Opinion
No. 4-110 / 03-0701
Filed January 19, 2006
Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.
Plaintiffs appeal a district court summary judgment ruling dismissing their personal injury action against a municipality and its contractors. AFFIRMED.
Dennis Lawyer of The Lawyer Law Firm, Norwalk, for plaintiffs-appellants.
Guy Cook and Clark Mitchell of Grefe Sidney, P.L.C., Des Moines, for defendant-appellee City of Des Moines and defendant Flynn Company, Inc.
Jeffrey Goodman, West Des Moines, for defendants Falconite Inc. d/b/a Tri-State Signing, Inc. and NES Equipment Services Corporation.
Considered by Sackett, C.J., Miller, J., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Dennis Van Orsdall and Barbara Chapman appeal from the district court summary judgment ruling that dismissed their personal injury action against the City of Des Moines, Flynn Company, Inc., Falconite, Inc. d/b/a Tri-State Signing, Inc., and NES Equipment Services Corporation. We affirm the district court.
I. Background Facts and Proceedings.
The undisputed facts at the time of the summary judgment motion reveal the following. The City of Des Moines (City) contracted with Flynn Company, Inc. (Flynn) to act as general contractor on a highway construction project involving Highway 5 and Highway 28. Flynn obtained liability insurance, which named the City as an additional insured. The policy provided for the nonwaiver of governmental immunity defenses under Iowa Code section 670.4, and specifically stated the policy was intended to cover only claims not subject to section 670.4 governmental immunity defenses.
Flynn subcontracted with Falconite Inc. d/b/a Tri-State Signing, Inc. and NES Equipment Services Corporation (collectively Tri-State) to provide signage directing the flow of traffic through construction zones on Highway 28. At all relevant times and places Highway 28 was a four-lane highway, divided at most places by a low, concrete median into two southbound and two northbound lanes. During Phase 3 of the project Tri-State placed lines, markers and barricades that directed southbound traffic on Highway 28 into the western-most northbound lane of Highway 28, then redirected the traffic back into the southbound lanes. The placement of the relevant lines, markers and barricades was in compliance with the Traffic Control Plan prepared by the City Engineer's Office, the Manual of Uniform Traffic Control Devices, Iowa Department of Transportation standards, and special contract provisions.
During Phase 3 when southbound traffic was traveling in the western-most northbound lane its path was marked on the left (east) with orange and white reflective tubular markers placed between divided yellow lines, and to the right (west) by a white line painted a short distance off the edge of the raised median. The southbound traffic was redirected into the southbound lanes at a break in the median. The reflective tubular markers to the drivers' left (east) continued along a diagonal yellow line that ran from the east edge of the temporary southbound lane up to the east edge of the southbound lanes. The white line on the right (west) continued around the end of the median and then diagonally across both southbound lanes to the west edge of the two southbound lanes. Orange and white reflective Type II barricade channeling devices were placed along the white line from the end of the median to the middle of the two southbound lanes.
There was a break in the line of tubular markers to allow southbound traffic to turn left or east onto an intersecting street.
At approximately 9:30 p.m. on July 8, 2000, while the foregoing Phase 3 signage was in place, Dennis Van Orsdall was operating his motorcycle southbound on Highway 28. Barbara Chapman was a passenger on the motorcycle. Van Orsdall drove into the construction zone and successfully transitioned from the southbound lanes into the western-most northbound lane. However, when he attempted to reenter the southbound lanes of the highway, he did not stay to the left of the white line and Type II barricades, but drove across the white line, to the right of the Type II barricades, and struck the raised curb of the median. Van Orsdall lost control of the motorcycle, which allegedly resulted in injuries to both himself and to Chapman.
Van Orsdall and Chapman filed a personal injury lawsuit against the City, Flynn, and Tri-State, alleging they had posted misleading signage, negligently failed to eliminate a roadway hazard, and negligently failed to notify the plaintiffs of a hazardous roadway condition. The defendants sought summary judgment and dismissal of the petition, requests which were granted by the district court. The court determined the defendants were immune from liability under Iowa Code section 668.10(1) (2001), and the insurance coverage obtained by Flynn did not work to waive that immunity. Van Orsdall and Chapman filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was denied by the district court.
