Opinion
No. 1-760 / 00-1075
Filed January 15, 2003
Appeal from the Iowa District Court for Lyon County, Patrick Carr, Judge.
The plaintiff appeals from the district court's grant of the defendant's motion for judgment notwithstanding the verdict and new trial. AFFIRMED.
Ned A. Stockdale of the Fitzgibbons Law Firm, Estherville, for appellant.
Steven P. Wandro and Sandra K. Lyons of Wandro Associates, P.C., Des Moines, for appellee.
Heard by Mahan, P.J., and Miller and Hecht, JJ.
Plaintiff Ronda M. Thielen appeals from adverse rulings on Aetna Casualty Surety Company's motions for judgment notwithstanding the verdict and for new trial. We affirm.
I. Factual and Procedural Background. A reasonable juror could find the following facts from the record. Thielen drove a pilot car on a road construction crew in Lyon County, Iowa, in the course and scope of her employment with W. Hodgman Sons on November 1, 1990. A dump truck operated by another Hodgman employee crashed into the rear of the vehicle driven by Thielen who was subsequently treated at a hospital for dizziness, facial paresthesia, and mid-thoracic pain and released the same day.
Hodgman's principal place of business was in Minnesota. The company notified its workers' compensation carrier, Aetna, of the claim which was assigned to the carrier's Bloomington, Minnesota claim office. Aetna prepared and filed a first report of injury with the Workers' Compensation Division of the Minnesota Department of Labor and Industry on November 7, 1990. The report disclosed Thielen's Iowa residence and reported her injury was sustained while working in Iowa.
During the ensuing twenty-three months, Thielen received chiropractic care on more than forty occasions from three chiropractors in Iowa and Minnesota. On September 9, 1991, Colleen Wussow, Aetna's workers' compensation claim supervisor, reviewed Thielen's claim file at the Bloomington claims office. Wussow questioned whether the claim should be handled in Minnesota and noted that primary jurisdiction for the claim appeared to be in Iowa. Notwithstanding Wussow's concern about jurisdiction, Aetna's Bloomington, Minnesota office continued to handle the claim and paid all medical bills for Thielen's treatment.
Meanwhile, Thielen had moved to Jackson, Minnesota. On October 1, 1992, Thielen's treating chiropractor referred her to Dr. Anderson, a physician who practiced in Edina, Minnesota. Dr. Anderson examined Thielen on October 12, 1992 and reported his preliminary impressions including (1) myofascial syndrome; (2) degenerative disc disease; (3) possible pyriformis syndrome; and (4) chronic strain/sprain of the cervical and lumbar spine secondary to the motor vehicle collision of November 1, 1990. The doctor prescribed pain medication and ordered a CT scan that revealed abnormality of a disc at the L4-5 level of Thielen's spine. On the same day, Thielen spoke to an attorney in Worthington, Minnesota, and was advised that the statute of limitations for workers' compensation claims in that state is three years.
Thielen apparently did not retain the Minnesota lawyer to represent her.
Thielen called Aetna's Bloomington office on October 13, 1992, to report she was off work and to inform the carrier of Dr. Anderson's findings. On October 16, 1992, Aetna converted its file classification from "medical only" to "lost time" signifying that the carrier was aware that Thielen claimed to have lost work time because of her injury. Thielen left a telephone message for James Jester, the Aetna adjuster assigned to the file, on October 19, 1992. Jester, who knew Thielen was not represented by counsel, attempted unsuccessfully to return
Thielen's calls on October 20 and October 21, 1992. When Thielen and Jester finally spoke by telephone for approximately twelve minutes on October 26, 1992, Jester learned that Thielen was unsophisticated with regard to workers' compensation claims and that she was not represented by counsel.
After reviewing Aetna's file and speaking to Thielen on October 26, 1992, Jester concluded Thielen was not eligible for Minnesota workers' compensation benefits and documented Aetna's file with the following notation:
[Thielen] stated she wanted to make a claim for workers' comp. benefits. I advised her she already had done that . . . This incident occurred in Iowa and the [Thielen] told me she lived in Iowa at the time it occurred. In addition, she stated she was hired in Iowa and paid Iowa taxes at the time. . . . I believe this file should be referred to Des Moines for handling. It is apparent to me that this should have been referred there in the first place. The only [Minnesota] connection is that our insured was in Fairmont, [Minnesota]. The [employee] was working in Iowa. Please refer to Des Moines, IA.
