Your Insurance Company Generally Has No Duty To Warn You Of Policy Time Limits

Insurance policies frequently include time limits on filing suit against the insurance company.  The time limit can be as short as one year.  Such time limits can be binding and enforceable under Iowa law.  Failure to file suit within the policy time limit can permanently extinguish your legal rights against your insurance company.

So does your insurance company have an obligation to warn you about policy time limits for filing suit, especially if the time limit is about to expire?  The Iowa Supreme Court has consistently said “no,” with one exception.  The exception to the general rule is that your insurance may have an obligation to tell you about policy time limits if you specifically ask.  But that exception applies only if you ask; you’re out of luck if you’re unaware of the policy time limit because you don’t have a copy of your insurance policy and didn’t ask for a copy.

You’re even less likely to get around an expired policy time limit if you had a lawyer before the time limit expired, especially if your attorney was in contact with the insurance company about your claim.  Failing to respond to inquiries from the insurance company, particularly when you have an attorney, is definitely a surefire way to have your claim eliminated by an expired policy time limit.

So what can you take away from this?  First, it’s best to have an attorney assist you with your insurance law claim.  Second, and regardless, make sure you have or request a copy of your insurance policy and read it.  Third, if your insurance policy includes any time limits for filing suit against your insurance company, assume that the time limits are valid and enforceable.  Finally, make sure you file suit against your insurance company within any such time limits because you may permanently forfeit your rights against your insurance company if you don’t.

An Analysis Of The Chris Kluwe Controversy And The Right To Speak One’s Mind

Former NFL punter Chris Kluwe, who played for the Minnesota Vikings until the Vikings released him before the start of the 2013 NFL season, recently made headlines when he claimed that the Vikings cut him because of his well-publicized support for gay rights in Minnesota, not because of his football performance.  It’s difficult to research this question because there are 32 NFL teams and thousands of former NFL players, but this has to be a rare, if not the only, instance of an NFL player asserting that his team released him under circumstances that make it sound an awful lot like a wrongful termination case.  Kluwe has stated that he hopes litigation over his release can be avoided, but what exactly would his legal rights be?  I can’t analyze how Minnesota state law would apply to this question, but I can look at it from a federal legal angle.

Kluwe likely has no federal legal rights because federal law currently does not recognize sexual orientation as a protected characteristic.  Federal law prohibits discrimination based on race, sex, religion, age, disability, and national origin.  It’s also illegal under federal law for an employer to fire an employee because that person opposes workplace discrimination along those lines.  But even if federal law did recognize sexual orientation as a protected characteristic, that probably wouldn’t help Kluwe because he was taking a political, not workplace, stand regarding gay rights.  Moreover, Kluwe would probably be considered an independent contractor, not an employee, of the Vikings.  The federal civil rights/employment laws only protect employees, not independent contractors.

Okay, so Kluwe was making a political point.  That’s as American as can be; it therefore must be illegal for a private business to terminate someone because of that person’s politics, right?  Nope. While every U.S. citizen is entitled to the rights guaranteed by the First Amendment, including the right to free speech, free speech rights can only be asserted against the government.  The right to free speech does not apply to private settings that lack government involvement, such as your living room or a private business.  Thus, for private employers and businesses, people have no First Amendment right to say or do whatever they wish.  Only government employees are protected from retaliation for exercising their free speech rights.

I’m sure that if Kluwe sues the Vikings he’ll assert some sort of breach of contract claim.  I can’t analyze that because I don’t have a copy of Kluwe’s Vikings contract.  But there’s enough prestige and publicity waiting in the wings on this one that a team of lawyers will likely bend over backwards to find a way to bring a meritorious lawsuit against the Vikings if Kluwe so chooses.

No matter how Kluwe comes at the Vikings in a lawsuit, the ultimate question will always be: Why did the Vikings draft a punter in 2013 and then replace Kluwe with that rookie punter?  That of course is what cases like this always come down to – Why did the defendant do what it did?  Was it for legitimate reasons or because of spite or ill-will?  The Vikings will always maintain that they released Kluwe solely for football performance reasons, i.e., the punter they drafted was better than Kluwe, and NFL teams rarely keep two punters on the roster, so Kluwe was released.  Kluwe will argue the opposite, that his football performance was fine and it was his public support of gay rights that cost him his Vikings position.  If nothing else, such a lawsuit should provide a rare and fascinating deep look into how an NFL team makes final roster decisions.

Negligence Liability For Failing To Remove Accumulated Snow

Not surprisingly, failure to clear your sidewalks of snow can get you sued if someone falls on the snow and gets hurt.  Even though property owners aren’t responsible for the fact that it snowed or how much or how long it snowed, they still have to remove it in a reasonable and timely manner.  The Iowa Supreme Court has issued decisions in the past that concerned liability for negligent snow removal.

