske on August 20, 1997, and Beckel on May 20, 1998.


author: SNELL, Justice.

text:
    Lynn KLOSTER, Appellant, v. HORMEL FOODS CORPORATION, Appellee.
    No. 98-926.
    Supreme Court of Iowa.
    June 1, 2000.
    Dennis M. Lawyer of Lawyer, Lawyer & Associates, and Alan O. Olson of the Law Office of Alan O. Olson, Des Moines, for appellant.
    Richard C. Bauerle and Allan C. Ors-born of Orsborn, Bauerle & Milani, L.L.P., and Gayla R. Harrison, Ottumwa, for ap-pellee.
   SNELL, Justice.

Plaintiff, Lynn Kloster, appeals the district court decision to deny his motion for a new trial. Defendant, Hormel Foods Corporation, cross-appeals on the ground the trial court did not have authority to hear a claim for tortious interference with medical care. The cross-appeal is sustained, the verdict is vacated, and the case is remanded for dismissal.

I. Background Facts and Proceedings

Lynn Kloster was employed by Hormel Foods Corporation from June 6,1977, until the date of his termination on February 17, 1995. During the latter stages of his tenure Kloster worked as a shipping and receiving clerk. In this capacity Kloster was required to drive a forklift and to perform numerous tasks which required heavy lifting. On January 30, 1995, Kloster sustained an injury to his lower back while stacking boxes. Kloster informed his supervisor and later requested an appointment with a physician. The following day Hormel sent Kloster to see Dr. Larry Formanek, á chiropractor frequently retained by Hormel.

Dr. Formanek performed a series of tests after which Kloster was diagnosed with discitis and lumbar strain. Dr. For-manek signed a document to this effect indicating Kloster was not to go back to work prior to a follow-up examination scheduled for 10:00 a.m. on February 1.

Kloster notified his manager, David Longacre, who allegedly became enraged, and ordered Kloster to return to work the next morning. Kloster did as he was told, but kept his appointment with Dr. Forma-nek. After the second examination Kloster’s work restriction was removed. Unofficially, Hormel agreed to place Kloster on light duty if he continued to experience further pain.

Over the course of the next several weeks Kloster complained of soreness and discomfort. He was assigned menial chores and continued to seek treatment on a regular basis. From February 1 through February 13, the record indicates Kloster routinely arrived for work at 7:00 a.m., left to see Dr. Formanek at 10:00 a.m., and then went home for the day. Pursuant to agreements with the union, Kloster was paid for a full eight-hour workday. Hormel later discovered, however, that Kloster’s appointments were actually scheduled on alternate days in the afternoon. Hormel confronted Kloster about his unexcused absences from work, and terminated his employment for gross misconduct.

Kloster filed suit alleging improper interference with medical care and retaliatory discharge. Kloster averred Hormel conspired with Dr. Formanek to define his injury in a manner that would permit the company to avoid filing “lost time” reports with state and federal agencies. At trial, Dr. Formanek testified Kloster was cleared to return to full duty subsequent to the February 1 examination, and that Hormel had not unduly pressured him to lift the work restrictions initially imposed. The jury ruled in favor of the defendant on the charge of retaliatory discharge, but determined Hormel had in fact intentionally and improperly interfered with Kloster’s medical care. The jury did not, however, find Kloster sustained any actual damages as a result of Hormel’s conduct.

Kloster subsequently filed a motion asking the court to recognize nominal damages as a matter of law, and to grant a new trial on the issue of punitive damages. The motion was denied and Kloster appealed. On cross-appeal, Hormel argues the State of Iowa does not recognize a tort for improper interference with medical care. It contends Kloster’s only remedy for the alleged misconduct lies with the industrial commissioner in a workers’ compensation proceeding.

Because Hormel’s assertion the district court lacked jurisdiction is dispositive, we decline to address the other issues presented.

II. Scope of Review

Defendant challenges the authority of the district court to hear a cause of action presumably within the province of the industrial commissioner. Questions of jurisdiction, authority, and venue are legal issues to be reviewed for correction of errors at law. State v. Clark, 608 N.W.2d 5, 7 (Iowa 2000). A challenge of this nature may be made at any time. State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993).

III. Discussion

Defendant posits the district court lacked jurisdiction to hear the case with regard to the claim of intentional and improper interference with medical care. Specifically, Hormel maintains the cause of action was little more than an attempt to assert Kloster’s patent dissatisfaction with the reasonableness of care provided. Hormel believes the proposed tort should have been classified as a workers’ compensation claim, and brought before the industrial commissioner in accordance with Iowa Code section 85.27. Because Kloster failed to initiate an administrative hearing, Hormel avers the trial court was without authority to try the matter.

Workers’ compensation claims are governed by Iowa Code chapter 85. Section 85.27 delineates the responsibilities of the employer. It provides:

The employer, for all injuries compensa-ble under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, po-diatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services....
For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury.