In the same file entry, Jester characterized Thielen's claim as "bizarre" and documented his suspicions about (1) Thielen consulting only chiropractors since November 1, 1990; (2) Thielen having ulterior motives for making the claim for weekly benefits almost two years after the injury; (3) the findings of Dr. Anderson, whom Jester described as "our infamous Chiro-MD here in Mpls;" and (4) what he believed were inconsistencies in the location of Thielen's physical complaints.
Aetna adjuster Lynn Pelisek testified that if the file had been handled by Aetna in Iowa, the company would not have authorized Thielen to resume chiropractic care after she was released from treatment by a chiropractor in the summer of 1991. In her file progress note of December 14, 1992, Pelisek noted she could not explain why Aetna's Minnesota claims office continued to pay Thielen's chiropractic expenses "with no questions" through October of 1992.
Jester's file note of October 26, 1992 suggested that "[t]he original chiro reports indicate cervical problems, not low back, and I advised [Thielen] of this. She said it's always been her whole back, but I question this based on the reports." Jester's assessment of the records was obviously inaccurate. Dr. Kragt, the first chiropractor to treat Thielen after the crash, included "subluxation complex of the 5th lumbar vertebra" and "lumbar strain" in his diagnosis. Chiropractors Ebbers and Lewis subsequently recorded in their treatment records Thielen's complaints of low back pain before she was referred to Dr. Anderson. It is uncontroverted that Jester did not reveal his suspicions about Aetna's liability to Thielen before November 2, 1992.
Jester also spoke to Aetna's Des Moines office workers' compensation supervisor, Ron Muller, on October 26, 1992. Muller informed Jester that the Iowa statute of limitations "was close." Jester then caused Aetna's claim file to be sent by ordinary mail from Bloomington to Des Moines.
Thielen called Aetna's Des Moines office on November 2, 1992 and was informed her file had not yet arrived. She called again on November 3, 1993, and gave a recorded statement to Aetna adjuster Lynn Pelisek. Consistent with instructions received from Muller, the claim supervisor, Pelisek drafted a letter on November 5, 1992, rejecting the claim on the ground that Thielen's physical complaints were not a direct result of the November 1, 1990, injury.
Thielen filed a petition with the Iowa Industrial Commissioner on November 19, 1992. The agency granted Aetna's motion for summary judgment on February 8, 1993, because Thielen's petition was not filed within two years after her injury. Thielen next filed a petition for judicial review of the final agency action in Lyon County district court. However, this petition was ultimately dismissed upon Aetna's motion because venue was not proper in Lyon County and the district court lacked jurisdiction to transfer the action to a location where venue was proper. Anderson v. W. Hodgman Sons, Inc., 524 N.W.2d 418, 421-22 (Iowa 1994).
Now known as the Iowa Workers' Compensation Commissioner.
Thielen did not contend before the agency that Aetna was estopped to assert the Iowa statute of limitations.
Thielen was known as Ronda Anderson when she filed her Iowa workers' compensation action.
Thielen commenced this tort action in Lyon County district court alleging Aetna breached its covenant of good faith and fair dealing and thereby destroyed her workers' compensation claim. In particular, Thielen asserted Aetna breached its duty by (1) denying the claim without a reasonable basis, (2) failing to timely transfer the file from Minnesota to Iowa for appropriate processing, (3) transferring the file to Iowa at a time and in a manner likely to result in the expiration of the statute of limitations before a coverage decision could be made, (4) failing to disclose to Thielen that the Iowa statute of limitations (two years) would apply rather than the Minnesota statute of limitations (three years), (5) failing to promptly pay disability benefits after receiving notice that Thielen was off work, (6) withholding Iowa weekly compensation benefits after receiving notice that Thielen was off work so as to avoid extending the Iowa statute of limitations from two to three years, (7) failing to properly investigate and evaluate the medical facts, and (8) unreasonably delaying and withholding its coverage decision from Thielen until after the statute of limitations expired. In addition to her claim for actual damages, Thielen alleged she was entitled to punitive damages because Aetna's breach of the duty of good faith was intentional, willful and in wanton disregard for her rights. Aetna denied the allegations of bad faith, and the case proceeded to trial.
