Simon Estes vs. Progressive Classic Insurance Company

IN THE SUPREME COURT OF IOWA
No. 09–1673
Filed January 27, 2012
SIMON ESTES,
Appellee,
vs.
PROGRESSIVE CLASSIC INSURANCE COMPANY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Todd A. Geer (prior summary judgment ruling) and Jon C. Fister,
Judges.
An insurance company requests further review of a court of
appeals decision affirming an adverse judgment in an underinsured
motorist action. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN
PART, AND CASE REMANDED WITH DIRECTIONS.
Steven T. Durick and Joseph M. Barron of Peddicord, Wharton,
Spencer, Hook, Barron & Wegman, LLP, West Des Moines, for appellant.
David J. Dutton and Erin Patrick Lyons of Dutton, Braun, Staack
& Hellman, P.L.C., Waterloo, for appellee.

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WIGGINS, Justice.
This case involves a dispute between an insured and his insurance
company regarding underinsured motorist benefits. The district court
denied the insurance company’s motion for summary judgment. The
case proceeded to trial. The jury returned a verdict in favor of the
insured, and the district court entered judgment in favor of the insured
with interest running from the date the insured filed his action against
the insurance company. The insured filed a motion to modify the
judgment, asking the court to amend the judgment to start the running
of interest from the date the insured filed his action against the original
tortfeasors. Over the insurance company’s objection that the insured did
not timely file his motion, the district court modified the judgment to
start the running of interest from the date the insured filed his action
against the original tortfeasors.
The insurance company appealed. Our court of appeals affirmed
the district court. We granted further review. In this appeal, we must
determine whether an order denying a motion for summary judgment is
reviewable and whether the insured timely filed his posttrial motion.
On further review, we find that the order denying the insurance
company’s motion for summary judgment is not reviewable.
Additionally, we find that the insured failed to timely file his posttrial
motion and that the district court erred when it considered the motion.
Accordingly, we vacate the decision of the court of appeals. We affirm
that part of the district court’s judgment requiring the insurance
company to pay its underinsured motorist limit to the insured. We
reverse that part of the judgment awarding interest from the date the
insured filed the original action against the tortfeasors and remand the
case to the district court to enter judgment with the interest running

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from the date the insured filed his petition against the insurance
company.
I. Background Facts and Proceedings.
In October 2005, Simon Estes was in the tire and battery center of
Sam’s Club in Waterloo, Iowa. With the permission of an employee, he
entered the work area of the tire center. Another customer, Annette
Rivers, drove into the tire center at a high rate of speed and struck Estes.
The collision knocked Estes to the floor and injured him.
At the time of the accident, Estes maintained an automobile
insurance policy with Progressive Classic Insurance Company. His
policy contained coverage for an underinsured motorist for up to
$300,000.
Estes filed suit against Rivers and Sam’s Club in June 2006.
Rivers’ liability limit was $250,000 and Sam’s Club’s liability limit was
$9,950,000. The parties reached settlement agreements. Specifically,
Estes settled with Rivers for $231,449 and with Sam’s Club for $75,000.
Estes sought and received Progressive’s consent to settle with Rivers.
Estes, however, did not seek or receive Progressive’s consent for the
settlement with Sam’s Club.
After settling with Rivers and Sam’s Club, Estes brought an action
in September 2007 against Progressive to collect underinsured motorist
benefits. Progressive sought summary judgment, relying on provisions of
Estes’s policy. In summary, Progressive contended Estes violated his
insurance policy by failing to obtain Progressive’s consent to settle his
claim with Sam’s Club, as required by the consent-to-settlement clause
of the policy. Progressive also alleged that Estes should not be allowed to
recover under the policy because he had not alleged damages in excess of
“all applicable bodily injury, liability bonds or policies” of Rivers and

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Sam’s Club, as required by the policy. Progressive characterizes the
latter clause as an exhaustion clause.
The district court denied Progressive’s motion, concluding that the
insurance policy did not contain an explicit consent-to-settlement clause
with a tortfeasor, such as Sam’s Club, and that, if the consent-to-
settlement clause did apply to Sam’s Club, a fact issue had been
engendered as to whether Estes’s settlement with Sam’s Club prejudiced
Progressive. The district court further held that it could not determine
whether the alleged “exhaustion clause,” relied upon by Progressive,
would limit recovery because only the fact finder could determine if
Estes’s damages exceeded the applicable policy limits.
The case proceeded to trial. The parties submitted the case only
on the issue of damages. In other words, the jury decided only the total
amount of Estes’s damages caused by the collision on the day of the
injury. The jury did not assess fault between Rivers and Sam’s Club.
The jury determined Estes’s damages from the accident were
$1,189,486.11. The court entered a judgment against Progressive for
$300,000, the limit of Estes’s underinsured motorist coverage, plus
interest, calculated from the date he filed his action against Progressive.
Progressive filed a motion for new trial within the time allowed for
filing such a motion. Estes filed a motion to modify the judgment,
contending the interest on the judgment against Progressive should be
calculated as of the date Estes filed suit against Rivers and Sam’s Club
in the underlying tort suit, rather than as of the date Estes filed his suit
against Progressive. Estes filed his motion after the ten-day time limit for
filing posttrial motions had expired. The district court denied
Progressive’s motion for new trial and granted Estes’s motion. The court

