from the Iowa District Court for Scott County, Marlita A.
Mutual Casualty Company appeals from the ruling granting John
H. Smith summary judgment in its breach-of-contract action.
Stephanie L. Hinz and Matthew G. Novak of Pickens, Barnes
& Abernathy, Cedar Rapids, for appellant.
William J. Bribriesco of Bribriesco Law Firm, P.L.L.C.,
Bettendorf, for appellee.
by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J., [*] but decided by
Vaitheswaran, P.J., Mahan, S.J., and Vogel, S.J.
Mutual Casualty Company (EMC) appeals from the ruling
granting John H. Smith summary judgment in its
breach-of-contract action. Because the district court erred
in applying defensive issue preclusion, we reverse and remand
for further proceedings.
Background Facts and Proceedings.
following facts are undisputed.
suffered a work-related injury.
February 19, 2013, Central Petroleum employee Smith was
injured while performing work when a motorist, Sandra Boyer,
struck and pinned him between the front of her vehicle and
the rear of his work vehicle. Smith received workers'
compensation payments from his employer's workers'
compensation insurer, EMC, subject to its right of
subrogation under Iowa Code section 85.22 (2013).
April 14, 2014, the legal assistant for Smith's attorney
wrote to counsel for EMC:
As you know, we represent Mr. John Smith for injuries
received on or about February 19, 2013.
The tortfeasor's [Boyer's] insurance carrier has
offered to pay the $100, 000 policy limits. According to your
last correspondence dated March 26, 2014, your work comp lien
totals $107, 924.21. Mr. Bush [Smith's counsel] is
requesting the following:
1.Mr. Bush's normal practice and procedure is to request
you take a reduction of 1/3 of the lien amount making the
total lien $71, 949.48. Please let me know If you are
agreeable to this arrangement?
2. Mr. Smith has a $1, 000, 000.00 underinsurance policy.
With that being said, we are asking that at this time Mr.
Smith pay 1/3 of the lien now ($23, 983.16) out of the $100,
000 and pay the remaining 2/3 ($47, 966.32) out of the
underinsurance settlement ...