Section 85.27 further provides:

If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proof of the necessity therefor, allow and order other care.An application made under this paragraph shall be considered an original proceeding for purposes of commencement and contested case proceedings under section 85.26. The hearing shall be conducted pursuant to chapter 17A. Before a hearing is scheduled, the parties may choose a telephone hearing or an in-person hearing. A request for an in-person hearing shall be approved unless the in-person hearing would be impractical because of the distance between the parties to the hearing. The industrial commissioner shall issue a decision within ten working days of receipt of an application for alternate care made pursuant to a telephone hearing or within fourteen working days of receipt of an application for alternate care made pursuant to an in-person hearing. The employer shall notify an injured employee of the employee’s ability to contest the employer’s choice of care pursuant to this paragraph.

Iowa Code § 85.27 (1997).

Kloster insists his claim is not preempted by section 85.27. He emphasizes the argument that Hormel hired Dr. Forma-nek, that it improperly influenced him to remove Kloster’s medical restrictions, and that it did so for the purpose of avoiding “lost time” penalties and filing requirements with OSHA. Plaintiff maintains this is tantamount to Hormel substituting its own medical judgment for that of a licensed professional, and that this abrogates the right of an injured employee to enjoy an unfettered doctor/patient relationship.

Kloster’s claim squarely falls within the ambit of chapter 85. Although Kloster takes a novel approach to bypass the provisos imposed by the workers’ compensation statute, Kloster is in essence averring Dr. Formanek’s medical judgment was compromised, that he was not able to fulfill his obligations under the Hippocratic oath, and that he unjustifiably lifted the work restrictions.

Section 85.27 provides that an employee who is dissatisfied with the reasonableness of care proffered may petition the industrial commissioner for relief. See id. Although Kloster notes he was not dissatisfied with the course of treatment received, he was clearly dissatisfied with the relationship between Formanek and Hormel, and perceived that a lack of objectivity resulted.

A patient has a right to expect health care professionals will make decisions based on sound, qualified medical judgment. When a physician acts contrary to the best interests of a patient, these acts or omissions undermine the public trust, and may rise to the level of malpractice. This necessarily calls into question the reasonableness of care.

Characterizing plaintiffs tort claim in this manner, it is readily apparent Kloster had recourse under the statutes to request alternate care with a physician he could trust to diagnose his condition, and to evaluate his ability to perform appropriate tasks at work. Plaintiff, however, did not raise his claim before the industrial commissioner as required by section 85.27. Section 85.27 states that claims made thereunder are to be adjudicated pursuant to the Iowa Administrative Procedure Act. Id.; see Iowa Code ch. 17A. This is the exclusive remedy for injured employees seeking relief. Iowa Code § 85.20; Harned v. Farmland Foods, Inc., 331 N.W.2d 98, 100 (Iowa 1983).

The judicial review procedures of chapter 17A provide that only persons who have first exhausted all adequate administrative remedies are entitled to judicial review of agency action. Iowa Code § 17A.19(1). Kloster did not exhaust or pursue the administrative remedies at his disposal. The district court therefore lacked authority to entertain the action. We sustain the cross-appeal, vacate the verdict of the jury with respect to this tort claim, and remand for dismissal of the plaintiffs petition.

VACATED AND REMANDED ON CROSS-APPEAL.

All justices concur except McGIVERIN, C.J. and LAVORATO, J., who take no part.


author: McGIVERIN, Chief Justice.

text:
    Darlene HAMM and Ronald Hamm, Appellants, v. ALLIED MUTUAL INSURANCE COMPANY, Appellee, and Allstate Insurance Company, Defendant.
    No. 98-1283.
    Supreme Court of Iowa.
    June 1, 2000.

      Ted Harrison Engel, Des Moines, for appellants.
    Stanley J. Thompson and Amy C. Churchill of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellee.
   McGIVERIN, Chief Justice.

The question here is: when does the policy limitation period begin to run on an insured’s claim for underinsured motorist (UIM) benefits under provisions of the insured’s automobile insurance policy. The district court concluded that the limitation period began to run on the date of the automobile accident that caused injury to the insureds. Based on this conclusion, the district court dismissed the petition of plaintiff-insureds Darlene and Ronald Hamm against defendant Allied Mutual Insurance Company for UIM benefits because it was not filed within two years of the date of the automobile accident and therefore was time-barred.

Upon our review, we conclude that the policy language of the Allied policy requires that an insured bring suit against or settle with the tortfeasor within two years of the accident in order to preserve his or her right to recover UIM benefits under the Allied policy. We further conclude, however, that the policy does not establish the limitations period concerning the Hamms’ claim against Allied for UIM benefits and does not specify when the limitations period begins to run. Therefore, we conclude that the limitations period governing plaintiffs’ suit against Allied for UIM benefits is ten years and that the ten-year period did not begin to run until the date that Allied denied plaintiffs’ request for UIM benefits under the Allied policy. Because plaintiffs filed their suit against Allied within ten years of the date that Allied denied their claim, the district court incorrectly concluded that their suit against Allied was time-barred. We therefore reverse the judgment of the district court and remand for further proceedings.

