author: CARTER, Justice.

text:
    Lyle FLOYD, Appellee, v. QUAKER OATS, Appellant.
    No. 00-1618.
    Supreme Court of Iowa.
    June 12, 2002.

      Mark A. Woollums and Jean Dickson Feeney of Betty, Neuman & McMahon, L.L.P., Davenport, for appellant.
    Pete Leehey and Melissa M. Harbaugh Adams of Wertz & Leehey, P.C., Cedar Rapids, for appellee.
   CARTER, Justice.

Quaker Oats, the employer of Lyle Floyd, appeals from a decision on judicial review, which applied the full-responsibility rule in Floyd’s workers’ compensation claim involving a scheduled injury. After reviewing the record and considering the arguments presented, we reverse the judgment of the district court.

While working at Quaker Oats on September 3, 1993, Floyd slipped, caught himself from falling, and twisted his knee. He immediately reported the injury to his employer. At his employer’s request, claimant was evaluated by a general practitioner on October 8, 1993. That physician recommended consultation with Dr. Coates, an orthopaedic surgeon. Dr. Coates concluded that claimant had a full range of motion and no instability in the leg at that time. X-rays of the knee revealed minimal spurring of the superior and inferior aspects of the patella. He concluded that the discomfort that claimant reported was the probable result of a torn or partially torn medial meniscus.

On October 14, 1993, Dr. Coates reported that x-rays revealed the knee to be within limits of normal except for some early arthritic changes. He continued to diagnose the condition as a medial meniscus tear, which should heal. On May 10, 1994, Dr. Coates reported that claimant continued to experience pain along the medial joint line and had a greater compromise of the joint space than had previously been identified.

Following a December 22,1994 examination, Dr. Coates established a lifting restriction for claimant of forty to sixty pounds and predicted that with this restriction “he will be able to keep going for the foreseeable future.” On October 17, 1995, Dr. Coates wrote to claimant’s personal physician and reported:

This is a knee that is in a rather awkward position. Obviously, we would like to do something to fix it. On the other hand, I think arthroscopic debridement would fail. I do not think it would give him enough good to worth the cost of the operation, and yet it is not bad enough to recommend a knee replacement. So, we are really stuck with a knee that is not a good knee, but it’may last this way yet for several years.

In response to an inquiry from the employer’s lawyer, Dr. Coates reported on July 23, 1996, that claimant’s leg had sustained a twenty percent functional impairment. He opined that seventy-five percent of that impairment, a fifteen percent functional disability, was work related and the rest was the result of degenerative arthritis. He fixed July 23, 1996, as the date of maximum recovery from the September 3, 1993 injury.

In a letter to claimant’s counsel, Dr. Coates concluded that, with respect to the fifteen percent work-related functional disability of claimant’s leg, seventy-five percent of that impairment was attributable to the September 1993 injury. The balance of the functional disability, ie., 3.75%, was attributed to a cumulative trauma that resulted from claimant’s work activities subsequent to September 3, 1993. Claimant filed a petition to arbitrate the September 3, 1993 injury. He also filed a petition claiming a cumulative injury subsequent to September 3, 1993. He later dismissed the petition involving the September 3, 1993 injury without prejudice in the face of a statute-of-limitations defense. The deputy industrial commissioner found that the claimant had sustained a cumulative injury of 3.75% from day-to-day work activities after September 3, 1993. He concluded, however, that the full-responsibility rule recognized in Second Injury Fund v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995), and Celotex Corp. v. Auten, 541 N.W.2d 252, 254 (Iowa 1995), should be applied to produce a compensable impairment of fifteen percent of the use of claimant’s leg.

On appeal to the industrial commissioner’s designee, the deputy’s decision was upheld in all respects other than the application of the full-responsibility rule. The appeal decision concluded that the full-responsibility rule is only applicable in body-as-a-whole' disability cases and does not apply to functional impairment that is determinative of compensation for scheduled injuries. On claimant’s petition for judicial review, the district court disagreed with the agency’s refusal to apply the full-responsibility rule and ruled that the disability established in the opinion of the deputy industrial commissioner was correct. Other facts that are significant in deciding this appeal will be discussed in connection with our consideration of the legal issues presented.

I. Whether the Cumulative Injury Found to Exist Arose Out of Claimant’s Employment.

The first argument advanced by the employer is a claim that the evidence does not show that the cumulative injury found to have occurred subsequent to September 3, 1993, arose out of claimant’s employment. The employer urges that, as this court recognized in Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996), to arise out of one’s employment, “the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of ... employment.” Miedema, 551 N.W.2d at 311.

It is evident from the medical reports that were tendered in evidence that Dr. Coates, whose evaluations form the basis for the agency’s finding of disability, had been made aware of the tasks that claimant performed on a routine basis. It is also clear that his determination was based on cumulative trauma sustained from the claimant’s day-to-day work activities. We are satisfied that the additional disability resulting from these work activities was properly found by the commissioner to be a cumulative injury arising out of claimant’s employment. Contrary to the employer’s contention, there is no general principle in workers’ compensation law that requires, as a condition of com-pensability, that workplace activities must involve more hazard or exertion than a claimant’s activities outside of the workplace. That requirement is only true in selected instances, such as claims for heart attacks or mental illness. See Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 858 (Iowa 1995) (mental injury); Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 1974) (heart attack).

II. Whether a Cumulative Injury Was Established.

The employer contends that a cumulative injury has not been established. It urges that to show a cumulative injury a claimant must produce evidence of having suffered a distinct and discreet disability solely attributable to work activities over time, as opposed to an aggravation of a preexisting injury from an identified traumatic event. The employer urges that this argument is supported by our decision in Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 444 (Iowa 1999).