Van Orsdall and Chapman then appealed. Before the matter was submitted to this court, Tri-State filed for bankruptcy. The appeal was accordingly stayed pending resolution of the bankruptcy proceedings. Van Orsdall and Chapman have now notified this court they will not be proceeding with their claims against Tri-State, and intend to proceed against the City only. We accordingly decide only whether the claims against the City were properly dismissed upon summary judgment.
II. Scope and Standard of Review.
In this action at law, we review the district court's grant of summary judgment for the correction of errors at law. Iowa R. App. P. 6.4; General Car Truck Leasing Sys., Inc. v. Lane Waterman, 557 N.W.2d 274, 276 (Iowa 1996). The court reviews the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996). All facts are viewed in the light most favorable to the party opposing the motion. Bearshield v. John Morrell Co., 570 N.W.2d 915, 917 (Iowa 1997). Where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Iowa R. Civ. P. 1.981(3); City of West Branch, 546 N.W.2d at 600.
III. Discussion.
Under Iowa Code section 670.2, a municipality such as the City is generally liable for its torts. Section 670.4 creates several exceptions to this general rule, listing fifteen categories of claims from which a municipality enjoys immunity. One of these categories includes a claim from which the municipality is immune "by the provision of any other statute." Id. § 670.4(4). One such statute is Iowa Code section 668.10(1), which provides, in relevant part:
In any action brought pursuant to . . . chapter [668, Liability in Tort — Comparative Fault], . . . a municipality shall not be assigned a percentage of fault for any of the following:
1. The failure to place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices. . . .
The district court concluded as a matter of law that section 668.10(1) immunized the City from liability for the allegedly negligent actions that underlie this case. The plaintiffs forward two claims as to why the court erred in this conclusion. They assert such immunity does not apply to the negligent placement or installation of misleading signage, and that the record reveals a disputed issue of material fact as to whether the signage in this case was misleading. Alternatively, the plaintiffs assert that even if such immunity does apply, it was waived when the City procured liability insurance. We first address the insurance question.
A. Insurance Coverage.
Immunities under section 670.4 can be waived by a municipality's procurement of liability insurance. See Iowa Code § 670.7. The plaintiffs contend Flynn's procurement of liability insurance, which named the City as an additional insured, was sufficient to waive all governmental immunity defenses under section 670.4. We cannot agree.
Iowa Code section 670.7 provides that the procurement of liability insurance by a municipality waives governmental immunity under section 670.4, but only "to the extent stated in the policy. . . ." See also City of West Branch, 546 N.W.2d at 603-04. If a tort is not covered by the policy, governmental immunity for that tort is not waived. Fettkether v. City of Readlyn, 595 N.W.2d 807, 813 (Iowa Ct.App. 1999). The insurance policy obtained by Flynn insures the City for any tortious action that is not subject to an immunity defense under section 670.4, while preserving to the City its right to rely on the statutorily created categories of immunity under section 670.4. Thus, by its own terms the insurance policy did not waive the City's section 670.4 immunities.
The policy included the following clauses:
1. NONWAIVER OF GOVERNMENT IMMUNITY. THE INSURANCE CARRIER EXPRESSLY AGREES AND STATES THAT THE PURCHASE OF THIS POLICY AND THE INCLUDING OF THE CITY OF DES MOINES, IOWA AS AN ADDITIONAL INSURED DOES NOT WAIVE ANY OF THE DEFENSES OF GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY OF DES MOINES, IOWA UNDER IOWA CODE SECTION 670.4. . . .