I.Background facts and proceedings.

The relevant facts are not in dispute. On December 16, 1995, plaintiff Darlene Hamm was a passenger in a vehicle, which was being driven by Allen J. Breese and insured under a policy issued by defendant Allstate Insurance Company. While stopped at a stoplight, the Breese vehicle was struck from behind by a vehicle being driven by Minh Bao Vien. Plaintiff Darlene Hamm sustained personal injuries as a result of the collision. At the time of the accident, Darlene and Ronald Hamm were insured under an automobile insurance policy issued by defendant Allied Mutual Insurance Company, which included un-derinsured motorist coverage in the amount of $25,000.

On August 5, 1996, Darlene and her husband Ronald Hamm settled Darlene’s personal injury claim and Ronald’s loss of consortium claim with Vien and his automobile liability insurance carrier for $20,000, the limits of Vien’s automobile insurance policy. Plaintiffs contend that amount, however, was insufficient to compensate Darlene for her injuries and damages.

The Hamms were unable to settle their UIM claim with their insurer, Allied. As a result, the Hamms filed a petition in district court against both Allstate (the insurer of the vehicle in which Darlene was a passenger) and Allied on January 15, 1998, seeking to recover the policy limits of un-derinsured motorist coverage.

Allied filed an answer to the Hamms’ petition, raising expiration of a policy limitations period as an affirmative defense. Allied also filed a motion for summary judgment, contending that any claim by the Hamms for underinsured motorist coverage was barred because it was not brought within two years of the accident as Allied asserts is required by the language of the policy.

After a hearing, the district court agreed with Allied and sustained Allied’s summary judgment motion and dismissed plaintiffs’ petition against Allied. The Hamms appeal. The Hamms’ claim against Allstate Insurance Company is not involved in this appeal.

II. Standard of review.

Our review of a grant or denial of summary judgment is at law. Iowa RApp.P. 4; Krause v. Krause, 589 N.W.2d 721, 724 (Iowa 1999). In this appeal, the facts are undisputed. In such cases, we determine whether the district court correctly applied the law. Krause, 589 N.W.2d at 724. “Summary judgment is properly granted if the only controversy concerns the legal consequences flowing from undisputed facts.” Diggan v. Cycle Sat, Inc., 576 N.W.2d 99, 102 (Iowa 1998).

III. Language of the policy.

The dispute in this case centers upon: (1) what is the applicable limitations period for an insured’s claim against Allied for underinsured motorist (UIM) coverage under the policy, and (2) when does the limitations period begin to run? To resolve this case, we must review and interpret provisions of the insurance policy. In doing so, we are guided by well-established principles concerning the construction and interpretation of insurance policies:

“Construction of an insurance policy— the process of determining its legal effect — is a question of law for the court. Interpretation — the process of determining the meaning of words used — is also a question of law for the court unless it depends on extrinsic evidence or a choice among reasonable inferences to be drawn.”

Allied Mut. Ins. Co. v. Costello, 557 N.W.2d 284, 286 (Iowa 1996) (quoting A.Y. McDonald Indus. v. Insurance Co. of N. Am., 475 N.W.2d 607, 618 (Iowa 1991)). We have also said that when language in an insurance policy is ambiguous, requires interpretation or is susceptible to two equally plausible constructions, we will adopt the construction that is most favorable to the insured. Costello, 557 N.W.2d at 286. Additionally, an insurer has a duty to define any limitations or exclusionary clauses in clear and explicit terms. Id.

The Allied insurance policy here contains the following language concerning UIM coverage:

A. We will pay all sums which an “insured” is legally entitled to recover as compensatory damages from the owner or operator of an “underinsured motor vehicle” resulting from “bodily injury” to any person caused by an accident.
We will pay only after an “insured’s” rights to the proceeds of all liability insurance bonds or policies have been determined by judgment or settlement agreement.
SUIT AGAINST US
We may not be sued unless all the terms of this policy are complied with. We may not be sued under the Underin-sured Motorist coverage on any claim that is barred by the tort statute of limitations.

The Iowa tort statute of limitations for personal injuries is two years. See Iowa Code § 614.1(2) (1995).

As stated above, the narrow questions we must answer in this appeal are: absent express language in the policy, or applicable statutory provision, what is the applicable limitations period concerning an insured’s claim under the Allied policy for UIM benefits and when does that limitations period begin to run? Related questions are: (1) what is the effect of language in Allied’s policy which states that Allied will pay benefits “only after an ‘insured’s’ rights to the proceeds of all liability insurance bonds or policies have been determined by judgment or settlement agreement,” and (2) what effect does that language have on the provision which states “[w]e may not be sued until all the terms of this policy are complied with.”

IV. Relevant Iowa authorities.

We believe it helpful to first review our Iowa authorities that bear on a claim for benefits under the UIM provisions of an automobile insurance policy.

