text:
    ALLIANT ENERGY-INTERSTATE POWER AND LIGHT COMPANY, Interstate Power and Light Company, Interstate Power and Light Company, f/k/a IES Utilities, Inc., and/or Alliant Energy Corporation, Appellees, v. Bo DUCKETT, a/k/a Mary Duckett, f/k/a Mary E. Jeambey, Appellant.
    No. 04-1986.
    Supreme Court of Iowa.
    April 20, 2007.

      Merrill C. Swartz and John B. Grier of Cartwright, Druker & Ryden, Marshall-town, for appellant.
    David R. Schlee and Truman K. El-dridge, Jr., of Schlee, Huber, McMullen & Krause, P.C., Kansas City, Missouri, and Stephen J. Powell and Jim D. DeKoster of Swisher & Cohrt, P.L.C., Waterloo, for appellees.
   CADY, Justice.

In this appeal, we must construe a natural gas utility’s tariff that provides for indemnity. The district court granted summary judgment for the utility, and awarded it indemnity from the customer. We reverse and remand.

I. Background Facts and Proceéd-ings.

Alex Saunders died from a natural gas explosion that occurred in his apartment on April 9, 2001. The apartment was located in Ames, and was part of a three-plex unit created from an old two-story single-family dwelling. Bo Duckett (Duck-ett) purchased the apartment building in 1984, and maintained it until the time of the explosion. Duckett generally performed the light-duty maintenance on the building, but contracted out most of the electrical, plumbing and furnace work. One contractor was Ames Heating and Cooling, which inspected and maintained the wall furnace in Alex Saunders’s living room. The furnace received natural gas through a connector pipe, which served as the connection between the furnace and the home’s natural gas distribution pipe. The explosion was the result of a natural gas leak from the connector pipe, but the specific reason for its failure remains unknown. The connector pipe was manufactured and installed some thirty-six years earlier. Alliant Energy Corporation (Alli-ant) supplied natural gas to the multifamily residence, but did not design, manufacture, sell, supply or otherwise handle the connector responsible for the leak.

In July of 2002, the Estate of Saunders (Saunders) sued Alliant for Alex Saunders’s death. The theories of liability included negligence (relying on the doctrine of res ipsa loquitor), and breach of express and implied warranty. Alliant denied the claims in its answer. Alliant also filed a cross-claim against Duckett, alleging it was entitled to indemnification or contribution from Duckett if it paid a claim to Saunders for any amount. Saunders then amended the petition to assert claims against AUiant, Duckett, and Ames Heating and Cooling for wrongful death under theories of negligence, breach of contract, breaches of express and implied warranties, and loss of spousal consortium. Affi-ant answered the amended petition and expressly denied any liability, but sought indemnity from Duckett if it was in fact deemed liable to Saunders for any amount. Duckett also filed answers to Saunders’ petition and Affiant’s cross-claim, and denied liability, claiming the decedent and other defendants were at fault.

The case never went to trial. Saunders settled the claims against AUiant, Duckett, and Ames Heating and Cooling for $325,000. AUiant’s cross-claim against Duckett, however, survived. Thereafter, Duckett and AUiant filed motions for summary judgment regarding the cross-claim. AUiant ultimately relied on section 5.12 of a tariff filed with the Iowa Utilities Board (IUB) to support its claim for indemnity from Duckett. In her first motion for summary judgment, Duckett claimed Affi-ant’s settlement was based solely on its own fault, and the tariff did not specifically allow AUiant to be indemnified for its own fault. Affiant’s motion for summary judgment alleged there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Duckett filed a second motion for summary judgment and argued AUiant had no right to indemnity because AUiant must prove it was liable to Saunders and it had faUed to do so.

Based on the record, the district court denied Duckett’s motions for summary judgment, and granted judgment for AUi-ant. The district court interpreted the tariff to entitle AUiant to indemnification regardless of who was at fault. The district court noted there was no genuine claim that AUiant was at fault for the explosion because “the existing record contains no evidence of AUiant’s negligence or fault in causing the April 9, 2001, explosion and resulting damages.” The district court also held the settlement was reasonable.

Duckett then filed an Iowa Rule of Civil Procedure 1.904(2) motion and a motion to dismiss. She argued the district court lacked the authority to hear the case, and reiterated that AUiant had to prove it was liable because it could not be indemnified if it was not at fault. The district court denied the motions.

On appeal, Duckett claims the district court erroneously granted AUiant’s motion for summary judgment because Iowa law and public policy considerations forbid indemnification in this case, and even if indemnification is allowed under the terms of the tariff, AUiant cannot be indemnified because AUiant did not prove it was liable to Saunders. Duckett additionally argues that if AUiant did not have to prove it was liable, then we should remand the case to the district court to allow her to prove that AUiant was liable to Saunders. Finally, Duckett claims the district court should have granted her motion to dismiss because the IUB, not the district court, had jurisdiction and authority over the indemnity claim.

II. Standard of Review.

A district court’s entry of summary judgment is reviewed for the correction of errors at law. Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa 2006) (citing Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003)). “Summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.” Id. Our review of a district court’s ruling on a motion to dismiss is also for errors at law. Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (citing Iowa R.App. P. 4; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998)). “Ultimately, ‘our decision to overrule or sustain a motion to dismiss must rest on legal grounds.’ ” Trobaugh v. Sondag, 668 N.W.2d 577, 580 (Iowa 2003) (quoting Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994)).

III. Duckett’s Jurisdictional Challenge.

Alliant claims we need not address Duckett’s challenge to the jurisdiction of the court to hear the cross-claim because Duckett waived the challenge. We have stated previously:

When a party claims a jurisdictional challenge has been waived, it is often necessary to determine whether the specific challenge to jurisdiction targets subject matter jurisdiction or jurisdiction of a particular case. Subject matter jurisdiction refers to the authority of the court to hear and determine the general class of cases to which the proceeding belongs. It cannot be conferred by consent, waiver, or estoppel. This is because parties to a lawsuit cannot establish jurisdiction where it has not been first conferred by the constitution or legislation. On the other hand, the failure to properly invoke the authority of the court in a particular case can be obviated by consent, waiver, or estoppel.

Keokuk County v. H.B., 593 N.W.2d 118, 122 (Iowa 1999). Based on Duckett’s arguments, it is difficult to determine whether her objection “targets subject matter jurisdiction or jurisdiction of a particular case.” In her motion to dismiss, Duck-ett argued the IUB had “exclusive jurisdiction” of Alliant’s cross-claim and a party could raise “subject matter jurisdiction” at any time. She also argued the IUB retained “primary enforcement authority” of the matter. Accordingly, Duckett argued the summary judgment against her should be void. The district court properly noted Duckett’s motion to dismiss referred to separate jurisdictional concepts that are not identical. In her appellate brief, Duckett still refers to her argument as one based on “jurisdiction/authority.”

Thus, we find it once again “helpful at this juncture to point out the difference between a court’s subject matter jurisdiction and its authority.” State v. Emery, 636 N.W.2d 116, 119 (Iowa 2001). “Subject matter jurisdiction refers to ‘the authority of a court to hear and determine cases of the general class to which the proceedings in question belong, not merely the particular case then occupying the court’s attention.’ ” Christie, 448 N.W.2d at 450 (emphasis added) (quoting Wederath v. Brant, 287 N.W.2d 591, 594 (Iowa 1980)). “A court may have subject matter jurisdiction but for one reason or another may not be able to entertain a particular case. In such a situation we say the court lacks authority to hear that particular case.” Emery, 636 N.W.2d at 119.

Importantly, “[a] court may lack authority to hear a particular case ‘where a party fails to follow the statutory procedures for invoking the court’s authority.’ ” Id. (quoting Schrier v. State, 573 N.W.2d 242, 244-45 (Iowa 1997)). Although Duck-ett argues in terms of jurisdiction and authority, she ultimately argues Alliant, failed to follow statutory procedure because it was required to exhaust its administrative remedies through the IUB.

Regarding this specific issue we have said:

It is well-established that a party must exhaust any available administrative remedies before seeking relief in the courts. The district court is deprived of jurisdiction of the case[] if administrative remedies are not exhausted.
Generally, the exhaustion-of-remedies requirement does not implicate subject matter jurisdiction. This is because the exhaustion-of-remedy doctrine does not preclude judicial review, but merely defers it until the administrative agency has made a final decision. Our legislature has given the district court subject matter jurisdiction to act in response to challenges to decisions made by administrative agencies, but requires this authority to be withheld until any available administrative remedies have been exhausted. Thus when a litigant requests judicial review before exhausting administrative remedies, the district court merely lacks authority to entertain a particular case. This is the type of challenge that can be waived.