In its motions for directed verdict, Aetna contended the case should be dismissed because it had no duty (1) to deny Thielen's claim before it expired on November 3, 1992, or (2) to disclose to Thielen her claim would expire if not filed with the Iowa Workers' Compensation Commissioner within two years after the date of the injury. The district court overruled Aetna's motions for directed verdict and submitted the bad faith claim to the jury.
The marshalling instruction for the bad faith claim read in pertinent part as follows:
In order for the plaintiff to recover on her claim of bad faith, she must prove all of the following propositions.
1. Aetna engaged in a course of conduct which caused the plaintiff not to file her case until after November 2, 1992.
2. Aetna's course of conduct was knowing and was intended to cause the plaintiff not to file her case until after November 2, 1992.
3. Aetna's course of conduct proximately caused damage to the plaintiff.
4. The amount of damage.
A jury verdict awarded Thielen actual damages of $438,700 and punitive damages of $875,000. The district court subsequently granted Aetna's motion for judgment notwithstanding the verdict and conditionally granted the carrier's motion for new trial. The court offered this explanation of the ruling:
Up to now, all of the appellate decisions in our state considering bad faith torts in the worker's compensation context have involved a bad faith failure to pay benefits. In this case, the Court found that there was no bad faith failure to pay. The harm of which Thielen complains is the running of the statute of limitations while her claim was under consideration . . . At trial it was very apparent that Aetna's conduct in considering her claim did not cause her damage. Neither our Supreme Court nor any reported decision either brought to the Court's attention by counsel or located by the Court itself has supported a bad faith tort claim as alleged by Thielen. By the conclusion of the evidence it was clear that the marshaling instruction found in Iowa Uniform Instruction No. 1410.1 was not applicable. By the time Aetna denied Thielen's claim on November 5, 1992, the statute of limitations had run on her claim. Thus, although Thielen sought to prove and Aetna sought to disprove whether Aetna had a reasonable basis for its November 5, 1992 denial letter, this evidence seemed irrelevant to the Court, as the claim had already expired. . . Thielen's real complaint at trial was that Aetna committed bad faith by failing to disclose to her the approaching statute of limitations, to her detriment. . . . The threshold question here is whether Theilen's claim is one which should be recognized in Iowa. Up to now no such similar claim has been sanctioned, or, as best appears, asserted. After studying Boylan, it does not appear to this Court that such a claim will be recognized . . . The Iowa Supreme Court has specifically held that an insurer has no duty to warn its insured about the running of the statute of limitations. Morgan v. American Standard Insurance Co., 534 N.W.2d 92, 100 (Iowa 1995). An insurer is entitled to a reasonable period of time to investigate a claim. Sampson v. American Family Mutual Ins. Co., 582 N.W.2d 146 (Iowa 1998).
On appeal, Thielen contends the district court erred in sustaining the post-trial motions. She challenges the district court's conclusion that Aetna's course of conduct prior to the expiration of the statute of limitations did not, as a matter of law, constitute bad faith. In particular, Thielen asserts she presented substantial evidence tending to prove Aetna (1) intentionally engaged in a course of conduct to cause her to fail to file her claim in Iowa before the statute of limitations expired; (2) intended to mislead her to believe Minnesota law applied to the claim; (3) intentionally breached its duty to provide workers' compensation benefits under Iowa law; (4) breached its duty to provide suitable medical services and treatment; (5) breached its duty under Iowa Code sections 507B.4(9)(b), (e), and (n) to act on and communicate its coverage decisions in a timely manner; (6) misrepresented the factual basis for its denial of the claim. Aetna asserts it had no duty to disclose to Thielen the Iowa statute of limitations or to transfer its file to Iowa for adjustment. Aetna also asserts Thielen failed to generate a jury question on the proximate cause issue because the statute of limitations expired before the claim was denied on November 5, 1992.