In Ellingson the claimant sustained a traumatic injury to her neck when a box fell on her in 1985. She continued to suffer problems over the next several years and subsequently alleged that a cumulative injury unrelated to the 1985 traumatic injury had manifested itself in 1992. Claimant’s counsel admitted in argument that the cumulative-injury claim was designed to produce a new date of injury, which would provide a higher wage base for computing her compensation.

The significant factor in the Ellingson case was that the extent of the 1985 injury was being litigated in the same proceeding in which the separate cumulative-injury claim was being urged. Moreover, the evidence conclusively showed that the ultimate extent of industrial disability was affected by job-related activities that aggravated the 1985 neck injury. As a result of that circumstance, this court held that the compensable consequences of the aggravation of the 1985 neck injury must be adjudicated as part of the disability flowing from that injury.

In the present case, claimant’s arbitration petition seeking benefits for the September 3, 1993 injury was voluntarily dismissed in the face of a statute-of-limitations defense by the employer. The industrial commissioner concluded that the dismissal of that petition precluded any consideration of the September 3, 1993 injury as a compensable event. Given this circumstance, we believe that claimant should be permitted to recover by way of a cumulative-injury claim for any increase in functional disability shown to have occurred as the result of day-to-day activities in the workplace subsequent to the September 3, 1993 injury.

Some support for our conclusion on this issue is found in Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). In that case, an earlier traumatic injury had been compensated, and the claimant, in lieu of a review reopening proceeding, elected to file an original arbitration petition in which he sought compensation for the increased degree of disability that resulted from day-to-day workplace activities that aggravated a prior back injury. .We approved a separate award for the percentage of permanent partial disability shown to exist over and above the percentage of disability adjudged with respect to the prior injury.

The Ziegler decision stands for the proposition that, when a permanent disability has been established by an adjudicated award, a later aggravation may provide an independent compensable event but only to the extent of the increased disability that flows therefrom. See Ziegler, 252 Iowa at 620, 106 N.W.2d at 595. We do not believe that the results should be different in the present case simply because there was no award for the prior injury as a result of the claim having become time barred. We are convinced that the agency’s conclusion that the evidence supported an award of compensation for a cumulative injury is not contrary to law.

III. Whether the Full-Responsibility Rule Applies to the Determination of Functional Impairment in the Compensation of Scheduled Injuries.

The appeal decision at the agency level concluded that the principle that supports a full-responsibility rule in cases involving body-as-a-whole disability does not extend to disability from injury to scheduled members based on functional loss of use. The district court disagreed. We agree in part with the agency’s conclusion.

The extent of the claimant’s entitlement to permanent disability benefits is determined by one of two methods. If it is found that the permanent physical impairment is limited to a body member specifically listed in schedules set forth in one of the subsections to Iowa Code section 85.34(2) (1999), the disability is considered a scheduled-member disability and is compensated based on the degree of functional impairment shown to exist. Loss of the use of a scheduled member is equivalent to the loss of that member. Moses v. Nat’l Union C.M. Co., 194 Iowa 819, 822, 184 N.W. 746, 747 (1921). A scheduled-member disability is compensable based on the percentage of functional loss. Iowa Code § 85.34(2). Pursuant to the second unnumbered paragraph of Iowa Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in such cases where the functional loss is less than 100%. Blizek v. Eagle Signal Co., 164 N.W.2d 84, 87 (Iowa 1969).

On the other hand, if the disability results from the impairment of the body riot involving a body member listed in section -85.34(2), compensation is based on a test of industrial disability from the injury to the body as a whole and compensated pursuant to the first unnumbered paragraph of Iowa Code section 85.34(2)(u). Unlike scheduled-member disability the extent of body-as-a-whole disability is determined by assessing the loss of earning capacity resulting from the injury. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 18-19 (Iowa 1997).

In upholding the full-responsibility rule in body-as-a-whole liability cases, this court, in Celotex, 541 N.W.2d at 254, relied extensively on the following passage from a leading workers’ compensation treatise:

The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment.... [H]e may have resumed employment as a “working unit.” If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much.

2 Arthur Larson, The Law of Workers’ Compensation § 59.42(g)(3), at 10-599 (1981).

With respect to scheduled injuries, the treatise suggests “[a] similar principle may be applied to an individual member that has been restored in whole or in part.” Id. The Celotex decision' was a recognition on our part that application of the full-responsibility rule in body-as-a-whole disability situations is based on the premise of a fresh start with respect to industrial disability. It permits a new determination of loss of earning capacity based on earnings from resumed employment following a prior disabling injury. As the Larson treatise suggests, however, this principle is only applicable with respect to scheduled injuries to the extent that it is shown that the individual member “has been restored in whole or in part.”

If claimant’s September 3, 1993 injury resulted in a discreet. and determinable functional disability of 11.25% of the use of his leg, there is nothing in the record to suggest that this condition improved so as to restore any portion of that functional loss. Indeed, the record shows that the condition of his leg deteriorated. Consequently, the final agency decision was correct if that degree of prior disability has been shown.

Ever since Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956), our law has recognized the distinction between preexisting conditions and preexisting disability. Full compensation is allowed for the result of workplace activities aggravating a preexisting condition. Rose, 247 Iowa at 908, 76 N.W.2d at 760-61. Thus, for the apportionment rule to be applied in situations in which apportionment would otherwise be proper, the preexisting injury must have independently produced a discreet and ascertainable degree of disability. Celotex, 541 N.W.2d at 255 (citing 2 Larson § 59.22(a), at 10-492.361; § 59.22(b), at 10^192.389). In other words, it must be shown that a particular percentage of permanent disability would have resulted from the prior event acting alone.

