Calabretto Building Group v. Tradesmen International, LLC.

IN THE COURT OF APPEALS OF IOWA

No. 22-1184
Filed November 8, 2023

CALABRETTO BUILDING GROUP,
Plaintiff-Appellant,

vs.

TRADESMEN INTERNATIONAL, LLC.,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather L. Lauber,

Judge.

A builder appeals the grant of summary judgment to the staffing company

that supplied an allegedly negligent forklift operator under a client services

agreement. AFFIRMED.

Matthew D. Hammes of Locher Pavelka Dostal Braddy & Hammes, LLC,

Omaha, Nebraska, for appellant.

Lynn C. Herndon and Mark D. Aljets of Nyemaster Goode, P.C., Des

Moines, for appellee.

Heard by Tabor, P.J., Greer, Schumacher, Badding, Buller, and Langholz,

JJ, and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

TABOR, Presiding Judge.

Under their contract, Tradesmen International supplied Calabretto Building

Group with a forklift operator to help with the construction of a storage facility. That

operator ran into a precast beam, knocking the beam from its support column,

damaging the concrete floor and the forklift. Calabretto sued Tradesmen under a

theory of respondeat superior.1 Tradesmen denied liability, pointing to the terms

of its contract with Calabretto. Calabretto argued those terms were void under

Iowa Code section 537A.5 (2020). Both moved for summary judgment. The

district court granted Tradesmen’s motion. Calabretto appeals.

Because we find that Tradesmen could enforce the contract, and it barred

Calabretto’s tort claim, we affirm the grant of summary judgment.

I. Facts and Prior Proceedings

In 2008, Jesse Calabretto, the owner of Calabretto Building Group, signed

a “client services agreement” with Tradesmen, a staffing company. In that

contract, Tradesmen agreed to assign employees to Calabretto “on a permanent

basis and assume exclusive responsibility for the payment of wages to its

employees so assigned.” Tradesmen also guaranteed that workers sent to

Calabretto’s job site would be “of the quality and have the knowledge” that

Calabretto requested. If in Calabretto’s opinion that was not the case, it could

return the worker to Tradesmen within the first four hours of the first day at no

1 Translated from Latin, respondeat superior means “let the principal answer.”
Montanick v. McMillin, 280 N.W. 608, 613 (Iowa 1938). Under that doctrine,
employers are liable for their employees’ negligence if those employees are acting
within the scope of employment. Godar v. Edwards, 588 N.W.2d 701, 705
(Iowa 1999).
3

charge. Calabretto was “solely responsible for directing, supervising, and

controlling Tradesmen employees” and Tradesmen did “not warrant or insure the

work.”

Key to this appeal, the agreement contained this “hold harmless” clause:

INSURANCE AND HOLD HARMLESS CLAUSE: The Client
agrees to provide general liability insurance coverage for Tradesmen
and its workers provided under this contract with a liability limit of not
less than $1,000,000 per occurrence and a Certificate of Insurance
naming Tradesmen as a Certificate Holder.
a. Client agrees that Tradesmen is neither a guarantor, nor
insurer and will not be liable for any injury, loss or damage to persons
or property or from work stoppages that may arise in the performance
or non-performance of work by Tradesmen employees, or the
conduct of any other person at the job site. Client agrees to release,
defend, indemnify and hold Tradesmen harmless from and against
any and all claims, losses, liabilities and costs (including reasonable
attorneys’ fees) relating to any injury, loss or damage to persons or
to property arising out of any and all wrongful or negligent acts
committed by Client or Tradesmen employees under Client’s
supervision, direction and/or control. . . .

In 2019, Calabretto was building an Extra Space Storage facility in Ankeny.

To complete this project, Calabretto needed a forklift operator. The builder turned

to Tradesmen. Tradesmen assigned Marcus Johnson to work on the project in

mid-October. On a muddy day in late November, Johnson drove the forklift into a

precast beam, which fell, gouging a sizable hole in the concrete floor below and

damaging the forklift. James Ekstrand—who traveled between construction sites

as needed throughout the day as project superintendent—was not there when the

accident happened. So Johnson called Ekstrand to report the mishap. Ekstrand

later recounted that Johnson admitted that he “screwed up (he used a different

term) and put a hole in my concrete.”
4

The property damage totaled $61,653.92. Calabretto asked Tradesmen to

foot the bill. Tradesmen declined, which brings us to this litigation. In August 2020,

Calabretto sued Tradesmen, asserting the employer was responsible for

Johnson’s negligent operation of the forklift. Tradesmen answered, contending it

had “complete immunity” under the parties’ contract entered in 2008.