Aetna's November 5, 1992 letter said "it does not appear that [Thielen's] current problems are directly related to [the] injury of 11/1/90." However, Thielen notes the statute of limitations defense was the one actually asserted in Aetna's motion for summary judgment filed before the agency.
II. Scope and Standards of Review. We review a district court ruling on a motion for judgment notwithstanding the verdict for correction of errors at law. Iowa R.App.P. 6.4; Midwest Home Distrib., Inc. v. Domco Indus. Ltd., 585 N.W.2d 735, 738 (Iowa 1998). We inquire whether substantial evidence supports each element of the plaintiff's claim. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001). In making our determination, we view the evidence in the light most favorable to the nonmoving party. Midwest, 585 N.W.2d at 738.
"Our policy is to liberally construe workers' compensation statutes in favor of the employee." Myers v. F.C.A. Services, Inc., 592 N.W.2d 354, 356 (Iowa 1999); Stumpff v. Second Injury Fund, 543 N.W.2d 904, 905 (Iowa 1996).
III. Discussion.
Our supreme court has recognized bad faith claims against insurance companies in various contexts. In Kooyman v. Farm Bureau Mut. Ins. Co, 315 N.W.2d 30 (Iowa 1982), the plaintiffs contended Farm Bureau breached its duty of good faith in conducting the defense of its insured against a personal injury claim brought by a third party. The court held it was error to direct a verdict in favor of Farm Bureau because the jury could have found the insurer showed indifference in its investigation and preparation of its insured's defense. Kooyman, 315 N.W.2d at 37. The court made it clear that a plaintiff asserting a bad faith claim against his liability insurance carrier need not prove fraud:
. . . [G]ood faith or bad faith in this context does not connote the absence or presence of positive misconduct of a malicious, illegal, or immoral nature such as would be required for punitive damages; rather, it refers to a breach of the implied covenant of good faith.Id. In its discussion of the definition of bad faith, the court looked to the Restatement (Second) of Contracts section 205, comment a (1981):
The phrase `good faith' is used in a variety of contexts, and its meaning varies somewhat with the context. Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized [in other contexts] as involving `bad faith' because they violate community standards of decency, fairness or reasonableness.
In the broadest sense, the concept of bad faith "refers simply to the absence of good faith required by the implied contract." Kooyman, 315 N.W.2d at 34. Evidence of negligence tending to prove a liability insurer was guilty of indifference to or disregard of the interests of its insured in the performance of its fiduciary duty is admissible to prove bad faith. Moreover, the covenant of good faith within a liability insurance policy includes the notion that neither party to the contract "will do anything to injure the rights of the other in receiving the benefits of the agreement." Id. at 33.
In Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988), the plaintiff settled his personal injury claim against a tortfeasor for the limits ($25,000) of the applicable liability insurance policy. He then made a demand upon his insurer, Aid Insurance Company (Allied), for payment of his underinsurance coverage limit of $40,000. Allied reviewed evidence of Dolan's pre-existing back problems and offered to pay $20,000 to settle the underinsurance claim. After a jury found the total damages exceeded $65,000, Dolan sued Allied for bad faith in failing to settle the claim within its policy's limits. Allied moved for summary judgment, contending (1) a claim for first-party bad faith had not yet been recognized in Iowa, and (2) even if such a claim were cognizable, Dolan had not generated a fact question in support of it. Our supreme court granted an interlocutory appeal to review the district court's denial of Allied's motion for summary judgment. Dolan, 431 N.W.2d at 791. In its discussion of whether the relationship between an insured and his insurer justified recognition of a cause of action for bad faith, the court noted:
We think [recognition of the first-party cause of action] is also justified by the nature of the contractual relationship between the insurer and insured. Although we do not believe the relationship involves the same fiduciary duties as in the third-party situations, we have frequently noted that insurance policies are contracts of adhesion. (citations omitted). This is due to the inherently unequal bargaining power between the insurer and insured, which persists throughout the parties' relationship and becomes particularly acute when the insured sustains a physical injury or economic loss for which coverage is sought.