2. CLAIMS COVERAGE. THE INSURANCE CARRIER FURTHER AGREES THAT THIS POLICY OF INSURANCE SHALL COVER ONLY THOSE CLAIMS NOT SUBJECT TO THE DEFENSE OF GOVERNMENT IMMUNITY UNDER THE CODE OF IOWA SECTION 670.4. . . . THOSE CLAIMS NOT SUBJECT TO CODE OF IOWA SECTION 670.4 SHALL BE COVERED BY THE TERMS AND CONDITIONS OF THIS INSURANCE POLICY.
The plaintiffs argue such provisions run afoul of public policy. However, this court has previously acknowledged that "[a]llowing such a policy is in line with our supreme court's dicta in [ City of West Branch v.] Miller recognizing there are claims to which a governmental immunity does not apply for which a city needs to purchase liability insurance." Fettkether, 595 N.W.2d at 814. We find no error in the district court's conclusion that the liability insurance policy procured by Flynn did not waive governmental immunity defenses under section 670.4.
B. Misleading Signage.
Pursuant to section 668.10(1) a municipality is not subject to tort liability for claims that it failed to place or improperly located a sign, or that erected signs were insufficient to warn motorists. McLain v. State, 563 N.W.2d 600, 603 (Iowa 1997). A municipality may, however, be liable in tort for signs that were installed in a negligent manner. Hershberger v. Buena Vista County, 391 N.W.2d 217, 220 (Iowa 1986). To hold a municipality liable it must be shown, at a minimum, that the sign was installed "in such a manner as to mislead or endanger the driver." Saunders ex rel. Saunders v. Dallas County, 420 N.W.2d 468, 472 (Iowa 1988).
There are two additional exceptions not at issue in this case: failure to maintain a sign or device, and "where the exigencies are such that ordinary care would require the State to warn of dangerous conditions by other than inanimate objects." McLain, 563 N.W.2d at 604.
Iowa case law contains only one example of negligent installation. In Hershberger v. Buena Vista County, 391 N.W.2d 217, 220 (Iowa 1986), our supreme court concluded that section 668.10(1) immunity did not apply where a county, departing from the decision of highway authorities, placed a right turn sign on a road that turned left. The supreme court has subsequently clarified that the holding in Hershberger does not apply to "a decision concerning placement of road signs," but was "limited to complaints about the execution of such a plan." Saunders, 420 N.W.2d at 472.
In asserting there is a material dispute as to whether the signage in this case was misleading, the plaintiffs rely on Van Orsdall's deposition testimony that the reflective signage "guided," "directed," "routed," or "ran" him into the median, which could not been seen in the dark. They also rely on affidavits from the occupants of a following car who witnessed the accident. Those affidavits similarly state the signage was misleading, and directed motorists into the median. However, nothing in the summary judgment record — not the pleadings, deposition testimony, affidavits, or even the daytime photo of the accident site — specifically indicates what characteristic or quality of the signage allegedly rendered it misleading. There is no evidence of an arrow or other similar device that affirmatively and incorrectly directed Van Orsdall into the median. Cf. Hershberger, 391 N.W.2d at 220. On the contrary, although Van Orsdall does not recall seeing the white line to his right, it is undisputed that the line directed traffic to reenter the southbound lanes beyond where the median ended.
The plaintiffs do make an allegation in their brief, factually unsupported in the summary judgment record, that the signage directed Van Orsdall into the median because "in the dark, while headlights shown [sic] on them, the reflection signs formed a solid line of reflection from headlights. . . ." When this statement is viewed in conjunction with the record, and the district court's characterization of the plaintiffs' claim that the City's traffic control plan "was a bad plan or an incomplete plan or an ill-conceived plan," it appears the plaintiffs are asserting that the reflective markers and barricades were improperly located, insufficient in number, or of the wrong type. As previously noted, however, municipalities are immunized from such claims. See McLain, 563 N.W.2d at 603.
IV. Conclusion.
Under the undisputed facts of this case, the City enjoyed immunity from liability for the allegedly negligent acts asserted by the plaintiffs. Summary judgment was properly granted. We accordingly affirm the decision of the district court.