We have explained that “[t]he purpose of uninsured motorist coverage is to ensure minimum compensation to victims of uninsured motorists.” Veach v. Farmers Ins. Co., 460 N.W.2d 845, 848 (Iowa 1990) (emphasis added). “The goal of underinsured motorist coverage, on the other hand, is full compensation to the victim to the extent of the injuries suffered.” Id. (emphasis added). Keeping these goals in mind, “we have adopted a ‘broad coverage’ view of underinsured motorist coverage, while taking a ‘narrow coverage’ view of uninsured motorist (UM) coverage.” Id.; accord Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 573 (Iowa 1997). This means that in examining a case involving a claim for UIM benefits, we consider whether the victim will be fully compensated. Id.

We have said that a claim for UM or UIM benefits is essentially a contractual one. See Douglass v. American Family Mut. Ins. Co., 508 N.W.2d 665, 666 (Iowa 1993) (“direct suit for uninsured motorist benefits is considered to be an action on a contract, not in tort”); Vasquez v. LeMars Mut. Ins. Co., 477 N.W.2d 404, 409 (Iowa 1991) (claim for UIM benefits “is essentially a contractual one”). The applicable statutory limitations period for bringing a claim against the insurer for UM or UIM benefits is ten years. See Iowa Code § 614.1(5) (actions founded upon written contracts must be brought within ten years).

In Leuchtenmacher v. Farm Bureau Mutual Insurance Co., 461 N.W.2d 291, 292-93 (Iowa 1990), we addressed the issue of whether the statutory language “legally entitled to recover,” see Iowa Code § 516A.1, makes suit against the tortfea-sor a condition precedent to an action against the insurer for UIM benefits. We said that nothing in Iowa Code section 516A.1, and nothing in the language of the insurance policy, which tracked section 516A.1, required that the damages to which an insured is “legally entitled to recover” under a UIM provision must be determined by a separate lawsuit, as opposed to being raised in a direct claim against the insurer. 461 N.W.2d at 294. Our statements in Leuchtenmacher, however, are not necessarily controlling in this case because that case dealt with whether section 516A.1 established a condition precedent to recovery of UM or UIM coverage benefits and the policy language also did not impose such a requirement.

In Douglass, 508 N.W.2d at 667-68, we held that an insurance company may validly shorten the limitations period for bringing suit for UM benefits from what would normally be ten years, see Iowa Code § 614.1(5) (ten years for action founded upon written contract), to the two-year statute of limitations for a personal injury tort action. We concluded that policy language which stated, “[w]e may not be sued under the Uninsured Motorist coverage on any claim that is barred by the tort statute of limitations,” was a valid modification of the otherwise ten-year applicable statutory limitations period for bringing a UM suit against the insurer to the two-year limitations period for personal injury actions. In doing so, we noted that section 516A.1 does not address the limitations period for bringing a suit under the UM provisions of the policy. Id. at 666. Thus, an insurer’s authority to reduce the limitations period for such a claim “springs from general contract principles, not from any statutory grant of authority.” Id. at 667.

We also rejected the insured’s contention that the two-year limitation period did not apply because she was not aware that the tortfeasors were judgment proof until the two-year limitation period allowed in the policy had expired. We stated that “exhaustion of the plaintiffs remedies against the [uninsured] tortfeasors was not a condition precedent to an action for uninsured motorist benefits.” Id. (citing Leuchtenmacher, 461 N.W.2d at 294).

Later, in Morgan v. American Family Mutual Insurance Co., 534 N.W.2d 92 (Iowa 1995), we interpreted the meaning of policy language which stated, “[w]e may not be sued under the Uninsured Motorist coverage on any claim that is barred by the tort statute of limitations.” Id. at 98. We impliedly concluded that the two-year tort statute of limitations period began to run on the date of the accident and that the insureds’ breach of contract suit for UM coverage was therefore barred because it was not brought within the two-year period. Id. at 100. In doing so, we stated that under a reasonable interpretation, the word “claim” in the UM coverage provision refers to an action against the uninsured tortfeasor, not against the insurer. Id. at 99. Essentially, because the tortfeasor in Morgan was uninsured there was no need for the insured to pursue a claim against the tortfeasor and thus the date of the accident was the logical date for the limitations period to commence. The insured therefore had two years from the date of accident to bring a claim against the insurer for coverage under the uninsured motorist provision of the policy, but failed to bring the claim within that time period.

V. The various theories concerning when the limitations period begins to run for bringing a claim for benefits under a UIM provision.

Of the jurisdictions that have considered the issue and depending on the language of the insurance policies involved, three different events have been isolated as being the date when the policy limitations period begins to run for bringing a claim against the insurer for UIM benefits. See 3 Alan A. Widiss, Uninsured and Under-insured Motorist Insurance § 34.4, at 112 (2d ed.1995) [hereinafter Widiss]; Jeffrey A. Kelso & Matthew R. Drevlow, When Does the Clock Start Ticking? A Primer on Statutory and Contractual Time Limitation Issues Involved in Uninsured and Underinsured Motorist Claims, 47 Drake L.Rev. 689, 693 (1999) [hereinafter Kelso & Drevlow]. These three possible events include (1) the date that the insurance company allegedly breaches the insurance contract by denying the insured’s UIM claim; (2) the date of the accident; and (3) the date that the insured settles with or obtains judgment against the tortfeasor, thereby exhausting the limits of the tort-feasor’s liability coverage. See 3 Widiss § 34.4, at 112; Kelso & Drevlow, at 694.