In the present case, the finding of the deputy industrial commissioner on the nature of the prior injury was

[t]he work injury of September [3], 1993, is found to be a cause of an 11.25 percent permanent impairment of the claimant’s right lower extremity and the aggravation of the right lower extremity by the claimant’s continued work at Quaker Oats was a cause of a 3.75 percent permanent impairment of the claimant’s right lower extremity....

The findings of the industrial commissioner’s designee on appeal, while worded somewhat differently, mirror those of the deputy. The opinion of Dr. Coates indicated that, of the 15% work-related impairment, “75 percent of that 15 percent is based upon the [September 3, 1993] injury.” We are satisfied that the agency could interpret this medical opinion as supporting its finding that an 11.25% permanent impairment of claimant’s leg was independently caused by the September 3, 1993 injury.

We have considered all issues presented and conclude that the judgment of the district court must be reversed and the case remanded for an order upholding the final decision of the agency.

REVERSED AND REMANDED.

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

      . In various reports and communications referred to in this opinion, Dr. Coates refers to an October 1993 injury, but the context of these communications convinces us that he is referring to the September 3, 1993 injury.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. N. Leroy WALTERS, Respondent.
    No. 01-2019.
    Supreme Court of Iowa.
    June 12, 2002.
    Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    N. LeRoy Walters, Mason City, pro se, for respondent.
   CADY, Justice.

This case is before us on a report of a division of the Iowa Supreme Court Grievance Commission. The Commission found N. Leroy Walters violated the Iowa Code of Professional Responsibility by neglecting client matters, engaging in misrepresentation, and failing to respond to inquiries from the Iowa Supreme Court Board of Professional Ethics and Conduct. It also found Walters violated a supreme court rule by failing to notify a client of his suspension from the practice of law and practicing law during a period of suspension. The Commission recommended Walters be suspended for a period not less than six months. Upon our consideration of the matter, we find Walters violated the Code of Professional Responsibility, and we suspend his license to practice law for a period not to exceed eighteen months.

I. Commission Report.

N. Leroy Walters has practiced law in Mason City, Iowa, since 1965, except for a short period of time when he worked as a real estate agent in Minneapolis, Minnesota, following the death of his wife in 1989. His career has been marked by both success and tragedy. For many years, he maintained a successful practice in a large law firm in Mason City. In 1999, his license to practice law was suspended for a period not less than three months.

In May 1996, Walters agreed to represent JoAnn Rock in an action to modify a decree for dissolution of marriage. Rock sought to modify the child support provisions of the decree. Walters prepared a petition for modification and Rock signed it on May 23,1996.

Unbeknownst to Rock, Walters never filed the petition. Instead, over the next four years, Walters fabricated a series of excuses and tall tales to cover up his failure to file the petition. In doing so, Walters repeatedly misrepresented the status of the case in response to inquiries by Rock. Additionally, in November 1999, Walters prepared an amended petition for modification, which was signed by Rock. Yet, as with the first petition, Walters did not file it with the clerk of court.

In April 2002 Rock contacted the local child support recovery office to inquire about the status of her modification case. She was told by an attorney in the office that Walters’ license to practice law had been suspended in December 1999 and that the clerk of court had no record of the petition for modification. Rock then contacted another lawyer who verified that the petition for modification had never been filed.

Walters did not send Rock written notice that his license to practice law had been suspended on December 22, 1999. Instead, he continued to communicate with her after his suspension by continuing to fabricate reasons for the failure of the modification petition to come before the court.

Walters did not respond to inquiries by the Board after a complaint was filed against him. He did seek additional time to respond to the complaint and other inquiries, but ultimately failed to do so.

Walters offered a variety of reasons and excuses at the hearing before the Commission for his failure to file the modification petition. In particular, Walters testified that he felt a modification proceeding could jeopardize the relationship between Rock and her children, and Rock agreed the petition should not be filed. Yet, as with the other excuses Walters offered for his actions, this excuse was inconsistent with the other evidence offered at the hearing. The Commission did not find Walters’ testimony to be credible.

The Commission found Walters committed misconduct by neglecting client matters, engaging in misrepresentation, failing to zealously represent a client, failing to notify a client of his suspension, practicing law during his suspension, and failing to respond to inquiries of the Board. See Iowa Ct. R. 35.21(l)(a) (attorney must notify clients of suspension in writing); DR 6-101(A)(3) (neglect of client matters); DR 1-102(A)(4), (5), (6) (misrepresentation, conduct prejudicial to the administration of justice, conduct that adversely reflects on the practice of law); DR 7-101(A)(l) (intentional failure to seek lawful objectives of a client). The Commission recommended Walters be suspended from the practice of law for not less than six months.

II. Scope of Review.

Our scope of review is well established. We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). We are not bound by the findings of the Commission, but we do give them weight. Id. “We also respectfully consider the discipline recommended by the Commission, but we are not bound by [it].” Id. The Board has the burden to prove “disciplinary violations by a ‘convincing preponderance of the evidence.’ ” Id. (citation omitted).

III. Violations.

The evidence presented at the Commission’s hearing revealed Walters violated the Iowa Code of Professional Responsibility. Walters not only neglected a client matter for nearly four years, but compounded the neglect by engaging in repeated acts of misrepresentation in an effort to hide his misconduct. His actions were intentional and deceitful. Moreover, the justifications he offered at the hearing for his heedless behavior were not credible and only confirmed his deceit. The neglect was comprehensive and continuing, and a product of an intent and design to ignore the interests of his client. The neglect violated DR 6-101(A)(3), as well as DR 7-101(A)(l). The misrepresentation violated DR 1-102(A)(4), (5), and (6).