Keokuk County, 593 N.W.2d at 122. Thus, even if we interpreted Duckett’s argument to encompass an objection to subject matter jurisdiction, such jurisdiction is not at issue here. Instead, the issue before us is whether the court lacked the authority to hear the case. As a result, the defect can be waived if not timely raised by an objection. See Emery, 636 N.W.2d at 120 (“[A] defect in the court’s authority to hear a particular case may be waived, whereas any defect in its subject matter jurisdiction is not subject to waiver.” (citing State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993))).

Alliant argues Duckett failed to timely challenge the court’s authority and therefore waived this defense. See 21 C.J.S. Courts § 85, at 114 (2006) (“An objection that the court lacks jurisdiction of the subject matter may be made at any time; generally, an objection to jurisdiction on any other ground is waived if not made at the first opportunity or seasonably. ... An objection to jurisdiction based on any ground other than lack of jurisdiction of the subject matter ... is usually waived by failure to raise the objection at the first opportunity, or in due or seasonable time, or within the time prescribed by rule or statute.”); In re

Marriage of Ivins, 308 N.W.2d 75, 77 (Iowa 1981) (“It is true that subject-matter jurisdiction cannot be waived or conferred by consent. However, this is not true in the case of objections to personal jurisdiction, such as involved here, which will be deemed waived unless raised ‘at the first opportunity, or in due or reasonable time (Citations omitted.)). Duckett admits she did not raise her objection when Alliant first filed its cross-claim with the district court. She insists, however, the objection was raised as soon as practicable. She contends she did not know Alliant was relying on the indemnification provision in the tariff for its cross-claim, and was not in a position to argue the cross-claim should be heard by the IUB until she learned the tariff provision was at issue.

Duckett is correct Alliant’s cross-claim for contribution and indemnity did not mention the tariff provision. Thus, when Duckett filed her answer to Alliant’s cross-claim she may not have been responsible for raising the issue of the court’s authority to hear the claim. However, Duckett subsequently learned the tariff was at the heart of the cross-claim, and failed to raise the issue until January 2004, more than a year later. Duckett even invoked the court’s authority to grant summary judgment based on her claim the tariff did not permit Alliant to be indemnified before she finally decided to challenge the court’s authority to hear the cross-claim. In fact, Duckett did not raise the issue until after the district court ruled on the summary judgment motions filed by the parties. Based on these facts, it becomes clear that Duckett did not timely raise her objection to the court’s authority. Her failure to do so results in waiver.

IV. Indemnification.

Indemnification is a difficult subject, and the legal principles we have developed in indemnification cases are not always easy to apply. We have previously

aeknowledge[d] the complexity of the law of indemnification and the challenges that can confront judges and lawyers in its application to particular factual circumstances. Essentially, the historical complexity in this area of the law can be traced to the competing legal and equitable interests that give rise to the doctrine, as well as an array of public policy considerations.

McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 574 (Iowa 2002) (citations omitted). Nevertheless, the difficulties in this area are often allayed by first determining the terms of the indemnification agreement. The agreement in each case ultimately determines the rights of the parties because our legal principles concerning indemnification are often qualified by the particular terms of the agreement, or the tariff in this case.

Therefore, we begin by considering the language of the utility tariff. Section 5.12 of the tariff states:

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

We must interpret section 5.12 the same as any other contract for indemnification. Although Alliant is correct that a tariff “has the force and effect of law,” this does not mean it should be interpreted differently than other contracts. Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333, 342 (Iowa 2005). The terms of a tariff essentially replace private contracts, and “[w]e construe a tariff according to the same rules as contracts.” Id. at 342-43. Therefore, the general rule that indemnification provisions are subject to the same formation, validation, and interpretation rules as other contracts is not altered because the indemnity provision is part of a tariff. See McNally, 648 N.W.2d at 571 (“A contract for indemnification is generally subject to the same rules of formation, validity and construction as other contracts.” (citing Evans v. Howard R. Green Co., 231 N.W.2d 907, 916 (Iowa 1975))); Cochran v. Gehrke, Inc., 293 F.Supp.2d 986, 994 (N.D.Iowa 2003) (same).

We have previously stated these rules in the context of a tariff as follows:

In construing a written contract, “the intent of the parties must control; and except in cases of ambiguity, this is determined by what the contract itself says.” We construe a contract in its entirety by considering all of its pertinent provisions. We assume no part of the contract is superfluous or of no effect and a construction giving meaning to all its clauses is preferred. If a tariff is ambiguous, we strictly construe the language of a tariff against the drafter, the utility. A strict construction against a tariffs drafter is not justified when the construction would ignore a permissible and reasonable construction that conforms to the intentions of the framers of the tariff. Any ambiguity created by the incorporation of seemingly contradictory clauses must be resolved against the drafter of the contract.
This rule of strict construction, however, does not apply if a strict construction of the tariff has the effect of discriminating based on price or service.

Estate of Pearson, 700 N.W.2d at 343-44 (citations omitted). In addition, we have noted two questions must be answered when determining a party’s right to indemnification: “ ‘(1) for whose negligent acts causing damage is indemnity promised? and (2) what is the scope of the area in which indemnity is available?’ ” Modern Piping, Inc. v. Blackhawk Automatic Sprinklers, Inc., 581 N.W.2d 616, 624 (Iowa 1998) (quoting R.E.M. IV, Inc. v. Robert FI. Ackermann & Assocs., Inc., 313 N.W.2d 431, 433 (Minn.1981)); see Cochran, 293 F.Supp.2d at 994 (asking these questions). Thus, we now apply our rules of construction to answer these questions.

Section 5.12 fails to specifically reference for whose negligent acts indemnity is promised. In this regard, it is ambiguous and warrants a strict construction against the utility. Estate of Pearson, 700 N.W.2d at 343. It simply provides that the customer must indemnify the gas company against claims for loss or damage connected with the use of the gas service by the customer “at or on the customer’s side of the point of delivery.” We refuse to find, as the district court did, that this language permits indemnity regardless of who was negligent. Moreover, we find section 5.12 only permits indemnity when the customer is at fault.

First, section 5.12 does not say, with any unambiguous terms or any reasonable construction, that Alliant can be indemnified for its own fault or when Duckett is not at fault. Alliant, in fact, conceded at oral argument that section 5.12 did not permit indemnity for Alliant’s own fault. This construction is consistent with our requirement that an indemnity agreement must clearly express an intention to indemnify the indemnitee for its own negligence in order to give it that effect. See McNally, 648 N.W.2d at 571 (“[I]ndemnifieation contracts will not be construed to permit an indemnitee to recover for its own negligence unless the intention of the parties is clearly and unambiguously expressed.”).

Second, it could not have been the intention of the tariff for Alliant to be indemnified by the customer when the customer was not at fault. The tariff is an agreement between Alliant and the customer, and while it protects Alliant from claims brought by third persons, see Estate of Pearson, 700 N.W.2d at 344-45 (“[T]he intent of section 5.12 was to protect [the indemnitee] from claims brought by third parties, not those of the customer.”), we refuse to read it in such a way that could force a faultless customer to indemnify a faultless indemnitee, see McNally, 648 N.W.2d at 571 (“The traditional reluctance of courts to allow the burden of one who is negligent to be transferred to another who is not at fault, especially where there is a disparity in bargaining power and economic resources of the parties, can be traced to public policy considerations. Thus, indemnification contracts claimed to contain these provisions are construed more strictly than other contracts.” (Citation omitted.)). Instead, the language of the tariff limits indemnity to when the underlying claim is for damage connected with or growing out of the use of gas service by the customer. This language supports the approach that the actions of the customer must be a cause of the damage. Moreover, sections 2.12, 2.24, and 4.06 of the tariff reveal that the customer is made responsible to install and maintain the proper equipment and apparatus to use the gas service on the customer’s side of the point of delivery. These sections impose a duty on the customer to properly maintain the pipes and apparatus in using the gas service on the customer’s side of delivery, and the tariff then imposes indemnification involving damage claims connected with the failure of the customer to properly perform its obligations under the tariff in using the gas service. See Estate of Pearson, 700 N.W.2d at 343 (recognizing a contract is construed in its entirety). Thus, we conclude section 5.12 of the tariff only provides indemnity when the customer is negligent.