A. Limitations period runs from the date of breach.

Although not advanced by either party in this case, some courts have adopted the rule that absent express language in the policy terms, a claim for UIM benefits is based on contract and therefore the contract statute of limitations applies. See 1 Widiss § 7.7, at 349 (stating that absent specific language in the policy, appellate court decisions almost uniformly hold that a claim for uninsured motorist insurance benefits is a contractual right and contract statute of limitations therefore applies). The theory also holds that because the claim for uninsured or underinsured motorist benefits is contractual, the policy limitations period for bringing a UIM claim begins to run on the date that the insurance company breaches the insurance contract. The reasoning behind this theory is that because a claim for UM or UIM benefits is based on contract, the limitations period begins to run on the date that the insurance contract is breached, generally, when the insurance company denies the insured’s claim for benefits. See Vega v. Farmers Ins. Co., 323 Or. 291, 918 P.2d 95, 98 (1996), superseded by statute in Or.Rev.Stat. §§ 742.504(4)(A), 742.504(12) (1999) (allowing insurer to include language stating that no cause of action shall accrue to the insured under UM/UIM coverage unless insured has filed an action against insurer within two years from date of accident); Joel S. DeVore, Vega v. S.B. 615: Underinsured Motorist Coverage and the Exhaustion Clause, 34 Willamette L.Rev. 327, 344 (1998) (discussing how Vega has been overruled by legislation). Because the insurer’s liability is contract-based, the relevant date is the date when the insurance company allegedly breaches its contract with its insured. See Vega, 918 P.2d at 98. This theory is considered the majority view. See Wille v. Geico Cas. Co., 2 P.3d 888, 890 (Okla.2000); accord Kelso & Drevlow, at 694.

B. Limitations period runs from the date of the accident.

A number of other jurisdictions have adopted the view that the limitations period for bringing a claim against the insurer for UIM benefits begins to run on the date of the accident. The reasoning behind this theory is that the insured’s claim for UIM benefits derives from the tort claim against the underinsured tortfeasor and that the insurer essentially stands in the shoes of the tortfeasor. See Shelton v. Country Mut. Ins. Co., 161 Ill.App.3d 652, 113 Ill.Dec. 426, 515 N.E.2d 235, 240 (1987); accord State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632, 634 (Fla.1982) (cause of action for UM/UIM claim arises on date of accident because right of action stems from insured’s right of action against tortfeasor). As a result, it would be inequitable to require an insurer to be exposed to liability for a longer period than that applicable to the tortfeasor and thus, the limitations period begins to run on the date of the accident. Shelton, 113 Ill.Dec. 426, 515 N.E.2d at 240. This theory is considered a minority view. See Wille, 2 P.3d at 890.

C. Limitations period runs from date of settlement/judgment with the tortfeasor.

Courts from other jurisdictions have held that the limitations period does not begin to run until the date of settlement with or entry of judgment against the tort-feasor. See 3 Widiss § 34.4, at 112-13; Kelso & Drevlow, at 695. This theory is based on a form of the discovery rule used in tort cases which is that the insured has no way of knowing what liability, if any, the UM/UIM carrier will have until the insured has exhausted the liability coverage of the tortfeasor by settlement or judgment. See 3 Widiss § 34.4, at 112-13; Kelso & Drevlow, at 695.

VI. Analysis.

A. Applicable limitations period.

We begin our analysis of the Allied policy here by first examining the relevant provisions of the policy, which we again set out as follows:

We will pay only after an “insured’s” rights to the proceeds of all liability insurance bonds or policies have been determined by judgment or settlement agreement.
SUIT AGAINST US
We may not be sued unless all the terms of this policy are complied with.
We may not be sued under the Underin-sured Motorist coverage on any claim that is barred by the tort statute of limitations.

When reading these provisions as a whole, we believe that the language in the Allied policy is ambiguous as to whether an insured must first pursue a claim to recover the limits of the tortfeasor’s liability coverage prior to filing suit against the insurer for UIM benefits. Furthermore, in some situations, the insured, through no fault of his or her own, may not be able to determine his or her rights to the tortfea-sor’s liability policy limits within two years of the accident, and as a result, could arguably not satisfy the terms of the policy. As a result of this ambiguity, we construe the policy language in the light most favorable to the Hamms. See Costello, 557 N.W.2d at 286 (stating that when provision in insurance policy is ambiguous, court will adopt construction most favorable to insured). We therefore conclude that the purpose of the policy language which states, “[w]e may not be sued under the Underinsured Motorist coverage on any claim that is barred by the tort statute of limitations,” is to disallow a UIM claim if the insured has allowed the underlying tort claim to become barred by not settling or bringing suit within the period of limitations. This language does not establish either the period of time for bringing a UIM claim under the policy language or the time when the limitations period begins to run. Neither does any other provision in the Allied policy. The language simply imposes a condition precedent to an insured’s suit against the insurer for UIM benefits.