Calabretto moved for summary judgment in January 2022, asserting the

immunity provision cited by Tradesmen was void and unenforceable under Iowa

Code section 537A.5. In February 2022, Tradesmen also moved for summary

judgment, contending its contract with Calabretto barred any negligence claims

against Tradesman based on the performance of its employees.2 In resisting that

motion, Calabretto offered an affidavit from owner Jesse Calabretto asserting that

the 2008 client services agreement had been “terminated in writing” and was not

in effect at the time of the 2019 incident. That assertion was controverted.

Tradesmen offered the affidavit of its account executive, Wesley McDonald, who

swore that neither party had terminated the contract and it was in effect in

November 2019.

In June 2022, the district court granted summary judgment for Tradesmen.

The court ruled the agreement between the parties was not a construction contract

as defined in section 537A.5(1); because no issue of indemnification appeared,

the contractual provision was not void under section 537A.5(2); and, regardless,

the economic loss doctrine defeated Calabretto’s tort claim. The court also found

that Calabretto’s affidavit violated Iowa Rule of Civil Procedure 1.981(5) and was

2 As an alternative defense, Tradesmen argued that Calabretto could not recover

in its tort action under the economic loss doctrine.
5

“self-serving, conclusory, and does not contain information that rises to the level

of creating a genuine issue of material fact.”

On appeal, Calabretto contends the district court committed five errors:

(1) finding the agreement was not a construction contract; (2) finding the “hold

harmless” provision was not void and unenforceable as contrary to public policy;

(3) applying the economic loss doctrine to its tort claim; (4) disregarding its cross

motion for summary judgment; and (5) finding no genuine issue of material fact as

to whether Calabretto cancelled the contract before the incident.

Tradesmen defends the district court ruling on those five grounds; it also

urges another basis for affirmance—that section 537A.5(2) does not apply

retroactively to invalidate its contract with Calabretto—signed three years before

the statute was enacted. As its bottom line, Tradesmen contends the terms of the

client services agreement controls the relationship between the parties and entitles

it to summary judgment.

II. Scope and Standard of Review

We review the grant of summary judgment for correction of errors at law.

Breese v. City of Burlington, 945 N.W.2d 12, 17 (Iowa 2020). Summary judgment

is proper when the record contains no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3);

Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). We view the record in the

light most favorable to the nonmoving party. Banwart v. 50th St. Sports, L.L.C,

910 N.W.2d 540, 545 (Iowa 2018). “When the facts are undisputed, we reverse

only if the district court misapplied the law.” State ex rel. Palmer v. Unisys Corp.,

637 N.W.2d 142, 149 (Iowa 2001). We likewise review the district court’s statutory
6

interpretation for legal error. Bank of the W. v. Kline, 782 N.W.2d 453, 457 (Iowa

2010).

III. Analysis

A. Definition of Construction Contract

Calabretto first contends the district court erred in deciding that its client

services agreement with Tradesmen was a labor contract rather than a

construction contract as defined in section 537A.5(1).

Iowa Code section 537A.5(1) defines a construction contract as:

[A]n agreement relating to the construction, alteration, improvement,
development, demolition, excavation, rehabilitation, maintenance, or
repair of buildings, water or sewage treatment plants, power plants,
or any other improvements to real property in this state, including
shafts, wells, and structures, whether on ground, above ground, or
underground, and includes agreements for architectural services,
design services, engineering services, construction services,
construction management services, development services,
maintenance services, material purchases, equipment rental, and
labor. “Construction contract” includes all public, private, foreign, or
domestic agreements as described in this subsection other than
such public agreements relating to highways, roads, and streets.

Calabretto emphasizes the breadth of this definition, pointing to the “relating

to” language in the opening phrase and the inclusion of “labor” in the list of

construction services covered. Calabretto contends the district court should have

found its agreement with Tradesmen was both a labor contract and a construction

contract. Tradesmen counters that the agreement “does not identify any

construction project, building or improvement. Nor does [it] name a contractor,

general contractor, subcontractor, or sponsor, or anything of the like.” Tradesmen

maintains that providing “temporary workers to its clients in the construction
7

industry does not automatically deem contracts it executes in Iowa ‘construction

contracts’ under section 537A.5(1).”