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entered judgment against Progressive with interest calculated as of the
date Estes filed the tort action against Rivers and Sam’s Club.
Progressive appealed, arguing the district court erred by denying
its motion for summary judgment and in granting Estes’s motion to
modify the judgment by calculating interest from the date of the filing of
the underlying tort case.
The court of appeals affirmed the district court on all of the issues
raised on appeal. Progressive sought further review. We granted
Progressive’s application.
II. Appeal of Summary Judgment Ruling.
An order overruling a motion for summary judgment is a
nonreviewable order when the district court finds a genuine issue of
material fact exists and the case proceeds to final trial. Klooster v. N.
Iowa State Bank, 404 N.W.2d 564, 567 (Iowa 1987). We have
consistently applied this rule when presented with an appeal from the
denial of a motion for summary judgment once the case has proceeded to
trial. See, e.g., In re Marriage of Johnson, 781 N.W.2d 553, 556 (Iowa
2010); Lindsay v. Cottingham & Butler Ins. Servs., Inc., 763 N.W.2d 568,
572 (Iowa 2009); Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004). Our
court of appeals has also applied this rule. See, e.g., Neuroth v. Preferred
Cartage Serv., Inc., No. 05-0320, 2006 WL 2871997, at *3 (Iowa Ct. App.
Oct. 11, 2006). When the district court denies a party’s motion for
summary judgment and the party appeals the final verdict, we review the
issues raised in the unsuccessful motion for summary judgment based
on the record made during trial and on the motion for directed verdict to
determine if the district court committed error. Klooster, 404 N.W.2d at
567.

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The facts of this case illustrate the reason for this rule. On first
glance, it seems logical that Estes’s settlement with Sam’s Club
prejudiced Progressive’s rights because Sam’s Club had a liability limit of
$9,950,000 and Estes’s damages were only $1,189,486.11. By giving
Sam’s Club a release, Progressive was precluded from exercising its
subrogation rights against Sam’s Club for the $300,000 it is obligated to
pay Estes under the underinsured motorist provision.1 However, this
simplistic view does not consider the effect of Iowa Code chapter 668 in
the trial of a tort claim.
The Iowa Comparative Fault Act found in chapter 668 of the Code
governs the underlying tort claims against Rivers and Sam’s Club.
Progressive must show it suffered prejudice. See Kapadia v. Preferred
Risk Mut. Ins. Co., 418 N.W.2d 848, 852 (Iowa 1988) (holding an “insurer
may establish the breach of the consent-to-settlement clause as an
affirmative defense to recovery on the underinsurance endorsement if it
proves that, absent such a breach, it could have collected from the tort-
feasor under its rights embraced by the contractual subrogation clause”).
Under this record, Progressive cannot show any prejudice because the
percentage of fault, if any, attributable to Sam’s Club was not
established.
Chapter 668 requires the court to instruct the jury to assess a
percentage of fault to each tortfeasor. Iowa Code § 668.3(2) (2005).
Moreover, chapter 668 abrogated the common law rules of joint and
several liability. Id. § 668.4. Under chapter 668, only a person found to
be fifty percent or more at fault is jointly and severally liable for economic
damages. Id. In this case, we do not know what percentage of fault was
1This is assuming, without deciding, that the consent-to-settle and the
exhaustion clauses apply to Sam’s Club.

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attributable to Rivers and what percentage was attributable to Sam’s
Club.
If the jury returned a verdict finding Rivers to be ninety-five
percent at fault and Sam’s Club five percent at fault, Rivers would be
responsible for ninety-five percent of the $1,189,486.11 verdict, or
$1,130,011.80, while Sam’s Club would be responsible for five percent of
the verdict, or $59,474.31. Under this scenario, Progressive would still
owe its policy limit to Estes because the judgment against Rivers would
exceed her policy limit of $250,000 by more than $300,000.
Progressive’s rights under the policy would not be prejudiced because
Sam’s Club would have paid $75,000 when its liability was only
$59,474.31. Therefore, Progressive could not make a claim against
Sam’s Club for any damages it caused Estes at the time of the collision.
On the other hand, if the jury determined Rivers and Sam’s Club
were each fifty percent at fault, Rivers and Sam’s Club would each be
responsible for one-half of Estes’s damages. Under this scenario, if Estes
did not release Sam’s Club when he settled with them, then Progressive
might have a subrogation claim against Sam’s Club for the difference
between the $75,000 Sam’s Club paid Estes and the liability assessed by
the jury against Sam’s Club, up to the $300,000 policy limits it is
required to pay Estes.
The problem with deciding this appeal is that we do not have a
transcript to determine if Progressive asked the court to instruct the jury
to apportion fault between Rivers and Sam’s Club.2 Thus, we do not
know whether Progressive raised and preserved the issues it raised in its
2Progressive indicated in its combined certificate that it would not order a
transcript in this appeal because it chose only to appeal the denial of the motion for
summary judgment.