One obligation imposed on a lawyer who has been disbarred or suspended from the practice of law is to notify clients “in all pending matters to seek legal advice elsewhere.” Iowa Ct. R. 35.21(l)(a). Walters maintained an attorney-client relationship with Rock at the time of his suspension on December 22, 1999, and was obligated to perform legal services for her. Consequently, Walters had an obligation under rule 35.21(l)(a) to notify Rock of his suspension and failed to do so. This violated DR 1-102(A)(5) and (6). Similarly, Walters continued to maintain his attorney-client relationship with Rock following his suspension from the practice of law and continued to deceive her in his discussions about the status of the case. This conduct also violated DR 1-102(A)(4), (5), and (6).

Walters also failed to respond to inquiries by the Board. Although Walters requested additional time to respond, he failed to respond after making the requests. This conduct violated DR 1-102(A)(5). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Engelhardt, 630 N.W.2d 810, 814 (Iowa 2001).

IV.Discipline.

“In determining the appropriate discipline, we consider ‘the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue’ ” to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001) (citations omitted). We also consider any aggravating and mitigating circumstances. Id. Multiple instances of neglect and past disciplinary action, as well as un-cooperativeness with the Board, are aggravating circumstances to consider in imposing discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000). Harm to a client is also considered. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999).

We do not recognize a “standard discipline for a[ny] particular type of attorney misconduct.” Hohenadel, 634 N.W.2d at 655. Yet, a review of our prior cases reveals that the discipline resulting from the neglect of client matters “‘generally ranges from a public reprimand to a six-month suspension.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 294 (Iowa 2002) (quoting Hohenadel, 634 N.W.2d at 655). On the other hand, misrepresentation typically warrants more severe sanctions. Id.; Hohenadel, 634 N.W.2d at 655-56. Considering the importance of honesty to the practice of law, we have stated that misrepresentation by a lawyer “constitutes a grave and serious breach of professional ethics” and usually warrants a “lengthy suspension.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999).

In this case, there are numerous violations, most of which, alone, would warrant a suspension. What began as a case of neglect was transformed into a serious case of misrepresentation, which only perpetuated and exacerbated the initial misconduct. The seriousness of the neglect and misrepresentation was then compounded when Walters continued to practice law following his suspension and failed to consider the interests of the client by neglecting to give notice to the client of the suspension. At each stage of the attorney-client relationship, Walters abdicated his fundamental responsibilities as a lawyer and blatantly disregarded the interests of his client. The actions of Walters may have visited serious consequences on the client and denigrated the profession. Rock was denied access to our courts for nearly four years. The resulting tarnish to the profession touches equally fundamental precepts.

We think the conduct engaged in by Walters supports a suspension for a minimum period of eighteen months. This discipline conforms to the prior discipline we have imposed in cases of neglect and misrepresentation, and considers the additional violations and aggravating circumstances that are an unfortunate aspect of this case.

Y. Conclusion.

We suspend Walters’ license to practice law with no possibility of reinstatement for a period of eighteen months from the date of the filing of this opinion. The suspension imposed applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon application for reinstatement, Walters shall have the burden to prove that he has not practiced law during the period of suspension and that he meets the requirements of Iowa Court Rule 35.13. Costs of this action shall be taxed to Walters pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.


author: MAHAN, J.

text:
    Brian Robert STILLE, Petitioner-Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, Motor Vehicle Division, Respondent-Appellee.
    No. 00-1099.
    Court of Appeals of Iowa.
    Dec. 28, 2001.

      Joseph G. Bertogli, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Mark Hunacek, Assistant Attorney General, for appellee.
    Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
   MAHAN, J.

Petitioner appeals the decision of the district court which determined his deferred judgment for driving while barred could be considered a conviction for purposes of Iowa Code section 321J.21(2) (1999). Petitioner claims his deferred judgment should not be placed on his certified driving record. We affirm.

Brian Stiile was charged with driving while barred, in violation of sections 321.560 and 321.561. The district court found Stiile guilty of the crime charged and granted him a deferred judgment under section 907.3.

Stiile was informed by the Iowa Department of Transportation that his deferred judgment would cause the period he was barred from driving to be extended under section 321J.21(2), which provides:

In addition to the fine, the department, upon receiving the record of the conviction of a person under this section upon a charge of driving a motor vehicle while the license of the person was suspended, denied, revoked, or barred shall extend the period of suspension, denial, revocation, or bar for an additional like period, and the department shall not issue a new license during the additional period.

Stiile asked the department to correct his driving record, claiming a deferred judgment should not be considered a conviction for purposes of section 321J.21(2). The department responded that a deferred judgment should be counted as a conviction when the deferred judgment is for a driving related offense.

Stille filed a petition for judicial review. The district court determined the license barment extension found in section 321J.21(2) was not punitive, but was instead remedial. The court concluded that for this reason a deferred judgment could be considered a conviction for purposes of that statute. The court upheld the action of the department. Stille appealed.

In this case we are presented with the question of whether a deferred judgment should be considered a conviction for purposes of section 321J.21(2). We apply rules of statutory construction only when the explicit terms of a statute are ambiguous. Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995). Language which is unambiguous will be given its plain and rational meaning in light of the subject matter. Id. When we engage in statutory construction, the fundamental rule is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute. Iowa Dep’t of Transp. v. Iowa Dist. Court, 559 N.W.2d 615, 617 (Iowa 1997). In looking for legislative intent, we are guided by what the legislature actually said, rather than what it should or could have said. State v. Hatter, 414 N.W.2d 333, 337 (Iowa 1987).