We recognize persuasive points on both sides. But we choose to bypass

this definitional dilemma and resolve the parties’ dispute on other grounds.

Assuming without deciding that the client services agreement was a construction

contract under section 537A.5(1), we find that the agreement was not void under

section 537A.5(2) for two reasons. One, the statute voids indemnification clauses

and these facts do not invoke the indemnity provisions of the contract. Two,

because the statute applies prospectively, the contract—which predates the

enactment—remains enforceable. We will address these reasons in turn.

B. Hold Harmless Clause.

Calabretto argues that the “hold harmless clause” in its agreement with

Tradesmen “runs afoul” of the prohibitions in section 537A.5(2). The builder

contends that the passage where it agrees to “release, defend, indemnify and hold

Tradesmen harmless” from “all claims, losses, liabilities and costs” relating to

property damage arising out of any wrongful or negligent act by Tradesmen’s

employees is “exactly the type of provision” prohibited by section 537A.5(2).

But as Tradesmen points out, even if the client services agreement

contained an indemnity clause susceptible to the prohibitions in section 537A.5(2),

that clause was not triggered here.3 Indeed, no one asserted an indemnity claim.

3 Rather, the clause governing these facts is the parties’ agreement that Calabretto

is “solely responsible for directing, supervising, and controlling Tradesmen
employees as well as their work and Tradesmen does not warrant or insure the
work.” That clear agreement stands in the way of recovery by Calabretto for the
damage Johnson caused during his work at the project site.
8

Recognizing that fact, the district court found: “In this action between the parties,

there is no indemnity clause.”4 From there, the court decided that the bargained-

for division of liability between the contracting parties was not a target of

section 537A.5(2). In reaching that decision, the court relied on Standard Water

Control Systems, Inc. v. Jones, 888 N.W.2d 673, 678 (Iowa Ct. App. 2016). That

case interpreted section 537A.5(2) as applying only to indemnity claims. Standard

Water, 888 N.W.2d at 678. It explained: “An indemnification clause ‘does not apply

to claims between the parties to the agreement. Rather it obligates the indemnitor

to protect the indemnitee against claims brought by persons not a party to the

provision.’” Id. (quoting FNBC Iowa, Inc. v. Jennessey Grp., L.L.C., 759 N.W.2d

808, 811 (Iowa Ct. App. 2008)).

Calabretto ignores Standard Water—not citing it, much less distinguishing

it. With no countervailing argument to consider, and seeing little daylight between

these facts and those in Standard Water, we reject Calabretto’s position.

C. Retroactivity

Beyond the indemnity limitation, Tradesmen argues that section 537A.5(2)

does not apply because the statute was enacted three years after Calabretto

signed the client services agreement. For this retroactivity argument, Tradesmen

relies on Best Buy Stores, L.P. v. Russell Construction Co., No. 4:09-CV-518, 2011

4 As the district court reasoned, the mention of indemnity in the “hold harmless
clause” did not mean the entire contract was void under section 537A.5(2). The
statute’s text supports the district court’s decision. As stated in section 537A.5(2),
an offending “provision in a construction contract” is void, not the entire contract.
See First Mercury Ins. Co. v. Cincinnati Ins. Co., 882 F.3d 1289, 1298 n.4 (10th
Cir. 2018). Because Tradesmen relies on contract terms not involving
indemnification, those terms are not void under section 537A.5(2).
9

WL 13228239, at *8 (S.D. Iowa Oct. 5, 2011). In Best Buy, the federal district court

declined to apply section 537A.5 to a contract existing before the statute’s

enactment. 2011 WL 13228239, at *8 (citing Anderson Fin. Servs., LLC v. Miller,

769 N.W.2d 575, 581 (Iowa 2009) (holding statute placing a cap on finance

charges did not apply retrospectively)).

In its reply brief, Calabretto “does not contest that the statute should be

applied prospectively.” But the builder asserts that, unlike the situation in Best Buy

where the alleged act resulting in damage predated the statute, here the “accident”

happened after the date of enactment. And, in Calabretto’s view, the date of the

accident is the “event of legal consequence” that the statute governs. See Hrbek

v. State, 958 N.W.2d 779, 782 (Iowa 2021) (“The event of legal consequence is

the specific conduct regulated in the statute.”).

