Appeal from the Iowa District Court for Muscatine County, Mark J. Smith, Judge.
Personal injury plaintiff appeals from the trial court's denial of his motion for new trial.
Stephen T. Fieweger of Katz, Huntoon & Fieweger, P.C., Moline, Illinois, for appellant.
Robert T. Park and Abigail C. Waeyaert of Califf & Harper, P.C., Moline, Illinois, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Personal injury plaintiff Mark Peak appeals from the trial court's denial of his motion for new trial following a jury verdict. He argues the court erred in instructing the jury. We affirm.
I. Background Facts and Proceedings.
In February 2008 Mark Peak was seriously injured while helping Ellis and Rachel Adams move into their new home. Peak accompanied Ellis and Rachel to the U-Haul rental office and waited in the car while they went into the rental office together. Ellis drove the U-Haul truck during the moving process. After the U-Haul truck's final trip to the new home, the truck became stuck in the snow covering the gravel driveway. Ellis and Rachel wanted to return the truck that afternoon in order to avoid being charged a second day's rental. Peak put a piece of plywood under the rear wheels for traction. Peak, Rachel, and others pushed on the rear of the truck while Ellis drove. When Ellis accelerated, the plywood was propelled backward and it struck Peak's leg. Peak's subsequent medical expenses exceeded $50, 000.
Peak hired attorney Stephen Fieweger to represent him, and Fieweger contacted insurance companies on Peak's behalf. Republic Western Insurance Company's claims administrator wrote Fieweger and advised U-Haul was offering its policy limits of $20, 000. She enclosed a document entitled "RELEASE OF ALL CLAIMS" stating Peak releases Ellis Adams, [U-Haul, Republic Western] . . . and all . . . agents [or] principals . . . of those hereby released." On the advice of his attorney, Peak signed the release in October 2008. Republic Western's check was received and cashed.
Fieweger also asserted a claim under the Adams's automobile liability insurance policy with Country Mutual. Country Mutual denied coverage on the grounds Peak's release discharged the liability of Ellis and Rachel. In December 2008 Fieweger wrote to the Republic Western claims administrator: "Unbeknownst to us you put language in the Release of All Claims that released Ellis Adams from any and all claims." Fieweger included an amended release, but Republic Western refused to accept the amendment.
In January 2009 Peak filed a common law negligence action against Ellis and Rachel. Ellis and Rachel denied liability, raised Peak's release as an affirmative defense, and filed a motion for summary judgment. The district court granted summary judgment and dismissed the petition. The court ruled Ellis and Rachel jointly rented the truck, as alleged in Peak's petition, and Rachel was covered by the release.
Peak appealed and this court reversed, ruling questions of fact existed as to the parties' intent to release Ellis and Rachel. See Peak v. Adams, No. 09-1471, 2010 WL 2079692, at *4 (Iowa Ct. App. May 26, 2010). On further review, the Iowa Supreme Court reversed the trial court in part and affirmed in part and ruled the release "unambiguously discharges Peak's claims against Ellis Adams." Peak v. Adams, 799 N.W.2d 535, 543 (Iowa 2011) (stating Peak's failure to read the release does not avoid its effect). After noting "[a]gency is generally a question of fact, Rachel's marriage to Ellis is a factor to consider in determining if an agency relationship existed, " and Rachel and Ellis "used the U-Haul truck together on their joint marital endeavor to move shared belongings from their old residence to their new home, " the court concluded "there is a genuine issue of material fact whether Ellis and Rachel were in an agency relationship within the meaning of the release." Id. at 547. "[W]hether the release discharged [Rachel] as an agent or principal of Ellis" is for the trier of fact to resolve on remand. Id. at 548.
Peak filed a second amended petition alleging Rachel was negligent.Rachel again asserted the release as a defense. She alleged "[a]t the time of the occurrence, defendant, Rachel Adams, and her husband, Ellis Adams, were co-agents, engaged ...