We also point out that the insurance company has the ability, if it so chooses, to clearly articulate the applicable limitations period for claims against the tortfeasor and the insurer, and the event upon which the limitations period begins to run. Allied did not do so here.

We recognize that our holding may seem inconsistent with our decisions in Morgan and Douglass where we decided that similar policy language means that the limitations period is two years and commences on the date of the accident. Upon our review, however, we believe that we mis-characterized the policy language at issue in Morgan and Douglass concerning the applicable limitations period for a UM claim and when it commences. We, therefore, expressly overrule Morgan and Douglass in that regard.

We concluded above that the Allied policy does not establish the applicable limitations period for an insured’s suit against Allied for UIM benefits nor does it establish when the limitations period begins to run. Therefore, because the Hamms’ claim for UIM benefits is based on a contractual theory, the applicable limitations period is that provided by statute, ten years. See Iowa Code § 614.1(5); accord Vasquez, 477 N.W.2d at 409.

B. Commencement of the limitations period.

The next question is, upon the happening of what event does the ten-year limitations period begin to run? We again turn to the language of the Allied policy. Provisions relevant to this issue state:

We will pay only after an “insured’s” rights to the proceeds of all liability insurance bonds or policies have been determined by judgment or settlement agreement.
SUIT AGAINST US
We may not be sued unless all the terms of this policy are complied with.

We conclude that this language imposes a condition on an insured’s right to recover UIM benefits under the Allied policy, that is, that an insured must determine his or her rights to the limits of the tortfeasor’s liability coverage before the insurer becomes obligated to pay UIM benefits under the policy. We further conclude, however, that the language does not specify when the ten-year limitations period begins to run.

Absent specific language in the Allied policy concerning when the limitations period begins to run, we apply traditional rules regarding commencement of the contract statute of limitations to make this determination. The general rule is that the contract statute of limitations commences upon the date the contract is breached. See Diggan, 576 N.W.2d at 102. With respect to insurance policies, a breach occurs when the insurer denies an insured’s request for benefits. Applying these principles to the facts of this case, we conclude that the limitations period for plaintiffs’ UIM claim against Allied commenced on the date that Allied denied plaintiffs’ request for UIM benefits under their Allied policy.

C. Application of law to facts of case.

In this case, the automobile accident occurred on December 16, 1995, and plaintiffs settled with the tortfeasor on August 5, 1996. Plaintiffs therefore complied with the first condition, i.e., bring action against or settle with the tortfeasor within two years of the accident. The next condition plaintiffs needed to comply with in order to preserve their right to recover UIM benefits under the Allied policy was to bring suit against Allied within ten years of the date that Allied denied plaintiffs’ claim for benefits. Although the record does not identify the date that Allied denied plaintiffs’ claim, it is obvious that plaintiffs’ suit against Allied was filed within the ten-year period. The district court therefore incorrectly concluded that plaintiffs’ suit was time barred.

VII. Disposition.

Defendant Allied’s motion to dismiss the appeal, or in the alternative to strike portions of plaintiffs’ brief, was ordered submitted with the appeal. Upon due consideration, the motion is overruled.

For reasons stated above, we reverse the judgment of the district court and remand for further appropriate proceedings.

REVERSED AND REMANDED.

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

      . Some insurance policies expressly provide that the limitations period begins to run with the occurrence of a specified event. See, e.g., Union Auto. Indem. Ass’n v. Shields, 79 F.3d 39, 41 (7th Cir.1996) ("[n]o suit, action or arbitration proceeding for the recovery of any claim under [UM/UIM] endorsement shall be sustainable ... unless commenced within two (2) years after the occurrence or loss”; limitations period runs from date of accident); State Farm Mut. Auto. Ins. v. Springle, 870 P.2d 578, 579 (Colo.Ct.App.1993) (according to policy language which specifically states "[t]here is no coverage until the limits of liability of all ... policies that apply have been used up by payment of judgment or settlements,” three-year statute of limitations for bringing claim for UIM benefits begins to run from date that insured settles with under-insured tortfeasor); Bayusik v. Nationwide Mut. Ins. Co., 233 Conn. 474, 659 A.2d 1188, 1194 (1995) (policy specifically states that limitations period for filing UIM claim runs from date of accident); Morley v. Automobile Club of Mich., 458 Mich. 459, 581 N.W.2d 237, 240 (1998) (policy language requiring insured to make claim for uninsured motorist coverage within three years of date of accident was unambiguous and enforceable).