When deciding retroactivity challenges like this one, we ask three questions.

See Nahas v. Polk Cnty., 991 N.W.2d 770, 777 (Iowa 2023). First: is the operation

of the statute really retrospective, or does the provision attach a new legal

consequence to events completed after its enactment? Id. If the statute does

attach a new legal consequence to events completed before its enactment, we ask

a second question: did the legislature expressly make the provision retroactive?

Id. at 778. If so, we ask a third question: does any substantive law prohibit

retrospective application of the statute? Id.

In answering the first question, “we must identify the event of legal

consequence that the statute governs.” Id. We conclude that the relevant event

here is the formation of the contract. The 2011 statute contains new standards for

construction contracts; it imposes new consequences—finding provisions void and
10

unenforceable—when those provisions require one party to indemnify any other

party to the contract. See Iowa Code § 537A.5(2). Agreeing to those indemnity

provisions was the act “that the rule regulates.” Hrbek, 958 N.W.2d at 782. We

also look to contract formation as the relevant event, because the presumption

against statutory retroactivity is strongest when new laws affect “contractual or

property rights, matters in which predictability and stability are of prime

importance.” See Landgraf v. USI Film Prods., 511 U.S. 244, 271 (1994). A

contract conforming to public policy when made is normally not rendered unlawful

by a subsequent policy change. Diamond Transp. Logistics, Inc. v. Kroger Co.,

649 F.Supp. 3d 608, 621 (S.D. Ohio, 2023) (citing Jennyo v. Warner & Swasey

Co., 385 N.E.2d 630, 631 (Ohio 1979) (finding anti-indemnity statute did not apply

retroactively to invalidate indemnification agreement entered before effective date

of legislation)).

Because the event impacted by section 537A.5 is the agreement to

indemnify in a construction contract, we turn to the second question. What does

the statute say?5 We presume a statute operates prospectively unless the

5 Here is the pertinent statutory language:

[A] provision in a construction contract that requires one party to the
construction contract to indemnify, hold harmless, or defend any
other party to the construction contract, including the indemnitee’s
employees, consultants, agents, or others for whom the indemnitee
is responsible, against liability, claims, damages, losses, or
expenses, including attorney fees, to the extent caused by or
resulting from the negligent act or omission of the indemnitee or of
the indemnitee’s employees, consultants, agents, or others for whom
the indemnitee is responsible, is void and unenforceable as contrary
to public policy.
Iowa Code § 537A.5(2)
11

legislature expressly made it retrospective. Nahas, 991 N.W.2d at 778 (citing Iowa

Code § 4.5). This statute is silent on retroactivity.6 Best Buy, 2011 WL 13228239,

at *8. Because no statement makes the anti-indemnity provisions retrospective,

the law applies prospectively to contracts entered after the statute’s effective date.

See Nahas, 991 N.W.2d at 779. The client services agreement between

Calabretto and Tradesmen does not fall into that category. So we agree with

Tradesmen that section 537A.5(2) cannot render its existing contract void.

D. Contract Cancellation

Calabretto next argues that an affidavit from its owner avowing that he

cancelled the contract, on an unknown date before the forklift incident, generated

a genuine issue of material fact for trial. We disagree.

The district court addressed this issue in a footnote stating: “[T]he court

finds Jesse Calabretto’s affidavit violates Iowa Rule of Civil Procedure 1.981[5].

The affidavit is also self-serving,[7] conclusory, and does not contain information

that rises to the level of creating a genuine issue of material fact.”

6 Calabretto does not flag any language in section 537A.5 that expresses, or even

implies, the legislature’s intent that the statute should operate retroactively. We
recognize that our supreme court has read the language “any provision in any
lease or contract notwithstanding” in a newly enacted statute as implying
retrospective application to all leases containing a provision in conflict with the
statute. See Aetna Ins. Co. v. Chi. Great W. R.R. Co., 180 N.W. 649, 651
(Iowa 1920). But section 537A.5(2) is not similarly worded.
7 We are wary of the term self-serving here. True, “a self-serving affidavit
manufactured by an interested party to defeat summary judgment after potential
flaws in the case have been exposed may be so egregious that the magic affidavit
should not be allowed to generate a genuine issue of material fact.” Susie v. Fam.
Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 341 (Iowa 2020) (Appel, J.,
dissenting). But determinations of witness credibility are a core jury function better
left for trial. Id. Even an affidavit that proves to be self-serving may be evidence
for the trier of fact to believe or disbelieve. See Bieniak v. Romstad, No. 05-0432,
2005 WL 1750489, at *5 (Iowa Ct. App. July 27, 2005). Yet, as Tradesmen argued
12