Id. at 794 (citations omitted). The Dolan court concluded the relationship between an insured and his own insurance carrier justified recognition of the first-party bad faith tort in order "to provide the insured an adequate remedy for an insurer's wrongful conduct." Id. at 794. In such cases, it is the plaintiff's burden "[t]o show . . .the absence of a reasonable basis for denying benefits of the policy and defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim." Id. (quoting Anderson v. Continental Ins. Co., 271 N.W.2d 368, 376 (Wis. 1978)). In applying this objective standard, it is appropriate to "determine whether a claim was properly investigated and whether the results of the investigation were subjected to a reasonable evaluation and review." Id.
Although the court recognized first-party bad faith claims, it concluded Allied was entitled to summary judgment because a fairly debatable issue was presented regarding whether Dolan failed as a matter of law to show the absence of a reasonable basis for Allied's actions.
In Boylan v. American Motorists Ins. Co., 489 N.W.2d 742 (Iowa 1992), a plaintiff sued his employer's workers' compensation carrier alleging bad faith termination of his weekly benefits and medical benefits. The carrier filed a motion to dismiss the action, contending the relationship between an injured employee and an employer's workers' compensation carrier was akin to the relationship between a tort victim and the tortfeasor's liability insurer. See Long v. McAllister, 319 N.W.2d 256, 262 (Iowa 1982) (holding no bad faith cause of action lies in favor of tort victim against the tortfeasor's liability insurance carrier because "the insurer has a fiduciary duty to the insured but an adversary relationship with the victim"). On appeal from the district court's ruling granting the motion, our supreme court concluded the relationship between an injured employee and his employer's workers' compensation carrier is more similar to the first-party relationship presented in Dolan than to the one between a tort victim and the tortfeasor's liability insurance carrier discussed in Long. Boylan, 489 N.W.2d at 743. Moreover, the court reasoned that a workers' compensation carrier owes affirmative duties to act reasonably in making timely payments of weekly benefits and furnishing prompt medical treatment to claimants even in the absence of specific direction from the commissioner. Id. Thus, the court concluded "recognition of tort liability on the part of workers' compensation insurance carriers guilty of the type of bad-faith conduct for which tort liability was recognized in Dolan is a logical extension of that decision." Id. at 744.
See Iowa Code § 86.13 (1991).
See Iowa Code § 85.27 (1991).
We must resolve the question of whether the evidence in this case generated a jury question on Thielen's bad faith claim. Thielen contends she presented substantial evidence of bad faith by proving Aetna continued to process the claim in Minnesota even after its claim adjuster recognized in September of 1991 that Iowa's Industrial Commissioner had jurisdiction over a claim brought by an Iowa resident for injuries sustained in Iowa. Thielen cites and we have found no authority for the proposition that an insurer's duty of good faith requires it to process Iowa claims within Iowa. Accordingly, we conclude the district court correctly concluded Thielen did not generate a jury question on the bad faith theory by proving that Aetna handled the Iowa claim in Minnesota until October 26, 1992.
We acknowledge Thielen's contention that Aetna's processing of the Iowa claim from the Minnesota claim office was a substantial factor in causing the statute of limitations to expire before the workers' compensation action was filed in Iowa. Her contention is based, in part, upon the following propositions: (1) Aetna's Iowa claim adjuster, Pelisek, opined that Thielen's ongoing chiropractic treatment probably would not have been authorized if the claim had been adjusted from the Aetna's Iowa claim office; and (2) if Aetna had refused prior to November 2, 1992, to authorize the ongoing chiropractic care, Thielen would have consulted counsel and filed her claim in Iowa before the statute of limitations expired. Even if we assume the truth of these propositions, however, we find no authority for Thielen's claim that the duty of good faith required Aetna to adjust the claim in Iowa.
Thielen next claims she generated a jury question on the bad faith issue by proving that Aetna failed to inform her that the claim would be barred if not commenced in Iowa by filing a petition with the Commissioner within two years after the date of her injury. Our supreme court has held that "[a]n insurer does not have a duty to warn its policyholders that the time period for filing suit against it is running out." Morgan v. American Family Mutual Insurance Company, 534 N.W.2d 92, 100 (Iowa 1995). Given the fact that an insurer has no duty under Iowa law to inform its own insured of the statute of limitations, we are unable to conclude the district court erred when it concluded Aetna owed no such duty to Thielen.