      . Some states have enacted legislation concerning the applicable limitations period for bringing a claim for UIM benefits. See Conn. Gen.Stat.Ann. § 38a-336(g)(l) (West Supp. 2000) (“No insurance company doing business in this state may limit the time within which any suit may be brought against it ... on a claim ... made on the uninsured or underinsured motorist provisions ... to a period of less than three years from the date of the accident....”); Louisiana Rev.Stats. § 9:5629 (West 1991) (“Actions brought for recovery of damages ... brought pursuant to uninsured motorist provisions ... are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”); Neb.Rev.Stat. § 44-6413(l)(e) (West 1998) (“(1) The uninsured and underin-sured motorist coverages provided in the Uninsured and Underinsured Motorist Insurance Act shall not apply to: ... (e) Bodily injury, sickness, disease or death of the insured with respect to which the applicable statute of limitations has expired on the insured's claim against the uninsured or under-insured motorist.”); Or.Rev.Stat. § 742.504(4)(d) (1999) (codifying language of an “exhaustion clause” which states "coverage does not apply with respect to [UIM] benefits unless: (A) [t]he limits of liability under any bodily injury liability bonds or policies applicable at the time of the accident ... have been exhausted by payment of judgments or settlements to the injured person or other injured persons”); Or.Rev.Stat. § 742.504(12)(a) (statutory provision allowing insurers to include policy provisions setting a contractual time limit for initiating arbitration or filing a court action against insurer for UIM benefits); 1 Alan A. Widiss, Uninsured and Underinsured Motorist Insurance § 7.10, at 364 (2d ed.1999) [hereinafter Widiss] (discussing legislation enacted by states concerning the applicable limitations period for uninsured motorist claims); Jeffrey A. Kelso & Matthew R. Drevlow, When Does the Clock Start Ticking? A Primer on Statutory and Contractual Time Limitation Issues Involved in Uninsured and Underinsured Motorist Claims, 47 Drake L.Rev. 689, 709 (1999) (stating that California has enacted “detailed and complex” legislation "which sets notice requirements, accrual dates, and a limitation period”).

      . "No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered ... unless coverage is provided ... for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an ... underinsured motor vehicle...." Iowa Code § 516A.1 (emphasis added).

      . The policy at issue in Douglass contained the following language:
      Suit Against Us. We may not be sued unless all the terms of this policy are complied with. We may not be sued under the liability coverage until the insured’s obligation to pay is finally determined at the trial or by written agreement of the insured, the claimant and us. We may not be sued under the Uninsured Motorist coverage on any claim that is barred by the tort statute of limitations.

      508 N.W.2d at 665-66. The language of the policy at issue in Douglass, however, did not include language like that in the Allied policy which states the insurer "will pay [UIM benefits] only after an ‘insured's’ rights to the proceeds of all liability insurance bonds or policies have been determined by judgment or settlement agreement.”

      . The insurance policy in Morgan apparently did not include language like that in defendant Allied’s policy that the insurer will only pay after the insured’s rights to the proceeds of all liability insurance policies have been determined by judgment or settlement.

      . See, e.g., Blutreich v. Liberty Mut. Ins. Co., 170 Ariz. 541, 826 P.2d 1167, 1171 (Ariz.Ct.App.1991) (limitations period for an action to recover benefits under UIM motorist provision begins to run only upon insurer's breach of contract); Spear v. California State Auto. Ass’n, 2 Cal.4th 1035, 9 Cal.Rptr.2d 381, 831 P.2d 821, 825 (1992) ("an insured's cause of action against insurer to compel arbitration of [UM] benefits does not accrue, and statute of limitations does not begin to run, unless the insurance company refused to arbitrate”); Allstate Ins. Co. v. Spinelli, 443 A.2d 1286, 1287 (Del.1982) (action by insured for UM benefits sounds in contract rather than tort and cause of action does not accrue until insurer denies coverage); Norfleet v. Safeway Ins. Co., 144 Ill.App.3d 838, 98 Ill.Dec. 598, 494 N.E.2d 720, 723 (1986) (time period for filing demand for arbitration of UM claim began to run on date that insurer refused to comply with arbitration demand); Whitten v. Concord Gen. Mut. Ins. Co., 647 A.2d 808, 811 (Me.1994) (limitations period for filing UM claim against insurer began to run when insurer rejected insureds' demand for payment of medical bills); Palmero v. Aetna Cas. & Sur. Co., 606 A.2d 797, 799 (Me.1992) (insured’s cause of action for UM benefits accrued when insurer denied insured’s request for benefits); Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 582 A.2d 501-07 (1990) (same); Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 664 N.E.2d 1188, 1190 (1996) (same); Jacobs v. Detroit Automobile Inter-Insurance Exch., 107 Mich.App. 424, 309 N.W.2d 627, 630 (1981) (same); Grayson v. State Farm Mut. Auto. Ins., 114 Nev. 1379, 971 P.2d 798, 800 (1998) (limitations period runs from date insurer denies payment of insured’s UIM claim); Metropolitan Property & Liab. Ins. Co. v. Walker, 136 N.H. 594, 620 A.2d 1020, 1022 (1993) (same); Wille v. Geico Cas. Co., 2 P.3d 888, 890 (Okla.2000); Vega v. Farmers Ins. Co., 323 Or. 291, 918 P.2d 95, 98 (1996) (same), superseded by statute in Or.Rev.Stat. §§ 742.504(4)(A), 742.504(12) (1999); Webster
        v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex.Ct.App.1992) (same); Alvarez v. American Gen. Fire & Cas. Co., 757 S.W.2d 156, 158 (Tex.Ct.App.1988) (same); Schwindt v. Commonwealth Ins. Co., 140 Wash.2d 348, 997 P.2d 353, 360 (2000) (same); Safeco Ins. Co. v. Barcom, 112 Wash.2d 575, 773 P.2d 56, 59 (1989) (same); Plumley v. May, 189 W.Va. 734, 434 S.E.2d 406, 411 (1993) (same).