We now consider the scope of indemnity in this case. Section 5.12 makes indemnity available when the loss or damage is at least indirectly connected with the use or distribution of gas, and occurs at or on the customer’s side of the point of delivery. The point of delivery is the outlet of the company gas meter where the company delivers the natural gas. There is nothing ambiguous about this language, nor about the circumstances of this case. The claims all stem from the natural gas explosion that occurred on Duckett’s side of the point of delivery, which no party disputes, and which are clearly encompassed by the scope of the area in which indemnity is provided in section 5.12.

Applying our rules of construction to section 5.12, we find it only permits indemnification when the customer is negligent and when the loss or damage occurs at or on the customer’s side of the point of delivery. Otherwise, Alliant has no claim for indemnity. We now address the arguments of the parties as they relate to our construction of section 5.12.

Duckett first argues Alliant’s indemnification claim must fail because section 5.12 does not permit Alliant to be indemnified for its own negligence. See McNally, 648 N.W.2d at 571. It maintains Alliant has sought indemnification for its own negligence in this case because it settled the underlying claim with Saunders based on claims of its own negligence.

We have adopted the general rule that an indemnification agreement will not be construed to permit an indemnitee to recover for its own negligence unless the indemnification agreement clearly provides otherwise. Id. at 572. However, the application of this rule of construction to this case is not in dispute. Both Duckett and Alliant, as do we, agree the tariff does not permit the gas company to recover indemnification for its own negligence. Thus, the question is whether Alliant is seeking indemnification from Duckett for its own negligence, contrary to the terms of the tariff, because the claim by Saunders that resulted in the loss to Alliant was based on allegations of Alliant’s own negligence.

Duckett argues the grounds for a claim for indemnification are confined to the grounds or allegations asserted against the indemnitee in the underlying action. Thus, Duckett argues that if the underlying claim brought against an indemnitee is based on allegations of its own negligence, as in this case, any subsequent claim for indemnification by the indemnitee must necessarily be based on its own negligence. Duckett primarily relies on our prior pronouncement in McNally:

When the underlying litigation settled by a potential indemnitee was limited to allegations of the indemnitee’s own negligence not covered under the indemnification agreement, there can be no claim for indemnity because the amount paid in the settlement could only have been the result of the indemnitee’s own non-covered negligence.

648 N.W.2d at 578.

We recognize that allegations of liability against an indemnitee in a claim brought by the injured party normally frame the grounds upon which liability could be imposed against the indemnitee in the underlying action. Thus, we agree with Duckett that a settling indemnitee can normally only establish its own liability to the injured party so as to support a claim for indemnification within the context of the grounds for liability alleged by the injured party in the underlying claim. However, this limitation is only important in an indemnification claim when the indemnification agreement limits indemnification to those circumstances where the indemnitee must establish its own liability to the injured party as an element of recovery.

Generally, an indemnitee who has settled the underlying claim must first establish it was liable to the injured party as an element of recovering indemnification. Ke-Wash Co. v. Stauffer Chem. Co., 177 N.W.2d 5, 11 (Iowa 1970). This rule, however, does not apply if the indemnification agreement does not require it. McNally, 648 N.W.2d at 575. In McNally, we referred to indemnification under these circumstances as based on a “purely voluntary” loss. Id. When an indemnification agreement permits the indemnitee to recover indemnification independent of any underlying liability to the injured party, then the allegations of liability by the injured party do not limit the indemnitee’s claim for indemnification. Instead, when the indemnification agreement permits indemnification for a loss incurred for reasons other than legal liability, or a “purely voluntary” loss, the indemnitee is entitled to show as a part of the indemnification claim that the loss incurred by settling the underlying claim brought by the injured party was based on non-legal reasons, such as a business decision, despite the allegations of its own legal liability.

The indemnification claim brought in McNally failed not only because the underlying claim by the injured party was limited to grounds of negligence that did not permit indemnification under the indemnification agreement, but also because the indemnification agreement did not permit the indemnitee to obtain indemnification without first establishing it was liable to the injured party. Id. at 576-78. In other words, the indemnitee could not recover indemnification under the agreement if the settlement was “purely voluntary,” or based on non-legal reasons. In that dual context, the settlement by the indem-nitee precluded indemnification.

In this case, as in McNally, the indemni-tee cannot recover indemnification under the tariff if the settlement was based on the negligence of the indemnitee. However, unlike the indemnification agreement in McNally, the indemnification tariff in this case does permit indemnification based on a “purely voluntary” loss, or otherwise a settlement based on reasons independent of the indemnitee’s liability.

This approach is evident from the specific language of the tariff that limits indemnification only when the injury or damage resulted from the customer’s use of the gas service, together with the undisputed proposition that the tariff does not permit the gas company to obtain indemnification when its own negligence was a cause of the injury or damage. As a result of these two standards, the tariff necessarily contemplates that a “purely voluntary” payment will serve as the basis for the loss that gives rise to a claim for indemnification, not a payment based on the liability or negligence of the gas company. This approach reveals an “intent to alter the rule against voluntary payments.” See id. at 575. An indemnification tariff that never permits indemnification if the gas company is at fault, conversely can only mean indemnification is available when the gas company is not at fault. Consequently, this interpretation allows the gas company to settle a claim brought by the injured party based on claims of its own negligence, then show in an indemnification action that the loss or settlement by the gas company was actually a “purely voluntary” loss based on the liability of the customer, not its own negligence.

Duckett has also argued that Alli-ant cannot be indemnified in this case because Iowa law requires an indemnitee who has settled the underlying claim to prove it was hable to the claimant prior to recovery, and that Alliant has failed to do so. Her argument is based on the following principle we announced years ago:

We hold except where there is an expressed agreement for indemnification providing otherwise as in Robert & Company Associates v. Pinkerton & Laws Co., 120 Ga.App. 29, 169 S.E.2d 360, 362-63, a party seeking to establish in an independent action a right of indemnity as a theory of recovery must plead and prove three basic elements: (1) it was liable to the injured party, (2) the settlement was reasonable and (3) the facts are such as to give rise to a duty on the part of the indemnitor to indemnify the indemnitee.

Ke-Wash, 177 N.W.2d at 11. Yet, as we noted in Ke-Wash, the requirement to prove liability is unnecessary when the terms of the agreement provide otherwise. Id,.; see also McNally, 648 N.W.2d at 574-75 (recognizing the Ke-Wash requirements and the exception); Kaydon Acquisition Corp. v. Custom Mfg., Inc., 317 F.Supp.2d 896, 908-10 (N.D.Iowa 2004) (discussing the “McNally & Nimergood exception”). This is exactly the case here. As we have determined, the tariff eliminates the first Ke-Wash element. Any other interpretation would render the tariff useless. A settling indemnitee could never recover if it had to prove its liability to meet the requirements of our law, and yet also prove it was not at fault to meet the requirements of the tariff. We will not construe the tariff in such a manner as to nullify its provisions and impose an impossible burden on the indemnitee. See Estate of Pearson, 700 N.W.2d at 343-44 (recognizing that we will construe a contract to give it meaning).

This analysis and construction of the tariff disposes of both arguments raised by Duckett in support of her claim that Alli-ant was not entitled to summary judgment. As to the first argument, although the tariff does not entitle the gas company to indemnification for its own negligence, a gas company can under the tariff settle the underlying lawsuit based on claims of its own negligence and then establish in the indemnification action that the customer was in fact the negligent party. As to the second argument by Duckett, the tariff reveals it does not follow the traditional notion of treating indemnification as an obligation to indemnify the indemnitee against liability of the indemnitee to another or against a loss resulting from liability. See McNally, 648 N.W.2d at 570, 577. Consequently, the requirement to plead and prove its own liability when the underlying claim for damages was settled without an adjudication of liability does not apply. See id. at 574-75; Ke-Wash, 177 N.W.2d at 11-12.

Nevertheless, the district court erroneously held the tariff allowed indemnity regardless of who was at fault. The tariff only allows indemnity when Alliant is not at fault and the customer is at fault. It was error for the district court to hold otherwise. Moreover, this error was visited upon the summary judgment entered by the district court because the court made no additional finding that the customer failed to properly install or maintain the equipment, or was otherwise at fault, in the use of the gas service. The district court only determined there was no evidence Alliant was at fault, and it was undisputed the cause of the damages occurred at a connector pipe on the customer’s side of the point of delivery. Without an additional determination that there is no factual issue with respect to the customer’s fault in the installation, maintenance, or care of the connector pipe, summary judgment was improper. Thus, we remand the case in order for the court to make this additional determination, and in light of its conclusion, reconsider the propriety of summary judgment.