The word “conviction” may have various meanings, depending on its purpose. State v. Brodene, 493 N.W.2d 793, 796 (Iowa 1992). The meaning of the term “conviction” may be considered a question of legislative intent. State v. Hanna, 179 N.W.2d 503, 508 (Iowa 1970). The interpretation of the word “conviction” was addressed by our supreme court:

In the restricted or technical legal sense in which it is sometimes used, the word “conviction” includes the status of being guilty of, and sentenced for, a criminal offense, whether that status is established after confession of guilt by a guilty plea or after determination by a jury verdict upon an assertion of innocence. Stated otherwise technically the word means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to an ascertainment of his guilt.
In its general and popular sense and frequently in its ordinary legal sense, the word “conviction” is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.

State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986) (quoting State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970)).

The word “conviction” has been construed to have a relatively narrow and technical meaning where it appears in statutes used to enhance punishment, but has been given a broader definition when protection of the public has been at stake. Id. For example, a deferred judgment was considered a conviction for purposes of determining the number of a person’s offenses for operating while intoxicated (OWI), leading to license revocation. State v. Blood, 360 N.W.2d 820, 822 (Iowa 1985). The court stated that revocation for multiple OWI offenses was not intended as punishment to the driver, but was designed solely to protect the public from drivers who have demonstrated a pattern of driving while intoxicated. Id.; see also State v. Maher, 618 N.W.2d 303, 306 (Iowa 2000). In addition, under the restitution statute, section 910.2, the word “conviction” includes deferred judgments because protection of the public and rehabilitation of the offender are the purposes of the restitution statute. Kluesner, 389 N.W.2d at 373.

We find section 321J.21(2) was “not intended as punishment to the driver, but [was] designed solely for the protection of the public in the use of the highways.” See Blood, 360 N.W.2d at 822; Loder v. Iowa Dep’t of Transp., 622 N.W.2d 513, 515 (Iowa Ct.App.2000). As noted above, when the protection of the public has been at stake, the term “conviction” has been given a broader definition. See Kluesner, 389 N.W.2d at 372. Thus, we determine the term “conviction,” as used in section 321J.21(2) should be interpreted to include a deferred judgment.

We affirm the decision of the district court that Stille’s deferred judgment for driving while barred may be considered a conviction for purposes of applying section 321J.21(2).

AFFIRMED.

        . State v. Blood, 360 N.W.2d 820, 821 (Iowa 1985), involves an interpretation of Iowa Code § 321.281(9) (1983), which has since been repealed. Section 321J.2(4)(b) now specifically provides that in determining if an OWI violation is a second or subsequent offense, deferred judgments are considered as previous offenses.


author: EISENHAUER, J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Benjamin Thomas SCHWEITZER, Defendant-Appellant.
    No. 01-0745.
    Court of Appeals of Iowa.
    April 10, 2002.

      Barbara Schwartz, University of Iowa Clinical Law Programs, Iowa City, and Reeni A. Brakefield and John Craiger, Student Legal Interns, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, J. Patrick White, County Attorney, and David Tiffany, Assistant County Attorney, for appellee-State.
    Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
   EISENHAUER, J.

The defendant, Benjamin Schweitzer, appeals his conviction and sentence following his guilty plea to charges of operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2(2)(b) (1999). Schweitzer argues the district court erred in concluding that a juvenile adjudication for OWI constitutes a prior offense for the purpose of charging and sentencing under section 321J.2(4). We affirm.

I. Background Facts and Proceedings. In January 1998, Schweitzer, then a juvenile, was adjudicated a delinquent for OWI. On February 2, 2001, the State filed a trial information charging Schweitzer with OWI, second offense, in violation of Iowa Code section 321J.2(2)(b) (1999). The State based its charge on Schweitzer’s previous juvenile OWI adjudication. Schweitzer pleaded guilty to the charge, but prior to sentencing, filed a motion for adjudication of law points, arguing that he should have only been charged with OWI, first offense, since his juvenile adjudication could not be used to enhance his adult offense. At sentencing, the district court addressed Schweitzer’s motion to adjudicate law points and rejected his argument. The court sentenced him to serve thirty days in jail, twenty-three days suspended, self-supervised probation for one year, and á $1500 fine. Schweitzer has appealed.

II. Scope of Review. The court reviews an adjudication of law points for correction of errors at law. State v. Maher, 618 N.W.2d 303, 305 (Iowa 2000). “An adjudication of law points is confined to a determination of legal matters on uncontroverted pleadings.” Id. To the extent the determination involves the interpretation of a legislative provision, we review for correction of errors at law. Id.

III. Adjudication of Law Points. Schweitzer’s only question on appeal is whether the district court erred in allowing the State to use his 1998 juvenile adjudication of OWI as a predicate offense in charging him as a second offender. Schweitzer contends that in harmonizing Iowa Code sections 232.55, 321J.2(4), and 321.213, it was the legislature’s intent to exclude juvenile OWI adjudications as a predicate offense. The State, however, contends section 321.213 is clear that prior juvenile OWI adjudications are the equivalent of a final conviction for purposes of section 321J.2 and may be used to charge a second offense.