      . See, e.g., State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632, 634 (Fla.1982) (cause of action for UM or UIM claim arises on the date of the accident with the uninsured/underinsured motorist); Flatt v. Country Mut. Ins. Co., 289 Ill.App.3d 1097, 225 Ill.Dec. 151, 682 N.E.2d 1228, 1233 (1997) (same); Shelton v. Country Mut. Ins. Co., 161 Ill.App.3d 652, 113 Ill.Dec. 426, 515 N.E.2d 235, 238 (1987) (holding that under policy language stating that insurer would only pay after all other policy limits had been exhausted by judgment or payment and that suit for UIM benefits against the insurer will be barred unless commenced within two years of date of accident, exhaustion clause does not govern when insured could sue insurer, but rather only qualifies when insurer will pay claim, and limitations period therefore began to run on date of accident, not date that insured settled with tortfeasor); Johnson v. State Farm Mut. Auto. Ins. Co., 594 N.W.2d 243, 245 (Minn.Ct.App.1999) (absent language in policy stating ''[tjhere is no coverage until the limits of all bodily injury liability bonds and policies ... have been used up by payment of judgment or settlement," limitations period begins to run on date of accident); Weeks v. American Family Mut. Ins. Co., 580 N.W.2d 24, 27 (Minn.1998) ("Because liability rather than the existence of coverage is the underlying substantive issue, the cause of action for either UIM or UM benefits accrues once the accident occurs....”); Green v. Selective Ins. Co., 144 N.J. 344, 676 A.2d 1074, 1079 (1996) (same); Louden v. Moragne, 327 S.C. 465, 486 S.E.2d 525, 526 (S.C.Ct.App.1997).

      . See, e.g., Brown v. American Family Ins. Group, 989 P.2d 196, 197 (Colo.Ct.App.1999) (plaintiff’s claim for UIM benefits accrued on date that plaintiff settled with other driver); Consiglio v. Transamerica Ins. Group, 55 Conn.App. 134, 737 A.2d 969, 971 (1999) (pursuant to language in policy stating that insurer "will pay only after all liability bonds or policies have been exhausted by judgments or payments," and which did not include a time limit for making a UIM claim, policy limitations period for bringing a UIM claim began to run on date that insureds settled with tortfeasor's liability insurer); Woodall v. Travelers Indem. Co., 699 So.2d 1361, 1364 (Fla.1997) (holding that the limitations period for bringing a claim for UIM benefits begins to run from the date of the accident, but that language in policy which requires an insured to first prosecute a claim against a third party means insured must first pursue a claim against tortfeasor before seeking payment of UIM benefits and limitations period is tolled until insured receives payment from the tort-feasor’s liability carrier); Butler v. Economy Fire & Cos. Co., 199 Ill.App.3d 1015, 146 Ill.Dec. 94, 557 N.E.2d 1281, 1286 (1990) (holding that under policy stating that no suit, action or arbitration for UM/UIM benefits shall be sustainable unless the insured has fully complied with all terms of the policy, "nor unless commenced within two years after the occurrence of the loss,” loss did not occur until it is determined by judgment or settlement of personal injury lawsuit, whether tortfeasor’s policy limits are sufficient to fully compensate the insured); Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.2d 224, 227 (Miss.1984) (insured’s cause of action for UM benefits did not accrue, and six-year statute of limitations did not begin to run, until supreme court issued its opinion affirming trial court’s judgment that at-fault driver was not insured under vehicle owner's policy); North Carolina Ins. Guar. v. State Farm Mut. Auto. Ins. Co., 115 N.C.App. 666, 446 S.E.2d 364, 369 (1994) (insureds did not have cause of action against insurer for uninsured motorist coverage as a consequence of the "insolvency of the tortfeasor’s insurer,” and limitations period did not begin to run, until the tortfea-sor’s insurance company was declared insolvent).

      . Cf. Phillips v. State Auto. Mut. Ins. Co., 127 Ohio App.3d 175, 711 N.E.2d 1080, 1083 (1998) (holding that policy language which states that no legal action may be brought against insurer unless begun within two years of date of accident is ambiguous when read with exhaustion clause requiring insured to exhaust limits of tortfeasor's liability coverage; insured therefore has two years from date of judgment or settlement with tortfeasor to seek UIM benefits under policy).