In the end, the tariff does not disadvantage the customer but merely gives the gas company greater power to settle a claim brought by a person who has been injured from a natural gas explosion or some other catastrophe due to the distribution and use of metered gas. The tariff enables the gas company to pay a settlement to the injured person even when its evidence shows the customer was at fault, and to then sue the customer for indemnification by establishing that the customer was the party at fault. The other elements of recovery under Ke-Wash are applicable to protect the customer, and the customer will never be responsible for indemnification without proof of its own fault. The tariff ultimately permits the injured person to be removed from the litigation and to allow the defendants to litigate the issue of liability between them.

REVERSED AND REMANDED.

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

      . Alliant is the parent company of another named defendant, Interstate Power & Light Company. As the trial court and parties have done throughout these proceedings, we will refer to both companies as Alliant. Alliant, of course, was also formerly known as IES Utilities.

      . Duckett settled for $25,000 and AUiant and Ames Heating and Cooling settled for $150,000 each.

      . The Settlement Agreement with AUiant specifically reserved the claim of indemnification against Duckett.

      .As the sentence implies, "jurisdiction of a particular case” does not mean subject matter jurisdiction. See Christie v. Rolscreen, 448 N.W.2d 447, 450 (Iowa 1989) ("Sometimes we have referred to lack of authority to hear the particular case' as lack of jurisdiction of the case.” (Citation omitted.)). Instead, jurisdiction of the case refers to the court's authority to hear the specific or particular case. See State v. Wiederien, 709 N.W.2d 538, 540 (Iowa 2006) (noting " lack of jurisdiction of the case[]’ occurs when the court has subject matter jurisdiction but may not be able to act in a particular case for some reason” (citing Christie, 448 N.W.2d at 450)).

      . Duckett also filed a rule 1.904(2) motion that argued the district court lacked jurisdiction/authority.

      . An argument that a judgment is void is an argument based on lack of subject matter jurisdiction, not authority. See In re Estate of Falck, 672 N.W.2d 785, 791 (Iowa 2003) (noting the lack of subject matter jurisdiction renders a judgment void and subject to collateral attack, whereas lack of authority simply makes the judgment voidable).

      . This reference to “jurisdiction of the case” is synonymous with a court’s particular, as opposed to general, “authority.” “Jurisdiction of the case” does not mean subject matter jurisdiction. See Christie, 448 N.W.2d at 450 ("Sometimes we have referred to ‘lack of authority to hear the particular case' as lack of jurisdiction of the case.” (Citation omitted.)).

      . Importantly, the "filed tariff doctrine” applied once the claim became one involving a utility's tariff provision. See Teleconnect v. U.S. West Commc'ns, Inc., 508 N.W.2d 644, 647-48 (Iowa 1993). "Under th[is] doctrine, the relevant regulatory agency retains primary enforcement authority over utility disputes in which, absent the tariff scheme, contract or tort law would ordinarily govern.” Id. (citations omitted). In addition, we have recognized:
      Virtually all authorities hold when authority is delegated to an administrative officer or body, such delegation within its terms and limitations is primary and exclusive unless a contrary intent is clearly manifested by the legislature.... [T]he provisions for appeal, first to the district court and then to this court, make it apparent the legislature intended the administrative remedy before the Commerce Commission should be first exhausted before resort could be had to the courts. Until the Commission has made its finding and has entered its order so that an appeal may be taken to the district court as provided in section 490A.13, Code, the jurisdiction of the Commission is exclusive. In the case now before us this administrative remedy had not been exhausted and the district court was without jurisdiction to consider the controversy.

        Elk Run Tel. Co. v. Gen. Tel. Co. of Iowa, 160 N.W.2d 311, 315 (Iowa 1968). The Commerce Commission was the predecessor to the IUB. See Teleconnect, 508 N.W.2d at 646. Thus, our case law and statutory law require the IUB to hear the dispute first, and then allows the district court to review the decisions of the IUB. See Iowa Code §§ 17A.19(1), 476.13; Teleconnect, 508 N.W.2d at 647; Elk Run, 160 N.W.2d at 315. As we have already determined, the failure to follow this procedure divests the court of its particular authority to hear the case. It does not create a situation where the district court lacks subject matter jurisdiction.
      We additionally note the district court in this case, in ruling on Duckett’s motion to dismiss, held the IUB did not have primary enforcement authority. It recognized the filed tariff doctrine applied, but that in this case it did not provide the IUB with primary enforcement authority because any remedy the IUB could provide would be inadequate. We need not determine the propriety of this decision because we ultimately find Duckett waived any jurisdictional argument.

      . It does not matter that Duckett made a rule 1.904(2) motion to enlarge or amend the findings of the district court after its rulings on the motions for summary judgment. This motion, which also asserted the court lacked jurisdiction/authority, may have helped preserve the issue for appeal, but it does not mean Duckett made the jurisdictional/authority argument during the summary judgment proceedings (and thus “timely”). While a rule 1.904(2) motion presents a claim that a district court overlooked an issue it now needs to rule on, that is not the case here where the district court could not have overlooked this issue because the parties never brought it up until after the summary judgment rulings.

      . We need not address Duckett's argument that public policy considerations forbid Alli-ant from recovering indemnity for its own negligence. The tariff does not permit Alliant to do so, and Alliant was not seeking indemnity under such circumstances.

      . Our law additionally requires that Alliant, as a settling party seeking indemnification, prove the settlement was reasonable. See Ke-Wash, 111 N.W.2d at 11. The district court concluded the reasonableness of Alliant’s settlement was undisputed. Duckett makes no argument on appeal that the settlement was unreasonable.

      . The district court permitted Alliant to seek further indemnification for expenses or costs related to the litigation as a result of its ruling. The record is unclear whether Alliant has done so. While we recognize such expenses or costs are included in section 5.12, the recovery of them requires the same showing Alliant must make to recover its actual settlement.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    Devin W. ROWLING, Appellant, v. Jane Louise SIMS, Appellee.
    No. 05-0947.
    Supreme Court of Iowa.
    June 8, 2007.

      Thomas G. Ross of Thomas G. Ross Law Office, Des Moines, for appellant.
    Kenneth R. Munro of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.
   WIGGINS, Justice.

In this case we must decide if substantial evidence supports the district court’s instruction on the impossibility category of the legal excuse doctrine. Because we find substantial evidence does not support the giving of the instruction, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for a new trial.

On December 19, 2000, between 4:30 p.m. and 5:30 p.m. a car accident occurred between Devin Rowling and Jane Louise Sims. At the time of the accident it was not snowing, but there was snow on the ground.

Rowling was driving his vehicle eastbound on Grand Avenue in Des Moines. Grand Avenue is a four-lane road, running east and west, with two lanes for eastbound traffic and two lanes for westbound traffic. Rowling was driving the speed limit in the inside eastbound lane, the lane nearest the center line.

At the same time Sims was in her vehicle in a private driveway at 2130 Grand Avenue, facing north, waiting to cross traffic, and turn westbound onto Grand Avenue. The driveway is approximately thirty-feet wide. Between the driveway and the street there is a sidewalk. On the west side of the driveway between the sidewalk and the traveled portion of the road is a parking lane, which allows for two to three cars to parallel park along the south side of Grand Avenue.

Sims acknowledged from her vantage point she could clearly see traffic approaching from the east. To the west, however, Sims claimed a pile of snow hindered her view of the eastbound Grand Avenue traffic. She testified this pile was located in the parallel parking lane. Sims decided the best way for her to see any eastbound traffic was to look up the sidewalk area for headlights coming from the west.

Once Sims perceived headlights were not coming from the west, she pulled onto Grand Avenue. As Sims pulled into traffic, Rowling testified she stopped at the yellow center line. Rowling, traveling in the inside eastbound lane, attempted to avoid Sims’s vehicle, but he “remember[ed] somebody being kind of in [his] blind spot on [his] right-hand side. So [he] didn’t want to turn into their way as well.” Rowling was unable to stop his vehicle and struck Sims’s vehicle on the driver’s side.

Rowling brought a negligence action against Sims alleging Sims did not yield the right-of-way and failed to operate her vehicle in a safe manner. The case proceeded to a jury trial. The court instructed the jury on Sims’s duty in instruction twelve as follows:

The driver of a vehicle about to enter a street from a driveway shall stop the vehicle immediately before driving onto the street and shall yield the right of way to other approaching vehicles that are so close as to pose a danger. Then the driver, having yielded, may proceed to cautiously and carefully enter the street.
A violation of this law is negligence.