Iowa Code section 232.55, governing the effects of juvenile adjudications, provides:

1. An adjudication or disposition in a proceeding under this division shall not be deemed a conviction of a crime and shall not impose any civil disabilities or operate to disqualify the child in any civil service application or appointment.
2., Adjudication and disposition proceedings under this division are not admissible as evidence against a person in a subsequent proceedings in any other court before or after the person reaches majority except in a sentencing proceeding after conviction of the person for an offense other than a simple or serious misdemeanor. Adjudication and disposition proceedings may properly be included in a presen-tence investigation report prepared pursuant to chapter 901 and § 906.5 (emphasis added).

Section 232.55 thus provides a general prohibition on the consideration of juvenile adjudications as a criminal conviction for any purpose other than in the discretionary aspect of criminal sentencing in adult prosecutions for felonies and aggravated misdemeanors, including the basis for the suspension of a driver’s license.

Section 321J.2(4) outlines what may be considered a second or subsequent offense for purposes of criminal sentencing or license revocation. Each previous violation on which a conviction or deferred judgment was entered prior to the date of the violation charged shall be considered and counted as a separate offense. Iowa Code § 321J.2(4)(c).

Iowa Code section 321.213, entitled “License suspensions or revocations due to violations by juvenile drivers”, forms the basis for the parties’ dispute. Section 321.213 provides:

Upon the entering of a dispositional order suspending or revoking the driver’s license or operating privileges of the juvenile under section 232.52, subsection 2, paragraph “a”, the clerk of the juvenile court shall forward a copy of the adjudication and the dispositional order to the department. Notwithstanding section 232.55, a final adjudication in a juvenile court that the child violated a provision of this chapter or chapter 321A or 321J constitutes a final conviction for purposes of sections 321.189, subsection 7, paragraph “b”, and sections 321.193, 321.194, 321.200, 321.209, 321.210, 321.215, 321.555, 321A.17, 321J.2, 321J.3, and 321J.4 (emphasis added).

According to Schweitzer, the language in section 321.213 applies only to license suspensions or revocations, and juvenile OWI adjudications may not be used as a predicate offense in subsequent criminal proceedings. We disagree.

We apply the rules of statutory construction only when the explicit terms of a statute are ambiguous. Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995). Language that is unambiguous will be given its plain and rational meaning in light of the subject matter. Id. In looking for legislative intent, we are guided by what the legislature actually said, rather than what it should or could have said. State v. Hatter, 414 N.W.2d 333, 337 (Iowa 1987). If legislative intent is not apparent in the statute, we will look to other considerations to determine the purpose of the statute. State v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985).

The fundamental rule is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute. Dep’t of Transp. v. Iowa Dist. Court, 559 N.W.2d 615, 617 (Iowa 1997). We may not, under the guise of construction, enlarge or otherwise change the terms of the statute. State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). A statute should be construed so that effect will be given to all of its provisions, and no part is superfluous or void. State v. Harrison, 325 N.W.2d 770, 772 (Iowa Ct.App.1982).

Schweitzer maintains that section 321.213 is a licensing and revocation statute by noting that section’s title, “License suspension or revocations due to violations by juvenile drivers.” The title of a statute, however, cannot limit the plain meaning of the text. Atchison, Topeka, & Santa Fe Ry. Co., v. Bair, 338 N.W.2d 338, 344 (Iowa 1983). We believe that section 321.213 carves out a specific exception to the general rule set forth in section 232.55 prohibiting a juvenile adjudication from being later used in an adult criminal proceeding. Section 321.213, in part, specifically provides that, notwithstanding section 232.55, a final adjudication in a juvenile court that a child violated the provisions of chapter 321J constitutes a final conviction for the purposes of sections 321J.2 and 321J.4. Thus, by its own clear wording, juvenile OWI adjudications are considered final convictions for purposes of criminal charges under section 321J.2 and license revocation under section 321J.4.

We likewise reject Schweitzer’s argument that such an interpretation of section 321.213 is inconsistent with sections 232.55 and 321J.2(4). Section 232.55 merely sets forth a general prohibition against using a juvenile adjudication as evidence in a subsequent proceeding. By its own terms, section 232.55 carves out a sentencing exception for persons adjudicated of an aggravated misdemeanor or greater.

Schweitzer also maintains that the holding in Johnson v. Iowa Dep’t of Transp., 446 N.W.2d 778 (Iowa 1989), supports his argument that a juvenile OWI adjudication may not be used to enhance a subsequent conviction for OWI. In Johnson, the defendant was arrested for OWI, first offense. Johnson, 446 N.W.2d at 779. The defendant had previously been convicted of a juvenile OWI offense. Id. The Department of Transportation revoked the defendant’s license for one year, basing its decision in part on the defendant’s previous juvenile OWI adjudication. Id. On appeal, the district court concluded that the juvenile adjudication could not be used to determine that the defendant was guilty of a second offense. Id. The supreme court reversed, ruling that because the issue raised on appeal did not involve a criminal sentencing proceeding but pertained to driver’s license revocation, section 321.213 as contained in the 1987 Code permitted use of a juvenile adjudication as the basis to revoke a license. Id. at 780.

We find the holding in Johnson inapplicable to the present case. The language in current section 321.213 that provides that a juvenile adjudication of a violation of 321J is considered a final conviction for purposes of section 321J.2 is conspicuously absent from the language of section 321.213 contained in the 1987 Code. Thus, section 321.213 as contained in the 1987 Code and interpreted by Johnson prohibited the use of a juvenile adjudication for purposes of a violation of section 321J.2. Current section 321.213 does not.

Schweitzer argues, in a footnote, that if we hold that section 321.213 allows juvenile adjudications to count as a predicate offense under section 321J.2, the provision is unconstitutionally vague. Raising this issue in a footnote, however, is considered insufficient for purposes of error preservation. State v. Reddick, 388 N.W.2d 201, 203 (Iowa Ct.App.1986).