The duty to remove natural accumulations of snow is based on actual or constructive notice of the snow accumulation and a reasonable period of time within which to remove it.  In other words, the property owner has to know that snow has accumulated and have time to remove the snow before there can be liability for negligence.  Regarding the timeliness of snow removal, the Iowa Supreme Court does not require property owners to remove a snow accumulation before a snowfall has ended.

The requirements of notice and an opportunity to remove the snow only apply to situations involving natural accumulations of snow.  They do not extend to situations in which the property owner has control over the condition that caused the snow to accumulate.  Examples of such an artificial condition include landscaping and architectural design.  A property owner is presumed to know about an artificial snow accumulation.

Liability can also arise by doing a shoddy job of snow removal.  Poor snow removal alters the natural snow accumulation and turns it into an unnatural accumulation.  So does removing the snow and depositing it elsewhere; if someone falls in the area where the snow was deposited after removal, that’s considered an injury caused by an unnatural accumulation of snow.  Another possibility is removing snow and depositing it in the street or creating a large snowbank that restricts visibility, either of which can cause a car accident.  Under any of those scenarios, the stricter liability rules for removal of unnatural snow accumulation apply rather than the more lenient standards for removal of natural snow accumulations.

The “Contact Sports” Exception For Physical Injuries Suffered While Playing A Sport

Iowa law recognizes that participants in certain types of activities or circumstances owe less of a duty of care to other participants.  In other words, in certain situations it’s harder to sue someone than it’d normally be.  Those instances normally involve situations in which someone has voluntarily exposed themselves to a greater risk of harm and thus can’t be heard to complain when harm occurs.

One such activity that has been identified as an exception is contact sports.  Participants in contact sports are not governed by the general rules of negligence.  Rather, participants in contact sports are merely required to refrain from reckless or intentional conduct.  This standard recognizes that known risks associated with a contact sport are assumed by participants in the sport and that it is contrary to the competitiveness of contact sports to impose a duty on participants to protect co-participants from such known and accepted risks through the exercise. So participants in contact sports are not completely free from legal responsibility for their conduct that creates a risk of injury, but they do enjoy a substantially lower duty of care in protecting other participants.  This applies not only to the conduct that occurs within the rules and objectives of the sport, but also by conduct from participants who fail to properly execute an activity contemplated by the sport or who violate the sport’s rules.

So what is a contact sport?  This analysis does not focus on whether the participants were engaged in a formally organized or coached sport, but instead centers on whether the activity inherently involves the risk of injurious contact to participants.  Not all sports inherently involve contact capable of injury.  The purpose of deciding whether an activity is a contact sport is to determine if the risk of harm of injurious contact was known and understood as a part of the sport. If the risk of injury is a part of the sport, then the participants must only refrain from reckless or intentional conduct causing injury.

Once an activity has been identified as a “contact sport,” the injured party can only recover if the higher standard of recklessness is proved.  In order to prove recklessness, a plaintiff must show that the participant has intentionally done an act of an unreasonable character in disregard of a known risk or a risk so obvious that the participant must be taken to have been aware of it and so great as to make it highly probable that harm would follow.  An act performed by a participant in a sport that produces a radically different result from the normal and expected result of the act, even when performed negligently, gives rise to an inference that the result was purposeful.

The Iowa Court Of Appeals Rules That Motorcyclists Have No Right To Expect Cars To See Them

On December 18, 2013 the Iowa Court of Appeals upheld a defense verdict against a motorcyclist who sued for personal injuries after he was nearly hit by a car and crashed his bike trying to swerve around the vehicle.  The accident happened at one of Jordan Creek mall’s entrance/exit areas.  Interestingly, the defendant driver had a stop sign.  The motorcyclist had no stop sign and had the right-of-way.  The driver didn’t see the motorcyclist at first, pulled out in front of him, and caused the bike to crash when the rider had to make a choice between slamming into the side of the car or swerving around it.

The jury found that the other driver was not negligent.  The motorcyclist received no compensation for his physical injuries.  So how did the motorcyclist lose this case even though he didn’t have a stop sign and the other driver did?

One problem was that there wasn’t any contact between the car and the motorcycle.  Motorcycle cases can be more difficult to win when the bike doesn’t hit the other vehicle.  It’s almost like the biker would be better off biting the bullet, maintaining course, and smashing into the other vehicle.  Otherwise, motorcyclists will almost always face a defense argument that there was room to get around the vehicle and no need to take the evasive maneuver that led to the bike crashing.  And juries often agree.