Iowa Rule of Civil Procedure 1.981(5) specifies:

Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. . . . When a motion for
summary judgment is made and supported as provided in this rule,
an adverse party may not rest upon the mere allegations or denials
in the pleadings, but the response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that there
is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered.

While Calabretto’s affidavit is based on personal knowledge, his bare

assertion that the contract was cancelled before 2019 lacks support. Calabretto

did not specify when the contract was cancelled; nor did he offer any email or other

communication documenting the alleged cancellation.8 The affidavit did not

present “specific facts showing there is a genuine issue for trial” as required by

rule 1.981(5). Conclusory statements in an affidavit are insufficient to successfully

resist a summary judgment motion. See Wemett v. Schueller, 545 N.W.2d 1, 2–3

(Iowa Ct. App. 1995). “Even viewing the affidavit in the light most favorable to

[Calabretto], a reasonable mind could not find it presents a material issue without

more information.” See IA Pizza, Inc. v. Sherwood, No. 22-1706, 2023

WL 6293846, at *3 (Iowa Ct. App. Sept. 27, 2023). And summary judgment is

appropriate when the record contains no genuine issue of material fact. Farm

Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988).

in support of its summary judgment motion, the problem was that the owner’s
affidavit submitted with Calabretto’s resistance marked a “pivot” from its earlier
position that the existing contract was void and unenforceable.
8 As noted above, Tradesmen submitted an affidavit from its account executive

asserting the client services agreement remained in place.
13

E. Calabretto’s Cross-Motion for Summary Judgment

Calabretto next argues that the district court erred in finding that its grant of

summary judgment for Tradesmen was “dispositive of the issues.” Calabretto

contends the court should have separately considered its cross-motion for

summary judgment. Trouble is, Calabretto offers no authority to support its

contention that the district court could not consider the dueling motions for

summary judgment in tandem as raising the same legal issue—whether contract

terms defeated Calabretto’s tort claim. See Chartis Seguros Mexico, S.A. de C.V.

v. HLI Rail & Rigging, LLC, 3 F. Supp. 3d 171, 179 (S.D.N.Y. 2014) (considering

cross-motions together because they presented “two sides of the same coin”).

Because Calabretto cites no case law to support its position, we consider the

argument waived. See State v. Maynard, 232 N.W.2d 265, 266 (Iowa 1975) (“We

are under no compulsion to review any assignment of error when the complaining

party cites no authority in support of his argument.”). But even if Calabretto had

not waived this issue, we would find the district court properly considered both

parties’ motions for summary judgment.

F. Economic Loss Doctrine

Before closing, a note on the economic loss doctrine. Adopting

Tradesmen’s argument, the district court found: “The factual nature of Calabretto’s

claim, the type of risk, and the alleged damages relate to unfulfilled expectations

under the contract. Each of the damages identified by Calabretto are for harm to

the worksite itself, not to other people or property.” See Annett Holdings, Inc. v.

Kum & Go, L.C., 801 N.W.2d 499, 505 (Iowa 2011) (explaining that economic loss

doctrine “bars recovery in negligence when the plaintiff has suffered only economic
14

loss”). Calabretto contests that finding, insisting its lawsuit requires a tort remedy

not barred by the economic loss doctrine.

We need not enter that fray. As we reasoned above, section 537A.5(2)

does not void the relevant terms of the client services agreement. Under those

terms, Calabretto agreed that Tradesmen would not be liable for any property

damages arising from the work of Tradesmen employees. That agreement bars

Calabretto’s tort claim alleging negligence by the forklift operator. Thus, summary

judgment for Tradesmen was proper.

AFFIRMED.

Greer, Schumacher, Badding, and Buller, JJ., concur; Doyle, S.J., concurs;

Langholz, J., concurs specially.
15

LANGHOLZ, Judge (concurring specially).