The court gave the following instruction on legal excuse:

The defendant claims that if you find that if she violated the law in operating her motor vehicle by failing to yield to oncoming traffic when entering a street from a driveway that she had a legal excuse for doing so because she could not see oncoming traffic and, therefore, was not negligent in this respect. “Legal excuse” means someone seeks to avoid the consequences of her conduct by justifying acts which would otherwise be considered negligent. The burden is upon the defendant to establish as a legal excuse that it was impossible for her to yield to oncoming traffic because she could not see oncoming traffic.
If you find that the defendant did violate the law by failing to yield to oncoming traffic as defined in Instruction No. 12, and that she has established that it was impossible for her to do so, then you should find that the defendant was not negligent for failing to yield to oncoming traffic.

Rowling objected to the instruction claiming the evidence did not support the giving of this instruction. The district court overruled Rowling’s objection.

The jury answered the question: “Was the defendant at fault?” in the negative. Accordingly, the court entered a judgment dismissing Rowling’s petition and assessing the costs against him.

Rowling moved for a judgment notwithstanding the verdict and new trial or conditional new trial regarding the jury instruction on legal excuse. The district court denied both motions.

Rowling appealed and we transferred the case to our court of appeals. The court of appeals, with one judge dissenting, found the legal excuse jury instruction was a correct statement of the law and was substantially supported by the evidence. Rowling petitioned for further review, which we granted.

We review Rowling’s claim that the legal excuse jury instruction was not supported by the evidence for correction of errors at law. See Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006) (noting the two standards for review of jury instructions: “We review a claim that the court gave an instruction that was not supported by the evidence for correction of errors of law. We review the related claim that the trial court should have given the defendant’s requested instructions for an abuse of discretion.” (Internal citation omitted.)). When reviewing a claim that an instruction was not supported by substantial evidence, we view the evidence in the light most favorable to the party seeking the instruction. Franklin v. Andrews, 595 N.W.2d 488, 489 (Iowa 1999).

Instruction twelve correctly instructed the jury on Sims’s duty to stop or yield before she entered Grand Avenue from the private driveway. Iowa Code § 321.353(2) (1999). A violation of a statutory duty constitutes negligence per se, absent a legal excuse. Jones v. Blair, 387 N.W.2d 349, 352 (Iowa 1986) (citing Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554 (1932)). The legal excuse doctrine allows a person to avoid the consequences of a particular act or type of conduct by showing justification for acts that otherwise would be considered negligent. Meyer v. City of Des Moines, 475 N.W.2d 181, 185 (Iowa 1991); Jones, 387 N.W.2d at 352.

There are four categories of legal excuse:

(1) anything that would make it impossible to comply with the statute or ordinance;
(2) anything over which the driver has no control which places the driver’s motor vehicle in a position contrary to the provisions of the statute or ordinance;
(3) where the driver of the motor vehicle is confronted by an emergency not of the driver’s own making, and by reason of such an emergency, the driver fails to obey the statute; and
(4) where a statute specifically provides an excuse or exception.

Meyer, 475 N.W.2d at 185.

A jury should only be instructed on the category of legal excuse supported by the evidence. See Jones, 387 N.W.2d at 353-54. In this case Sims claims the evidence supported the court giving the first category of the legal excuse doctrine— impossibility. Sims argues she was legally excused from the duty imposed on her by section 321.353 because the pile of snow located in the parallel parking lane west of the driveway made it impossible for her to yield the right-of-way.

We do not give a narrow, literal construction to “impossible” as used in the legal excuse doctrine. Meyer, 475 N.W.2d at 186. Instead, impossible under the doctrine of legal excuse means “not reasonably practicable.” Id. Our review of the record reveals there was nothing in the facts of this case to make it not reasonably practicable for Sims to yield the right-of-way to Rowling.

Even though Sims claims her vision was obstructed by the pile of snow, she had a duty under the statute to stop, look, and listen in order to determine whether there was traffic on Grand Avenue before she pulled out of the driveway. Rubel v. Hoffman, 229 N.W.2d 261, 265 (Iowa 1975) (stating it was the defendant’s statutory duty under section 321.353 “to stop, look and listen in order to ascertain whether there was oncoming traffic before entering the public highway”). There is nothing in the record that required Sims to move from a place of safety and to pull onto Grand Avenue. Instead of blindly pulling onto Grand Avenue there were other reasonably practicable actions Sims could have taken to comply with her duty to yield the right-of-way.

First, she could have backed up to a distance sufficient to see the eastbound traffic, where the pile of snow did not obstruct her view. Second, she could have positioned her vehicle on the far right side of the thirty-foot-wide driveway giving her a better view of the eastbound traffic. Third, she could have inched her vehicle into the traveled portion of the road until she had an adequate view of the eastbound traffic. Under the specific facts of this case a collision would not have occurred because Rowling’s vehicle was traveling in the center lane. Finally, she could have made a right-hand turn. Although these possible alternatives may seem burdensome on Sims, they are not so burdensome when viewed from the perspective of an innocent person who may be injured by Sims’s choice of blindly entering a busy four-lane street at rush hour.

Therefore, substantial evidence did not support the district court’s legal excuse instruction. Accordingly, we must vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for a new trial.

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


author: /s/Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Elizabeth Jane SUNDBY, a Minnesota Attorney, Registration No. 206283.
    No. C5-02-1203.
    Supreme Court of Minnesota.
    June 12, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition and two supplementary petitions for disciplinary action alleging that respondent Elizabeth Jane Sundby committed professional misconduct warranting public discipline, namely, that respondent failed to maintain the required books and records for her trust account, failed to list a claim in a bankruptcy proceeding, failed to pay a settlement and a judgment entered against her as part of the bankruptcy proceeding, and failed to cooperate with the Director’s investigation of a client complaint, in violation of Rules 1.15(h), 8.1(a)(3), 3.4(c), and 8.4(c) and (d), Minnesota Rules of Professional Conduct, as those rules read prior to October 1, 2005 and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). On April 4, 2003, we temporarily suspended respondent from the practice of law pending the completion of the disciplinary proceedings.

Respondent also engaged in unprofessional conduct in North Dakota warranting public discipline, namely, that she failed to diligently pursue multiple representations, failed to communicate with her clients, failed to safekeep client property, and improperly terminated a representation, in violation of North Dakota Professional Responsibility Rules 1.3, 1.4, 1.5(b), ánd 1.16(e). On July 18, 2005, the North Dakota Supreme Court suspended respondent for six months and one day, retroactive to December 11, 2002, the date of her interim suspension in North Dakota. Respondent must apply for reinstatement under the North Dakota Rules for Lawyers Discipline.

Respondent admits her conduct violated the Minnesota Rules of Professional Conduct, waives her procedural rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an indefinite suspension retroactive to the date of respondent’s temporary suspension on April 4, 2003.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Elizabeth Jane Sundby is indefinitely suspended from the practice of law, retroactive to the date of respondent’s temporary suspension on April 4, 2003. The reinstatement hearing provided for by Rule 18, RLPR, is not waived. Respondent shall pay $900 in costs and $27 in disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Kenneth Anthony NEAL, a Minnesota Attorney, Registration No. 329782.
    No. A07-891.
    Supreme Court of Minnesota.
    June 12, 2007.
   ORDER

The Director has filed a petition for disciplinary action alleging that respondent Kenneth Anthony Neal committed professional misconduct warranting public discipline, namely, failing to deposit funds given to him on behalf of a client into a trust account and misappropriating those funds; failing to inform the law firm that employed him and agreed to represent the client pro bono of the receipt of funds from the client; neglecting the client’s claims; failing to notify the client of the dismissal of her suit against a contractor; entering into a business transaction with the client without complying with the disclosure and consent requirements of Rule 1.8(a), Minnesota Rules of Professional Conduct (MRPC); failing to seek and obtain the client’s consent after consultation to a conflict of interest arising out of his serving as her attorney in her claims against a contractor while at the same time holding a financial interest in a company providing mold remediation services to the property that was the subject of the claims, in violation of Rules 1.3, 1.4, 1.7, 1.8(a), 1.15, 3.2, 8.4(c), and 8.4(d), MRPC, as those rules read prior to October 1, 2005. In addition, the petition alleges that respondent engaged in the unauthorized practice of law in another state in a gestational contract matter and identified himself as a specialist on his letterhead without including a statement that he is not certified as a specialist, in violation of Rules 5.5(a) and 7.4(d), MRPC, as those rules read after October 1, 2005.