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motion for summary judgment on the consent-to-settle or the exhaustion
clauses after the court overruled its motion for summary judgment.
Progressive has the duty to provide this court with a sufficient record
disclosing the error upon which it relies. In re F.W.S., 698 N.W.2d 134,
135 (Iowa 2005). Failure to provide a record requires us to affirm the
district court’s judgment. Alvarez v. IBP, Inc., 696 N.W.2d 1, 4 (Iowa
2005). Without Progressive asking the court to apportion fault between
the parties, it failed to preserve error on the applicability of the consent-
to-settle and exhaustion clauses.
Therefore, we will not review the denial of Progressive’s motion for
summary judgment concerning its arguments on the consent-to-settle
and exhaustion clauses, and we affirm the judgment of the district court
on the issue of damages.
III. Appeal of the Interest Issue.
On the day the jury returned its verdict, the court entered the
judgment for Estes with interest running from the date he filed the
petition in the underinsured motorist case. Within the time required by
rule 1.1007, Progressive asked for a new trial or remittitur claiming the
verdict was excessive. After the time ran for the filing of posttrial
motions, Estes filed a motion asking for the interest to start running
from the time of the filing of the underlying tort suit against Rivers and
Sam’s Club. Progressive resisted the motion as untimely. The district
court and the court of appeals decided that Progressive’s filing of the
motion for a new trial tolled the time for Estes to file his motion to modify
the judgment.
To decide this issue we must interpret our rules of civil procedure.
Thus, our review is for correction of errors at law. City of Sioux City v.
Freese, 611 N.W.2d 777, 779 (Iowa 2000).

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Our rules of civil procedure require that a party must file a motion
for new trial under rule 1.1004
within ten days after filing of the verdict, report or decision
with the clerk or discharge of a jury which failed to return a
verdict, unless the court, for good cause shown and not ex
parte, grants an additional time not to exceed 30 days.
Iowa R. Civ. P. 1.1007.3 The ground for Estes’s motion was that the law
required the court to begin running interest on the judgment from the
date Estes filed his petition against Rivers and Sam’s Club, rather than
from the date he filed the petition against Progressive. This ground is
one of the grounds found in rule 1.1004. The rule provides:
On motion, the aggrieved party may have an adverse verdict,
decision, or report or some portion thereof vacated and a
new trial granted if any of the following causes materially
affected movant’s substantial rights:
. . . .
(6) That the verdict, report or decision is not sustained by
sufficient evidence, or is contrary to law.
Id. r. 1.1004(6). The rules of civil procedure define a new trial as “the
reexamination in the same court of any issue of fact or part thereof, after
a verdict, or master’s report, or a decision of the court.” Id. r. 1.1002.
The court’s original decision as to the time when interest begins to run is
a decision of the court that the court could later vacate, entering a new
decision with a different interest calculation. Thus, Estes was required
to file the motion to modify the judgment within ten days of the entry of
the original order awarding interest.
3The court amended this section, effective October 4, 2010, to provide fifteen
days in which to file a posttrial motion.

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Estes argues that the filing of the motion for new trial by
Progressive tolled the time he had to file his motion to modify the
judgment. We disagree.
We have always strictly enforced the time in which a party has to
file posttrial motions. See Cownie v. Kopf, 199 Iowa 737, 739, 202 N.W.
517, 518 (1925) (holding the court would not consider a late-filed
posttrial motion). We also have a rule that, after the expiration of time
for the filing of posttrial motions, we will not allow an amendment to a
posttrial motion if that amendment raises a new ground that is not
germane to the original timely filed motion. Julian v. City of Cedar
Rapids, 271 N.W.2d 707, 708 (Iowa 1978); Mitchell v. Heaton, 227 Iowa
1071, 1073, 290 N.W. 39, 40 (1940). This rule dates back to 1866.
Sowden & Co. v. Craig, 20 Iowa 477, 478 (1866).
If we strictly construe the time for filing a timely posttrial motion
and have a rule that a timely posttrial motion does not toll the time for
the person filing the motion to assert a new ground, we cannot logically
hold that a timely filed motion by an opponent tolls the time for the filing
of a posttrial motion for the other party. Consequently, Estes’s motion to
modify the judgment was untimely, and the district court should not
have considered it. Therefore, the court erred when it modified the date
upon which interest began accruing to the date Estes filed his underlying
tort action.
IV. Conclusion and Disposition.
In regards to the consent-to-settle and exhaustion clauses,
Progressive only appealed the district court’s ruling denying its motion
for summary judgment, a ruling that is not reviewable once the case is
tried. Estes did not timely file his motion to modify the judgment. Thus,
the district court should not have considered it. Therefore, we vacate the

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decision of the court of appeals. Accordingly, we affirm that part of the
judgment of the district court requiring Progressive to pay its
underinsured motorist limit of $300,000 to Estes. We reverse that part
of the judgment awarding interest from the date Estes filed the original
action against the tortfeasors and remand the case to the district court to
enter judgment with the interest running as entered in the original
interest award. Costs are assessed fifty percent to appellant and fifty
percent to appellee.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
CASE REMANDED WITH DIRECTIONS.
All justices concur except Mansfield, J., who takes no part.

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