We therefore affirm Schweitzer’s conviction and sentence.

AFFIRMED.

      . Iowa Code section 321.213 (1987) provided "[n]otwithstanding section 232.55, a final adjudication in a juvenile court that the child violated a provision of ... chapter 321J constitutes a final conviction ... for purposes of section 321.189, subsection 2, paragraph "b", and sections 321.193, 321.194, 321.200, 321.209, 321.210, 321.215, and 321A.17.”


author: MAHAN, P.J.

text:
    Kenneth A. LEWIS, Virgil D. Power and Sandra Williams, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. STATE of Iowa, EX REL., Thomas J. MILLER, in his official capacity as Attorney General of the State of Iowa, and Iowa Department of Human Services, Defendants-Appellees.
    No. 01-0659.
    Court of Appeals of Iowa.
    April 24, 2002.

      Matthew Novak and Thad J. Collins of Pickens, Barnes & Abernathy, Cedar Rapids, and John C. Cabaniss of Law Office of John C. Cabaniss, Milwaukee, WI, for appellants.
    Thomas J. Miller, Attorney General, and Gordon Allen, Deputy Attorney General, for appellees.
    Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
   MAHAN, P.J.

The plaintiffs appeal from a district court ruling granting the defendants summary judgment. The ruling dismissed the plaintiffs’ class action suit, in which they sought a declaratory judgment that they were entitled to portions of the proceeds from a 1998 settlement entered into between various tobacco companies and several states, including the State of Iowa. The plaintiffs contend the district court erred by failing to recognize that, in light of certain state and federal statutory provisions, a portion of the settlement belongs to them. We affirm.

Background Facts and Proceedings. In November 1996 the State of Iowa filed a lawsuit against manufacturers of tobacco products, seeking reimbursement of Medicaid expenditures made by the State for tobacco-related health conditions. The complaint contained nine counts alleging violations of state law and requesting monetary and equitable relief. The tobacco industry defendants moved to dismiss all counts of the State’s petition. Following hearing on the motion, the district court dismissed four of the nine counts. Our supreme court affirmed the district court’s dismissal of the four counts. State ex rel. Miller v. Philip Morris, Inc., 677 N.W.2d 401 (1998). The court concluded that Iowa Code section 249A.6 (1997) was the exclusive remedy to the State for the recovery of the Medicaid expenditures. Id. at 405-06. The State then amended its complaint to assert claims under section 249A.6. On November 20, 1998, the lawsuit was settled. The State of Iowa and forty-five other states entered into an agreement with the tobacco companies known as the Master Settlement Agreement (MSA). The MSA required the tobacco companies to comply with various conditions, such as abiding by certain restrictions on advertising and lobbying activity. It also required the tobacco companies to make annual payments in perpetuity to the settling states. In return, the settling states gave the companies an unconditional release of a broad array of claims and potential claims based on past, present, and future conduct, acts, or omissions. Once the settlement agreement was finalized through a consent decree in December 1998, Iowa became entitled to a share of these funds. Under the MSA, the State of Iowa expects to receive approximately $1,104 billion.

The plaintiffs filed a class action for declaratory judgment on February 24, 2000. The plaintiffs are individuals who suffer or have suffered from a variety of smoking-related illnesses and who have been the recipients of medical assistance payments under Iowa’s Medical Assistance Act, Iowa Code chapter 249A. The plaintiffs brought this action for a declaratory judgment on behalf of all similarly situated persons, seeking to obtain the portion of the payments to Iowa under the MSA in excess of that necessary to reimburse the State for its Medicaid expenditures for tobacco-related health conditions pursuant to 42 U.S.C. § 1396k(b), 42 C.F.R. § 433.154(c), and Iowa Code section 249A.6. The plaintiffs also seek an accounting to determine the amount of the settlement that belongs to them. The defendants filed a motion to dismiss on several grounds, which the district court denied. The defendants then filed a motion for summary judgment contending federal law and sovereign immunity barred the plaintiffs’ claims. Following a hearing, the district court granted the defendants’ motion. The court concluded the MSA did not release the plaintiffs’ claims and the State only recovered under Iowa Code section 249A.6 amounts it already paid. The plaintiffs appeal.

Standard of Review. The general rules regarding our review of summary judgments are well settled. We review a ruling on a summary judgment motion for errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000); Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000). To the extent the plaintiffs challenge the district court’s interpretation of the applicable statutes and regulations, we review for correction of errors at law. In re Inspection of Titan Tire, 637 N.W.2d 115, 128 (Iowa 2001).

A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Crippen, 618 N.W.2d at 564; Swartzendruber, 613 N.W.2d at 649. A factual issue is “material” only if “the dispute is over facts that might affect the outcome of the suit, given the applicable law.” Fonts ex rel. Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999). The burden is on the party moving for summary judgment to prove the facts are undisputed. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001).

In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. Crippen, 618 N.W.2d at 565. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record. Id. An inference is legitimate if it is “rational, reasonable, and otherwise permissible under the governing substantive law.” Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct.App.1994). On the other hand, an inference is not legitimate if it is “based upon speculation or conjecture.” Id. In nonjury cases, summary judgment may be granted if a trial would not enhance the ability of the court to draw inferences or conclusions. Id. at 89. If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists. Phillips, 625 N.W.2d at 718; Swartzendruber, 613 N.W.2d at 649.