Respondent admits his conduct violated the Rules of Professional Conduct and waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR). Respondent has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an 18-month suspension, effective upon the date of filing of this order. The parties recommend that the reinstatement hearing provided for in Rule 18, RLPR, not be waived, but that respondent be permitted to commence the reinstatement process by filing a petition for reinstatement after one year from the date of filing of this order. Finally, the parties recommend that reinstatement be further conditioned upon compliance with Rule 26, RLPR, successful completion of the professional responsibility portion of the bar examination under Rule 18(e), RLPR, and satisfaction of continuing legal education requirements under Rule 18(e), RLPR.

The court has independently reviewed the file and approves of the stipulated discipline.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Kenneth Anthony Neal is indefinitely suspended from the practice of law for a minimum of 18 months, subject to the terms and conditions set forth above. Respondent shall pay the sum of $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: GILDEA, Justice.

text:
    In re the ESTATE OF Howard C. KINNEY, Deceased.
    No. A05-1794.
    Supreme Court of Minnesota.
    June 14, 2007.

      Mary R. Vasaly, Dawn C. Van Tassel, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN, for Appellant.
    David Adler-Rephan, North Oaks, MN, for Respondent.
   OPINION

GILDEA, Justice.

James H. Kinney (James), as personal representative of the estate of Howard C. Kinney (Howard), appeals from the district court’s order on summary judgment that the antenuptial agreement between decedent Howard and Lillian Kinney (Lillian) is invalid. James argues that the court incorrectly concluded that an “opportunity to consult with independent counsel” requirement exists under common law, and the court therefore erred when it invalidated the antenuptial agreement. The court of appeals affirmed. In re Estate of Kinney, No. A05-1794, 2006 WL 1806386 (Minn.App. July 3, 2006). We granted James’s petition for review and reverse and remand to the district court for further proceedings. We hold that although the opportunity to consult with independent counsel about an antenuptial agreement is a relevant factor in determining whether the agreement is enforceable under common law, it is not required for the antenuptial agreement to be enforceable.

Howard’s first wife, Mary Kinney (Mary), died in 1967, leaving an estate to Howard and the couple’s three children. Howard received a one-third interest in farm property in Illinois and Indiana, and the children shared the remaining two-thirds interest in the property. After he began dating Lillian, Howard asked his children for a life estate in their two-thirds interest in the farm property. The children agreed, and in exchange, Howard agreed to draft a will giving his children everything he had received from Mary. Additionally, Howard told his children that if he ever remarried he would have a strong antenuptial agreement that would leave everything he had to them.

Howard and Lillian were married on August 29, 1969, when Lillian was 45 years old and Howard was 55 years old. At that time, Lillian was employed at the Prudential Insurance Company, and had been so employed since 1944. She was promoted to assistant manager in 1949 and then to manager in 1954. As manager, Lillian’s job duties included hiring and training new employees, taking payments from customers and balancing accounts, and occasionally drafting letters to clients. She had also taken classes at the College of St. Catherine before her marriage to Howard.

The morning of their wedding, Howard drove to Lillian’s apartment, picked her up, and took her to St. Paul. According to Lillian, Howard said he was taking her downtown to “sign some papers” at Howard’s attorney’s office. Because Howard is deceased and the attorney who drafted the antenuptial agreement cannot be located, only Lillian and the agreement itself provide evidence as to what happened during the August 29 meeting.

James contends that Lillian knew about the antenuptial agreement “quite a ways” before the day of the wedding. The district court found that “[t]he evidence tends to show that Lillian Kinney discussed the general terms of the antenuptial contract with the decedent prior to the wedding.” The court also found, however, that “[tjhere is no evidence to rebut Lillian Kinney’s deposition that the first time she saw the written antenuptial contract was on the day of her wedding.”

In her deposition testimony, Lillian testified that she read through the antenup-tial agreement completely. A clause in the agreement states that “Lillian M. Seiler acknowledges * * * that she has given due consideration to [Howard’s net worth] and has conferred with her family as to same, and that she is entering into this agreement freely and with a full understanding of its provisions.” Lillian testified in her deposition, however, that she “didn’t understand all of [the agreement].” In her Deposition Correction Sheet, Lillian stated that she “did not understand the following legal terms: dower, statutory allowance in lieu of dower, distributive share, right of election against a Will, descent of homestead, widow’s support or other widow’s allowances.”

Lillian also testified in her deposition that she felt she was under duress because the agreement was presented to her on the day of her wedding, when she was “flustered” and “had other things on [her] mind.” Lillian stated, however, that she did not feel threatened, that Howard never insisted that Lillian “must” sign the agreement, and that Howard never said “Sign this or I’m not marrying you.” Instead, she indicated that Howard said that he “need[ed]” her to sign the agreement. In her Deposition Correction Sheet, Lillian said that she “believed that in order * ⅝ * to get married [she] had to sign the document.”

Additionally, Lillian stated in her responses to interrogatories that on August 29, 1969, she was never asked if she wanted an attorney, she “never thought about consulting with an attorney,” and neither Howard nor his attorney suggested that she should consult with an attorney. She also stated that she “would not have known who to consult with even if [she] had thought of doing so.”

Lillian signed the antenuptial agreement at the August 29, 1969, meeting. In addition to the clause indicating that Lillian entered into the agreement “freely and with a full understanding of its provisions,” the agreement includes the following provisions:

WHEREAS, Lillian M. Seiler has agreed to accept the provisions of this agreement in lieu of all marital rights in the property now owned or hereafter acquired by Howard C. Kinney, or in his estate upon his demise, which she would otherwise acquire as the surviving spouse of Howard C. Kinney, and whereas, Howard C. Kinney has agreed that he will take nothing from the estate of Lillian M. Seiler.

IT IS THEREFORE AGREED:

1. Lillian M. Seiler hereby waives and releases all rights including, but not limited to, dower, statutory allowances in lieu of dower, distributive share, right of election against a will, descent of homestead, widow’s support or other widow’s allowances, or otherwise, which she may acquire by reason of her marriage to Howard C. Kinney in any property owned by him at the time, or by his estate upon his death.

In another clause in the agreement, Howard agreed to obtain an endorsement to name Lillian the sole beneficiary of a $10,000 life insurance policy. The agreement was reciprocal in the sense that Howard also agreed to give up any rights he would have as surviving spouse to Lillian’s “property and estate.”

Lillian and Howard were married 34 years until Howard’s death in 2004. James was appointed executor of the estate. Thereafter, Lillian filed petitions to allow for selection of personal property, for family maintenance, for election of homestead rights, and for an elective share of Howard’s augmented estate pursuant to Minn.Stat. § 524.2-202(a) (2006). James responded by filing a petition for enforcement of the antenuptial agreement, two petitions for the sale of real property that Howard owned in St. Paul, Minnesota, and petitions objecting to Lillian’s petitions. The district court ordered a separate trial on the petition for enforcement of the antenuptial agreement, noting that the “issue is dispositive of the action, and may limit or remove the need for a trial of the other petitions filed in this action.”

The parties filed cross-motions for summary judgment. The district court, on the recommendation of a probate court referee, concluded that the antenuptial agreement is governed by common law and that James, as the proponent of the antenuptial agreement, had the burden “to prove full disclosure of assets and knowledge of right to independent legal counsel.” The court then found that Lillian “had sufficient knowledge of the extent of decedent’s assets prior to signing” the agreement, and that there was sufficient consideration for the agreement. The court found, however, that Lillian was not provided with the opportunity to consult with independent legal counsel before signing the agreement, and therefore concluded that “[d]ue to the lack of knowledge of the right to consult with independent legal counsel,” the antenuptial agreement was invalid. The district court therefore granted Lillian’s motion for summary judgment. The court of appeals affirmed, concluding that “[t]he district court correctly applied the law as it existed at the time the antenuptial agreement was executed.” Kinney, 2006 WL 1806386, at *3.

I.

When reviewing a district court’s decision to grant summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Isles Wellness, Inc. v. Progressive N. Ins. Co., 703 N.W.2d 513, 516 (Minn.2005). We view the evidence in the light most favorable to the party against whom judgment was granted. Id.

Because the antenuptial agreement between Howard and Lillian was executed in 1969, the agreement is governed by common law rather than by Minn.Stat. § 519.11, subd. 6 (2006) (stating that the statute “shall apply to all antenuptial contracts and settlements executed on or after August 1, 1979”). The issue presented in this case is whether, in order to conclude that an antenuptial agreement is valid under common law, a court must find that each party to the agreement had the opportunity to consult with independent counsel.