I join nearly all of the court’s well-reasoned opinion. I agree that Calabretto

Building Group’s negligence suit against Tradesmen International, Inc. is barred

by the terms of their contract. Calabretto did not generate a fact dispute that the

contract had been cancelled. And the anti-indemnity-clause provision of Iowa

Code section 537A.5(2) (2020), as interpreted by binding precedent of our court,

does not void those terms in this suit between parties to the contract. I would stop

there—having decided all issues necessary to resolve this appeal and affirm the

dismissal of this suit. But the majority continues on—deciding that

section 537A.5(2) cannot apply to the parties’ contract because the statute was

enacted after the contract was executed. I would not reach this retroactivity

question because it is unnecessary and a host of reasons counsel against doing

so.

For starters, the district court did not decide the issue. Of course, we can

affirm based on an argument presented to but not ruled on by the district court.

See Off. of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 23 (Iowa 2012).

But we take this step away from our normal practices in the interests of fairness

and efficiency. It would be unfair for appellees to lose just because a district court

did not address their winning argument. And it would be inefficient if we reversed

and remanded merely for the district court to reach the same result on a ground

we could have easily decided right away. So too would it waste judicial resources

if district courts felt the need to unnecessarily decide every single possible issue—

and litigants tried to force the same through rule 1.904 motions—just to avoid the

risk of either of those scenarios.
16

Neither fairness nor efficiency is served here. This case is over—with the

same result—whether or not we decide the retroactivity issue. I thus see no reason

to proceed without a district court decision on the issue. Doing so deprives us of

the benefit that comes from conducting an independent review of the written

reasoning of another impartial judicial officer. And it deprives the parties of the

benefit that comes from challenging or defending a concrete and complete legal

analysis—the hallmark of appellate litigation.

Understandably—given this procedural posture and the many other issues

demanding the parties’ attention in this appeal—we also lack the benefit of robust

briefing by the parties. The retroactivity issue was first raised as an alternative

ground for affirming in only three pages of Tradesmen’s brief. Tradesmen bases

its argument mainly on a single federal district court decision holding that

section 537A.5 did not apply to void provisions in contracts executed before its

enactment. See Best Buy Stores, L.P. v. Russell Constr. Co., No. 4:09-CV-518,

2011 WL 13228239, at *8 (S.D. Iowa Oct. 5, 2011). But that decision is not binding

on us. See McClure v. Owen, 26 Iowa 243, 249–55 (1868). And it is of minimal

persuasive value because it was decided before our supreme court clarified the

critical threshold inquiry: “whether application of a statute is in fact retrospective.”

Hrbek v. State, 958 N.W.2d 779, 782 (Iowa 2021). This inquiry focuses on

identifying whether “the event of legal consequence”—”the specific conduct

regulated in the statute”—occurred before or after the statute’s effective date. Id.

Tradesmen offers no argument on the proper event of legal consequence

here. The majority thus had to do Tradesmen’s work for it, constructing the proper

analysis from scratch—largely untested by the adversarial process. And I’m not
17

sure we’ve gotten it right. The majority concludes that “contract formation” is the

event of legal consequence. But section 537A.5 doesn’t prohibit the formation of

contracts with indemnity clauses or put any consequence on parties who enter into

those contracts; it just states that an indemnity clause “is void and unenforceable.”

Iowa Code § 537A.5(2). So is the statute best understood as regulating formation

or enforcement of contracts? Or for this anti-indemnity-clause statute, maybe the

conduct regulated is the allegedly negligent actions for which indemnification is

sought? We haven’t seen briefing on these questions. Indeed, Calabretto is

particularly disadvantaged by not having the chance to respond with its view of the

proper analysis of an issue it is seeing for the first time in the majority’s opinion.9

Even setting aside this threshold issue, Tradesmen also offers little support

for its favored interpretation that section 537A.5 does not apply to preexisting

contracts. Neither Tradesmen nor the federal court in Best Buy considered two

on-point cases addressing similar statutes. Compare Aetna Ins. Co. v. Chi. Great

W. R.R. Co., 180 N.W. 649, 650–51 (Iowa 1920) (holding that a statute voiding

certain liability releases “in any lease or contract” applied to a lease executed

before enactment of statute because “[t]here is nothing in the language of the

statute restricting its meaning to leases or contracts of a subsequent date”), with