I also wonder whether this motorcyclist was penalized for being on a bike instead of a more visible car or truck.  This quote from the decision certainly approves the “I didn’t see him” defense, but it’s not entirely clear whether the motorcycle’s small profile played a role: “The evidence in this case is clear that Swank did not see Barrett until after she proceeded into the intersection. It is additionally clear Swank looked forward and to both sides before moving the vehicle. Barrett’s argument faults Swank for failing to look over her shoulder and to the rear in order to see Barrett as he left 68th Street and turned to cross the frontage road.  Though . . . Swank had a duty to maintain and establish awareness of vehicles behind her, it does not follow that Swank was required to maintain awareness of a vehicle behind her, a distance to the side, and on another road.”  It’s interesting that this driver was able to see all the other vehicles at this intersection and yield the right-of-way to them, but somehow missed the motorcycle.

The court of appeals concluded its decision by laying blame with the motorcyclist for relying on his right-of-way and not anticipating that the other driver would fail to yield and pull out in front of him: “The situation that confronted Barrett was a foreseeable occurrence, which a prudent driver should reasonably anticipate. A driver pulling out into traffic at a stop sign in a busy mall parking lot is foreseeable. . . .”

The court of appeals doesn’t explain exactly what the motorcyclist was supposed to do in light of the apparent expectation that other drivers wouldn’t obey the law at the intersection.  Get off his motorcycle and walk it to the intersection?  Park on the side of the road until everyone leaves and he’s the only vehicle left in the parking lot?  Turn around and go home?  I think the Iowa Court of Appeals made a mistake in this case by concluding that the other driver wasn’t negligent.

Recovery Of Money Damages For Bystander Emotional Distress

Iowa law allows plaintiffs in some instances to recover damages for emotional distress damages caused by witnessing a loved one’s serious injury or possible death.  This claim is known as “bystander emotional distress.”  In the 1981 Iowa Supreme Court case that first allowed bystander emotional distress claims, the court gave a stark example of such a situation – A parent who sees her child run over by a car is allowed to sue for the horror caused by witnessing that tragedy.

When determining whether a bystander is allowed to seek emotional distress damages because of witnessing a catastrophic event, such as a motorcycle accident, Iowa’s courts consider (1) whether the bystander was located near the scene of the accident; (2) whether the emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Iowa’s courts are careful to ensure that the bystander’s claim is serious and has some guarantee of genuineness.  The law cannot compensate for every minor disturbance to a person’s mental wellbeing.  To be compensable, the bystander’s mental distress must be serious.  While mental distress may exist without objective physical symptoms, compensable mental distress should ordinarily be accompanied with physical manifestations of the distress.

In addition, a bystander emotional distress claim requires proof that a reasonable person in the bystander’s position would have reason to believe, and the bystander must believe, that the direct victim of the accident would be seriously injured or killed.  Not all injuries reach the level of severity necessary to give rise to a bystander emotional distress claim.  “Serious injury” means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Civil Money Damages Liability For Intentional Infliction Of Emotional Distress

Emotional distress damages are usually not available unless the plaintiff has also suffered physical injuries.  The Iowa Supreme Court has been careful to restrict the types of cases in which emotional distress damages can be recovered even without physical injury.  Once such claim is “intentional infliction of emotional distress.”  Under that theory, a plaintiff can recover damages for emotional distress regardless of whether a physical injury has also been suffered.

These claims are difficult to prove.  To be liable for the tort of intentional infliction of emotional distress, a plaintiff must prove (1) outrageous conduct by the defendant; (2) the defendant’s intentional causing, or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering from severe or extreme emotional distress; and (4) that the defendant’s outrageous conduct was the  cause of the emotional distress.  Iowa’s courts differentiate between “mere bad conduct” and “outrageousness.”

To satisfy the requirement that a defendant’s conduct be extremely egregious, mere insult, bad manners, or hurt feelings are insufficient.  Liability has been found only when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, a claim for intentional infliction of emotional distress only exists when the recitation of the facts to an average member of the community would arouse that person’s resentment against the defendant.

Liability under this theory can only be imposed for intentional or reckless behavior.  A person intends to inflict emotional distress when they want to cause distress, or know such distress is substantially certain to result from their conduct.  A person’s conduct is reckless if they know or have reason to know their conduct creates a high degree of probability that emotional distress will result and they act with deliberate disregard of that probability.

To establish “severe or extreme” emotional distress, a plaintiff must offer substantial evidence of emotional harm with direct evidence of either physical symptoms of the distress or a clear showing of a notably distressful mental reaction caused by the outrageous conduct.  The plaintiff must present more evidence than he or she just felt bad for a period of time.  A plaintiff must prove that he or she suffered extremely unpleasant mental reactions.