Under common law, we analyze antenuptial agreements to determine whether they are “equitably and fairly made.” See Gartner v. Gartner, 246 Minn. 319, 323, 74 N.W.2d 809, 812-13 (1956). Our common law cases indicate that we examine a number of factors in making this determination.

For instance, in Slingerland v. Slinger-land, we addressed three questions: (1) whether the agreement was the product of fraud, undue influence, or duress; (2) whether the consideration was adequate; and (3) whether the spouse challenging the agreement knew “the extent, character, and value of [her husband’s] property and the nature and extent of her rights as his wife and widow.” 115 Minn. 270, 273-75, 132 N.W. 326, 327-28 (1911). We concluded that the antenuptial agreement at issue in Slingerland was unenforceable and that “the contract was not her own free act, but in reality the act of defendant done by her pursuant to his will.” Id. at 274, 132 N.W. at 328. We reached that conclusion after considering a number of factors. We noted that the husband was a “wealthy and successful man of mature years,” in comparison to his wife, who was “a young girl” who had become pregnant as a result of “illicit relations” with him. Id. at 274, 132 N.W. at 328. We also noted that the wife “kn[ew] he [was] rich, but [did] not know the extent of his wealth.” Id. at 274, 132 N.W. at 328. We further noted that while the husband had personal counsel who informed the wife that she was giving up her rights in the husband’s estate, the wife had “no lawyer or friend to advise her” and she was “not informed as to the nature or extent of the rights she surrender[ed].” Id. at 274,132 N.W. at 328.

In Welsh v. Welsh, 150 Minn. 23, 184 N.W. 38 (1921), we said that antenuptial agreements “are to be sustained if they are free from fraud, violative of no statute, are equitably and fairly made and are fair and reasonable in their terms.” Id. at 25, 184 N.W. at 38. We concluded that the antenuptial agreement in Welsh was invalid after consideration of “all the[ ] facts,” including the wife’s general knowledge of the amount of property the husband possessed, the “entire absence of finding that [the wife] was at all advised as to the nature and extent of her rights as his wife and widow,” and the husband’s failure to make any provision for his spouse. Id. at 25-26,184 N.W. at 39.

In Stanger v. Stanger, 152 Minn. 489, 189 N.W. 402 (1922), we considered whether there was a confidential relationship between the parties, whether there was full and fair disclosure, and whether the wife understood her rights. Id. at 491,189 N.W. at 402-03. We noted the following facts:

Nothing was said to the plaintiff about her legal rights in his property in the event of marriage. She claims that she thought she was to have title to the homestead property. She had no counsel. The plaintiff came from Germany when she was 18, and speaks English indifferently. She is without business experience. She was not a match for her husband in making such an agreement, and, as before said, had no counsel while he had.

Id. at 491, 189 N.W. at 402-03. We concluded “that the question was one of fact for the trial court * * * whether the contract was equitably and fairly made,” and, in light of the facts mentioned above, we affirmed the trial court’s decision in favor of the spouse challenging the agreement. Id. at 491,189 N.W. at 403.

In Gartner, we concluded that the evidence supported the district court’s findings that the spouse challenging the agreement knew the extent and nature of her husband’s property, and that she “was fully informed as to what her rights would be as a widow and as to the nature and effect of the antenuptial agreement with respect to those rights.” 246 Minn. at 325, 74 N.W.2d at 814. In reaching that conclusion, we noted that after the husband had initially consulted with an attorney, both the husband and the wife went to the attorney’s office where the attorney discussed the parties’ respective property rights and read a draft of the antenuptial agreement to them. Id. at 325, 74 N.W.2d at 814. We also noted that the spouse challenging the agreement “was told by the attorney what her rights would be as a widow absent the agreement.” Id. at 325, 74 N.W.2d at 814. We further noted that the spouse challenging the agreement “was not entirely inexperienced because some years before she had helped probate her first husband’s estate.” Id. at 325-26, 74 N.W.2d at 814.

In In re Estate of Jeurissen, 281 Minn. 240, 161 N.W.2d 324 (1968), we cited Gart-ner for the proposition that an antenuptial agreement should be enforced whenever it is equitably and fairly made. Jeurissen, 281 Minn. at 243, 161 N.W.2d at 325. We held that, in spite of the wife’s evidence that she did not fully understand the effect of the antenuptial agreement, the agreement was valid because the wife was “a reasonably intelligent and experienced person even though her formal education was not extensive” and because “she probably recognized and respected a disposition on the part of her husband, 67 at the time of the marriage, to preserve the bulk of his estate for [his children].” Id. at 244, 161 N.W.2d at 326. In so holding, we noted that the husband had consulted with an attorney, and that both parties appeared at the attorney’s office where “they discussed the property held by each, the nature of the rights of each in the property of the other in the event of marriage, and the terms of a proposed antenuptial agreement.” 281 Minn. at 242, 161 N.W.2d at 325.

And, in Hafner v. Hafner, 295 N.W.2d 567 (Minn.1980), we said that antenuptial agreements are “uniformly sustained when free from fraud or not expressly prohibited by some statute.” Id. at 571 (quotation marks omitted). We upheld the validity of an antenuptial agreement after stating that “although appellant was not told of her rights in the absence of an antenuptial contract, she was aware of, and freely and voluntarily acceded to, respondent’s desire to leave his property to his children,” and that “the record discloses that appellant was a reasonably intelligent and experienced individual, even though she [had] a limited formal education.” Id. at 571-72.

These cases demonstrate that under common law, when a confidential or fiduciary relationship between the parties exists, courts should determine whether the antenuptial agreement was “equitably and fairly made” by considering (1) whether there was fair and full disclosure of the parties’ assets; (2) whether the agreement was supported by adequate consideration; (3) whether both parties had knowledge of the material particulars of the agreement and of how those provisions impacted the parties’ rights in the absence of the agreement; and (4) whether the agreement was procured by an abuse of fiduciary relations, undue influence, or duress. As the foregoing cases illustrate, the opportunity to consult with independent counsel is a relevant factor in the analysis. But in our review of the common law cases we find no indication that such an opportunity is a requirement for a valid antenuptial agreement under common law.

Lillian cites two cases in support of the court of appeals holding that there is such a requirement: In re Estate of Serbus, 324 N.W.2d 381 (Minn.1982), and McKee-Johnson v. Johnson, 444 N.W.2d 259 (Minn.1989). Both of these cases were decided after Minn.Stat. § 519.11 was enacted, and we acknowledge that there is language in each case that could be read to support Lillian’s argument.

For example, in Serbus, we said that “[a]t common law, the burden of proving full disclosure of assets and knowledge of right to independent legal counsel rests with the proponent of the antenuptial contract.” 324 N.W.2d at 385 (emphasis added). We based this statement on two grounds. First, we said that Minn.Stat. § 519.11, which requires “the parties [to] have had an opportunity to consult with legal counsel of their own choice,” was a codification of the common law requirements for a valid antenuptial agreement. We did not trace or explain the common law basis for such a requirement, and as our review of the cases above illustrates, there was no such requirement established by our cases. Second, we said that “[u]n-der both Slingerland and Minn.Stat. § 519.11, subd. 1, each party to an ante-nuptial contract must * * * have an opportunity to consult with an attorney.” Serbus, 324 N.W.2d at 386. Although we noted in Slingerland that there was no “lawyer or friend” to advise the challenging spouse, that was but one of several factors we considered in concluding the agreement was not equitable and fair. 115 Minn. at 274-75, 132 N.W. at 328.

In McKee-Johnson, we cited Serbus for the proposition that “[u]nder the common law, the proponent of the agreement had the burden of demonstrating the procedural fairness of the agreement at its inception.” McKee-Johnson, 444 N.W.2d at 265. And we noted that “implicit in the procedural fairness analysis is the requirement that each party to an antenuptial contract has unrestrained access to advice from independent counsel.” Id. at 266 (emphasis added). Serbus was the only legal authority cited in support of these statements.