Anderson Fin. Servs., LLC v. Miller, 769 N.W.2d 575, 578–82 (Iowa 2009) (holding

9 Even without argument from Tradesmen—or analysis from the district court—to

respond to, Calabretto still homes in on this temporal issue in its reply brief. While
Calabretto does not cite Hrbek or apply that analysis, it intuitively argues that we
should distinguish Best Buy because the allegedly negligent actions here occurred
after the statute’s effective date, but in Best Buy, they occurred before enactment.
See Best Buy, 2011 WL 13228239, at *1. Calabretto also highlights that even the
Best Buy lawsuit itself was filed before enactment of the statute. See id.
18

that a statute providing that “[a] lender shall not contract for or receive a finance

charge exceeding twenty-one percent” did not apply to existing contracts because

“[t]he language ‘contract for’ does not unavoidably imply an intent to reach past

transactions” and the attorney general conceded that “or receive” was irrelevant to

the issue). At least tentatively, I do not see the daylight between the wording of

section 537A.5 and the statute in Aetna that the majority does.10 But I would

benefit from briefing by the parties on how these cases—and maybe others—

govern the proper interpretation of section 537A.5 before deciding this question

too. Again, we have none.

To be sure, concluding that section 537A.5 would apply to preexisting

contracts is not without complications. Such an interpretation would implicate the

contracts clauses of the United States and Iowa constitutions. See U.S. Const.

art. I, § 10, cl. 1 (“No State shall . . . pass any . . . Law impairing the Obligation of

Contracts.”); Iowa Const. art. I, § 21 (“No . . . law impairing the obligation of

contracts, shall ever be passed.”); see also Hrbek, 958 N.W.2d at 782 (noting we

must consider any constitutional problems with retrospective application if we get

to the final step of the retroactivity analysis). Neither constitutional provision has

recently been interpreted to be as strict and absolute as its text may appear;

instead, a rather extensive three-step inquiry is needed to decide whether a statute

passes constitutional muster. See Equip. Mfrs. Inst. v. Janklow, 300 F.3d 842, 850

10 Section 537A.5 provides that an indemnity clause in a construction contract “is

void and unenforceable” and broadly defines construction contracts as including
“all public private, foreign, or domestic agreements as described in this
subsection,” except for various public road contracts. Iowa Code § 537A.5(1)–(2)
(emphasis added). Rather than applying to “all” contracts, the statute in Aetna
applied to “any lease or contract.” Aetna, 180 N.W. at 650 (emphasis added).
19

(8th Cir. 2002); Adair Benevolent Soc’y v. State, 489 N.W.2d 1, 5 (Iowa 1992). Yet

again, we are in the dark—without briefing to help navigate these issues. But the

“constitutional icebergs” still lurk. Simmons v. State Pub. Def., 791 N.W.2d 69, 74

(Iowa 2010). So this is another reason for us to steer clear for now.

What’s more, our ruling here has broader implications—not just for this

construction-contract statute—but for similar statutes. Section 537A.5 is not alone

in voiding contract terms without distinguishing between existing and post-

effective-date contracts. See Iowa Code §§ 322A.19–322A.23 (voiding many

terms in motor-vehicle-franchise contracts); id. § 523G.9 (voiding waiver terms in

invention-development contracts); id. § 537A.6(2) (voiding choice-of-law and

choice-of-forum terms in in-state-construction contracts); id. §§ 714E.5, 714E.9

(voiding waiver and arbitration-clause terms in foreclosure-consultant contracts);

see also 2023 Iowa Acts ch. 17, § 4 (to be codified at Iowa Code § 715D.4(4))

(voiding terms that “waive or limit in any way” consumer-data-privacy rights under

a statute that will take effect January 1, 2025). Deciding the retroactivity issue here

thus casts doubt on whether all these statutes apply to existing contracts as well.

For these many reasons, I would refrain from deciding here whether

section 537A.5(2) could apply to void a provision in a contract executed before the

statute was enacted. The answer to that tough question does not affect this

appeal. So we should wait to give the answer in a case in which it matters. See

Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 372–73 (1955) (counseling, when

faced with reaching “perplexing questions,” that “[t]heir difficulty admonishes us to

observe the wise limitations on our function and to confine ourselves to deciding

only what is necessary to the disposition of the immediate case”).