Recovery Of Money Damages For Assault And Battery

Along with negligence and other types of civil money damage claims, plaintiffs sometimes have the option of suing for assault and battery.  Assault and battery are intentional wrongs.  “Assault” refers to threats, fear, and the like that doesn’t result in actual physical contact while “battery” covers cases in which the defendant has intentionally made contact with the victim in some manner.

Assault and battery are separate claims.  An assault may not always be followed by a battery if the defendant stops the threatening behavior before it progresses to physical contact.  But once there’s unlawful physical contact a battery has occurred.  Thus an act battery is almost always preceded by an act of assault, although the assault may be extremely brief. 

An assault is an act done with the intent to put the victim in fear of physical pain or injury or in fear of physical contact thatwould be insulting or offensive.  The victim must reasonably believe that the act would be immediately carried out.  Threatening words alone do not constitute an assault unless it appears that the person has the ability to carry out the threat at the time the words were spoken.

There are two types of physical contact that may constitute a battery: (1) harmful contact and (2) offensive contact.  “Harmful” contact requires a physical impairment of the condition of the victim’s body or physical pain or illness.  Under the second type of battery, “offensive” contact, a defendant is subject to liability if the defendant acts intending to cause insulting or offensive contact with the victim or the victim’s imminent apprehension of such a contact and offensive contact with the victim directly or indirectly results.  An “offensive contact” battery claim does not require proof of a physical injury.  Bodily contact is offensive if it offends a reasonable sense of personal dignity.

Personal Injury Or Wrongful Death Cases Involving Children And Attractive Nuisances

Normally property owners are not responsible for a trespasser’s personal injuries or wrongful death on their property.  The reason for that is simple — A property owner can’t protect people that have no business being there and aren’t known to be there.   But children who are too young to appreciate danger are an exception to that general rule.  Under the “attractive nuisance” doctrine, property owners can be held liable for injuries to or the death of a young trespassing child.

Attractive nuisance claims are difficult to prove.  Iowa’s courts have been reluctant to ascribe a broad meaning to the concept of an “attractive nuisance.”  In fact, the Iowa Supreme Court sometimes seems to regret ever having recognized the attractive nuisance doctrine in the first place.

A sign of that regret is the supreme court’s strict concept of what constitutes an attractive nuisance.  A person suing for personal injuries to or wrongful death of a child must prove quite a bit to be successful:

• The property owner was aware or should have been aware that children were likely to enter the property.  Perhaps there’s something on the property that would attract young children and draw them onto it.  Or maybe the property is near a school, park, or some other area where children are frequently passing by.
• The property owner has something on the property that could clearly be harmful or deadly to children.
• The trespassing child is too young to comprehend the risk of the dangerous or deadly object on the property.
• The danger to children is greater than any difficulties that would confront the property owner if the owner eliminated the hazardous object or exercised caution to make the object safer.
• The property owner did not take reasonable safety measures to protect children from the dangerous or deadly object.

The attractive nuisance doctrine is a corollary of the special rules regarding child/vehicle car accidents.  Both recognize that in certain situations regarding young children adults must give more care than adults normally would for older children or adults.

Remedies For Partnership Disputes

I previously wrote about the rights and obligations between business partners and between partners and the partnership.  I also noted that a partnership agreement can help avoid many business disputes among partners or at least end a dispute before it becomes fullblown litigation.  But if litigation does arise, what are the available legal remedies?

First, business partners or partnerships can always bring standard legal claims such as breach of contract, fraud, defamation, or negligence.  Iowa Code 486A.405(2)(c) specifically allows legal claims involving partners or partnerships that arise independently of the partnership relationship.  Because of that, many partnership lawsuits can become complicated and involve many different claims, counterclaims, and defenses because each partner starts blaming the other partner(s) for everything that’s gone wrong or been done wrong for the past several years preceding the lawsuit.

Second, Iowa Code 486A.405 provides special remedies for partnership issues.  A partnership may maintain an action against a partner for a breach of the partnership agreement, or for the violation of a duty to the partnership, causing harm to the partnership.  A partner can also sue the partnership or another partner for legal or equitable relief, with or without an accounting as to partnership business.  Those types of claims by a partner can include enforcing the partner’s rights under the partnership agreement and enforcing the partner’s rights under Iowa’s partnership law (Iowa Code Chapter 486A).

Please note that, as with other types of litigation, partners or a partnership involved in a lawsuit are responsible for their own attorney fees and litigation expenses.  That’s one reason why it’s important to try to avoid or at least minimize partnership disputes before they get out of control.  Not many true “winners” emerge from a partnership lawsuit.