We conclude that McKee-Johnson and Serbus do not dictate the outcome of this case. McKee-Johnson was a case in which the antenuptial agreement at issue was governed by Minn.Stat. § 519.11. McKee-Johnson, 444 N.W.2d at 262-63. But we looked to common law “to determine whether the provisions of th[e] [antenuptial] contract relating to ‘after acquired’ property are valid and enforceable.” Id. at 265. We concluded that the agreement was procedurally fair because there was adequate disclosure and because the party challenging the agreement had waived her right to “unrestrained access to advice from independent counsel.” Id. at 265-66. In Serbus we concluded that the spouse challenging the agreement knew the extent of her husband’s property and that she had the opportunity to consult with independent counsel because she chose the attorney who drafted the agreement for both parties. 324 N.W.2d at 386. Thus, we were not presented in either McKee-Johnson or Serbus with the issue presented here — whether an antenuptial agreement governed by common law is per se invalid if one of the parties did not have an opportunity to consult with independent counsel.

As discussed above, however, while the opportunity to consult with independent counsel has often been a relevant factor that courts considered when assessing whether the agreement was fair and equitable, we conclude that the opportunity to consult with independent counsel is not a sine qua non under common law. To the extent that McKee-Johnson and Serbus could be read to indicate otherwise, they are overruled on that issue.

We hold that the opportunity to consult with independent counsel is not a requirement, but is one of several relevant factors that courts may consider when determining whether an antenuptial agreement is fair and equitable and therefore enforceable under common law. We reverse the court of appeals’ decision and conclude that the district court erred when it granted Lillian’s motion for summary judgment and ruled that the antenuptial agreement is invalid.

II.

James asks us to conclude not only that the district court erred when it granted Lillian’s motion for summary judgment, but also that the district court erred in not granting his motion for summary judgment, which argued that the antenuptial agreement is valid and enforceable. We must construe the evidence in the light most favorable to Lillian when assessing whether James’s motion for summary judgment should have been granted. See Isles Wellness, Inc., 703 N.W.2d at 516. Based on the record before us, we cannot say that the agreement was fair and equitable as a matter of law and that James is entitled to summary judgment. When we construe the evidence in the light most favorable to Lillian, we are faced with factual disputes as to whether Lillian had knowledge of her rights in the absence of the agreement and how the agreement affected those rights, and whether the agreement was the product of duress or undue influence. Therefore, we remand this case for further proceedings to determine if the antenuptial agreement is enforceable.

III.

Because we are remanding, we also take this opportunity to provide guidance on the burden of proof that should apply in this type of case. In Serbus, we concluded that “[a]t common law, the burden of proving full disclosure of assets and knowledge of right to independent legal counsel rests with the proponent of the antenuptial contract.” 324 N.W.2d at 385. We reached that conclusion, however, only after we found that the antenuptial agreement in that case was not supported by sufficient consideration. Because of that finding of inadequate consideration, we concluded:

Thus, there is a presumption of fraud under Slingerland. In such a situation at common law, the burden rested upon the party who retained the greater interest “to show there was no fraud or concealment, and that [the other party] knew the extent, character, and value of his property and the nature and extent of her rights as his wife and widow.”

Id. at 385 (citing Slingerland, 115 Minn. at 275, 132 N.W. at 328) (emphasis added). The determination that the consideration was inadequate was a precondition to our conclusion in Serbus that the burden of proof was on the proponent of the ante-nuptial agreement.

A review of other common law cases confirms that inadequate consideration is a precondition for placing the burden of proof on the proponent of an antenuptial agreement. For example, in Gartner, we said that “[wjhere the parties stand in a confidential relation to each other, and there is an absence or inadequacy of con sideration, a presumption of fraud arises to cast upon the party seeking to uphold the contract the burden of showing that he procured the contractual benefits righteously.” Gartner, 246 Minn. at 323-24, 74 N.W.2d at 813 (emphasis added). Additionally, in Slingerland, we said:

[M]ere inadequacy of consideration alone is not generally a ground for setting aside a contract. But it shows the unconscionable character of the contract, and raises a presumption of fraud, which may be overcome by evidence. The relations between the parties were confidential. Clearly the burden rested upon defendant to overcome this presumption, to show there was no fraud or concealment, and that plaintiff knew the extent, character, and value of his property and the nature and extent of her rights as his wife and widow.

115 Minn. at 274-75, 132 N.W. at 328 (emphasis added); see also Welsh, 150 Minn. at 25, 184 N.W. at 39 (“The entire absence of provision for plaintiff has been held * * * to impose upon the husband the burden of showing, if he would sustain the contract, that there was no fraud or concealment, and that the prospective wife knew the extent, character and value of the prospective husband’s property and the nature and extent of her rights as his wife and widow.”); In re Malchow’s Estate, 143 Minn. 53, 59, 172 N.W. 915, 917 (1919) (“In addition to inadequacy of consideration, there must be a confidential relationship between the parties before fraud will be inferred.”).

We therefore conclude that under common law the burden of proof is on the proponent of an antenuptial agreement when (1) the parties stand in a confidential relationship and (2) the agreement is not supported by adequate consideration. But when, as in this case, the parties stand in a confidential relationship and the district court finds that the antenuptial agreement is supported by adequate consideration, we conclude that under common law the burden is on the party challenging the agreement. This conclusion is consistent with our previous statements that ante-nuptial agreements are treated favorably under the common law of this state. E.g., Gartner, 246 Minn. at 323, 74 N.W.2d at 812-13 (“Antenuptial contracts in anticipation of marriage, fixing the rights which the survivor shall have in the property of the other after his or her death, are not against public policy but are regarded with favor as conducive to the welfare of the parties making them, and these contracts will be sustained whenever equitably and fairly made.”). Placing the burden of proof on the party challenging the agreement is also consistent with general principles of contract law. See, e.g., Hafner v. Schmitz, 215 Minn. 245, 250, 9 N.W.2d 713, 715 (1943) (“[Undue] influence must be such that it overcomes the volition of the person influenced. And the burden of proof is upon the party asserting it.”).

In this case, the district court found that there was sufficient consideration for the antenuptial agreement. Thus, the burden of proof for the remaining factors should not be on James as the proponent of the antenuptial agreement, but on Lillian as the party challenging that agreement.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

      . The "papers” were the antenuptial agreement that is the subject of this litigation.

      . This policy was worth about $70,000 at the time of Howard's death.

      . Based on the length of their marriage, Lillian’s share under the statute is 50 percent of the estate. See Minn.Stat. § 524.2-202(a) ("The surviving spouse of a decedent who dies domiciled in this state has a right of election, * * * to take an elective-share amount ⅜ * * determined by the length of time the spouse and the decedent were married to each other * * *.").

      .The district court granted one of the petitions for the sale of the real property that Howard owned in St. Paul. It does not appear, however, that the court took any action on the other petition, relating to the homestead property.

      . Minnesota Statutes § 519.11, subd. 1 (2006), states that “an antenuptial contract * * * shall be valid and enforceable if (a) there is a full and fair disclosure of the earnings and property of each party, and (b) the parties have had an opportunity to consult with legal counsel of their own choice.”

      . The district court used the phrases "opportunity to consult with independent legal counsel” and "knowledge of the right to consult with independent legal counsel.” Lillian also sometimes refers to "knowledge of the right to independent counsel.” For the sake of consistency, we refer collectively to the opportunity to consult with independent legal counsel and knowledge of the right to independent counsel as "the opportunity to consult with independent counsel.”

      . A confidential or fiduciary relationship between the parties to an antenuptial agreement is usually presumed. See, e.g., In re Malchow's Estate, 143 Minn. 53, 59, 172 N.W. 915, 917 (1919). But see Malchow, 143 Minn. at 59, 172 N.W. at 917 (concluding that there was no confidential relationship because the marriage was "of convenience” and "of a purely business character,” Malchow and his wife were "comparative strangers,” and Mal-chow only "wanted a housekeeper”). The parties in this case have not contested that there was a confidential relationship between Lillian and Howard.

      . In McKee-Johnson, we said that "[u]nder the common law, the proponent of the agreement had the burden of demonstrating the procedural fairness of the agreement at its inception.” 444 N.W.2d at 265. But we cited only Serbus in support of this statement. We also said that Minn.Stat. § 519.11, "unlike the common law which had placed on the proponent of the agreement the burden of establishing procedural fairness, shifted the burden to the party contesting the validity of the agreement to establish lack of the statutorily defined procedural fairness requirements.” McKee-Johnson, 444 N.W.2d at 263. This statement also appears to have been based on our ruling in Serbus.

      . Lillian acknowledges the district court’s finding that the agreement was supported by adequate consideration, but argues in her brief that the agreement was substantively unfair. We decline to address the substantive fairness issue because we granted review on the more narrow issue of whether an ante-nuptial agreement is invalid as a matter of law when the party challenging the agreement did not have the opportunity to consult with independent counsel.