Summary Judgment. The plaintiffs seek to recover the proceeds of the M.S.A. under 42 U.S.C. § 1396k(b). Section 1396k requires states that wish to participate in Medicaid to require individual beneficiaries to assign to the state any rights to support and payment of medical care by any third party. See 42 U.S.C. § 1396k(a)(l)(A). The federal law then creates a distribution scheme by which any money governed by section 1396k(b) is used first to reimburse the federal government, then to reimburse the state, with any surplus paid over to the beneficiary:

Such part of any amount collected by the State under an assignment made under the provisions of this section shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of an individual with respect to whom such assignment was executed (with appropriate reimbursement of the Federal Government to the extent of its participation in the financing of such medical assistance), and the remainder of such amount collected shall be paid to such individual.

42 U.S.C. 1396k(b); see also 42 C.F.R. § 433.154.

Congress has, however, recently-amended this statute. The newly enacted statute exempts from the normal procedures by which the federal government takes it share of state recoveries “any amount recovered or paid to a State as part of the comprehensive settlement of November 1998 between manufacturers of tobacco products ... and State Attorneys General.” 42 U.S.C. § 1396b(d)(3)(B)(i) (West Supp.2000). It further provides that, with the exception for certain costs associated with litigation, “a State may use amounts recovered or paid to the State as part of a comprehensive or individual settlement ... for any expenditures determined appropriate by the State.” 42 U.S.C. § 1396b(d)(3)(B)(ii) (emphasis added).

The State of Iowa has implemented this federal command through section 249A.6, which provides in pertinent part:

When payment is made by the department for medical care or expenses through the medical assistance program on behalf of a recipient, the department shall have a lien, to the extent of those payments, upon all monetary claims, which the recipient may have against third parties.

Iowa Code § 249A.6(1). Therefore, the State of Iowa can seek reimbursement only for the amount the State actually spent on medical treatment for Medicaid recipients. See id.

After a careful review of the entire record, we conclude the district court properly granted the defendants’ motion for summary judgment. Under Iowa Code section 249A.6, the plaintiffs assigned to the State of Iowa their rights to collect only the amount the State had spent on medical treatment, which under 42 U.S.C. § 1396k(b) is the State’s own share of the settlement proceeds. Under the plain language of the federal statute, 42 U.S.C. § 1396b(d)(3)(B)(ii) applies to all amounts received by the State pursuant to the MSA, and the State has the right, under the express terms of the statute, to use those amounts for any expenditures it determines are appropriate. Therefore, the plaintiffs’ claim is barred. Accordingly, summary judgment was appropriate.

We recognize that every court, state or federal, that has considered one of these cases has dismissed it either because of sovereign immunity or because the Master Settlement Agreement was not a Medicaid settlement subject to § 1396k(b). See, e.g., Greenless v. Almond, 277 F.3d 601 (1st Cir.2002) (relying on § 1396b(d)(3)(B)(ii)); Tyler v. Douglas, 280 F.3d 116 (2d Cir.2001) (relying on § 1396b(d)(3)(B)(ii)); Harris v. Owens, 264 F.3d 1282 (10th Cir.2001) (same); Watson v. Texas, 261 F.3d 436 (5th Cir.2001) (relying on § 1396k(b)); McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252 (11th Cir.2001) (same); Floyd v. Thompson, 227 F.3d 1029 (7th Cir.2000) (relying on § 1396k(b) and on Wisconsin assignment law); Cardenas v. Anzai, 128 F.Supp.2d 704 (D.Haw.2001) (Eleventh Amendment); Strawser v. Lawton, 126 F.Supp.2d 994 (S.D.W.Va.2001) (same); Clark v. Stovall, 158 F.Supp.2d 1215 (D.Kan.2001) (same); Skillings v. Illinois, 121 F.Supp.2d 1235 (C.D.Ill.2000) (following Floyd while applying Illinois law); Martin v. New Mexico, 197 F.R.D. 694 (D.N.M.2000) (Eleventh Amendment); Barton v. Summers, 111 F.Supp.2d 989 (M.D.Tenn.2000) (same); State v. Superior Court, 83 Cal.App.4th 597, 99 Cal.Rptr.2d 735 (2000) (interpreting portion of state code implementing federal statutory scheme); Brown v. State, 617 N.W.2d 421, (Minn.Ct.App.2000) (same).

Our conclusion is supported by the terms of the settlement agreement, which defines “Releasing Parties” as the various settling states, their subdivisions, and representatives, but which explicitly excludes from the release persons seeking “solely ... private or individual relief for separate and distinct injuries.” The agreement therefore preserves the plaintiffs’ right to sue the tobacco manufacturers for their tobacco-related injuries and illnesses. See McClendon, 261 F.3d at 1261; see also Floyd, 227 F.3d at 1037 (“[The settlement agreement] did not purport to extinguish the claims of individual persons who were not part of the settlement process ... ”).

Summary. We conclude that pursuant to federal and state law the funds received under the Master Settlement Agreement are not subject to the distribution requirements of 42 U.S.C. § 1396k(b). As a result, the defendants are entitled to judgment as a matter of law. Accordingly, we affirm the district court.

AFFIRMED.

      . 42 U.S.C. § 1396k(a)(l)(A) provides:
      (a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall— (1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required—
      (A) to assign the State any rights, of the individual or of any other person who is eligible for medical assistance under this subchapter and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party;

      . "Section 249A.6 was enacted in 1979 to permit the State to enforce its right of subro-gation against persons who were legally liable to a recipient for medical expenses incurred under the provisions of the Medical Assistance Act, a joint federal and state program.” State ex rel. Miller v. Philip Morris, Inc., 577 N.W.2d 401, 405 (Iowa 1998).