Thielen further contends she generated a jury question on bad faith by proving that Aetna failed to properly investigate her claim. The nature and extent of an insurance carrier's duty to investigate depends upon the context. In the third-party context, an insurer's failure to adequately investigate a case may support a finding of bad faith. Kooyman v. Farm Bureau Mut. Ins. Co., 315 N.W.2d 30, 35 (Iowa 1982) ("Under some circumstances an insurer's failure to investigate properly may alone establish bad faith; however, we consider this evidence along with all the other in determining whether a jury issue of bad faith was presented.") (citations omitted). Similarly, in the context of a first-party action brought by the insured against his insurer, our supreme court has observed:
it is appropriate, in applying the test, to determine whether a claim was properly investigated and whether the results of the investigation were subjected to a reasonable evaluation and review.Morgan v. American Family Mut. Ins. Co., 534 N.W.2d 92, 98 (Iowa 1995) (quoting Anderson v. Continental Ins. Co., 271 N.W.2d 368, 377 (Wis. 1978). In the first-party claim context, the insurer's duty of investigation is less clearly defined than in third-party claims. Id. An insurer may require its insured to present adequate proof of loss before paying a first-party claim. Id.
A workers' compensation insurer also has a continuing duty to investigate claims made by injured workers. Pickering v. Squealer Feeds, 530 N.W.2d 678, 683 (Iowa 1995). It is undisputed, however, that Aetna paid all medical bills submitted to it by Thielen or her medical care providers through October 12, 1992. On that date, Thielen first notified Aetna that she claimed to have missed work because of the November 1990 motor vehicle collision. Aetna was entitled to a reasonable time to investigate the claim for temporary disability benefits. Christensen v. Snap-On Tools Corp., 555 N.W.2d 254, 260 (Iowa 1996) (holding that an employer is not liable for a penalty under Iowa Code section 86.13 if it delays payment of benefits for a reasonable period of time while investigating a claim). In Christensen, the court concluded the employer's delay of two months in paying benefits during an investigation of a claim was reasonable. Id. Although Aetna knew in November of 1990 that Thielen was injured in a work-related accident, it had no reason to know until more than twenty-three months later that she claimed to have lost work. When Aetna learned of Thielen's claim for temporary disability benefits, less than thirty days remained before the statute of limitations expired. Under the standard established in Christensen, Aetna had no duty to complete its investigation of Thielen's claim for weekly benefits and pay or deny the claim on or before November 2, 1992. Thus, the district court correctly concluded Thielen failed to generate a jury question on Aetna's bad faith failure to timely investigate the claim.
Thielen next contends she presented substantial evidence tending to prove that Aetna failed in bad faith to advise her on or before October 26, 1992 of its decision to contest her claim on medical causation grounds. She asserts Iowa Code section 507B.4(9) imposed upon Aetna a duty to investigate, evaluate, and
inform her of its decision to dispute the claim within a reasonable time. Even if we assume without deciding that the statute might under certain circumstances create a private cause of action for bad faith against a workers' compensation insurer who fails to timely investigate a claim or to timely notify its insured of a decision to deny a claim, we would conclude that the district court correctly declined to instruct the jury as to the existence of such a duty in this case. There is no evidence in this record that Aetna failed to investigate claims or timely deny claims with such frequency as to constitute a general business practice.
This code section provides in relevant part:
The following are hereby defined as unfair methods of competition and unfair or deceptive acts or practices in the business of insurance: B? 9. Unfair claim settlement practices. Committing or performing with such frequency as to indicate a general business practice any of the following:
c. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies.
d. Refusing to pay claims without conducting a reasonable investigation based upon all available information.
e. Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed.
n. Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.
(emphasis supplied).
Thielen further contends the district court properly instructed the jury that Aetna could be held liable for an intentional course of conduct calculated to cause Thielen to file her workers' compensation proceeding after November 2, 1992. We have concluded that, when viewed separately, none of Aetna's acts or omissions constituted substantial evidence of a breach of its duty of good faith. Likewise, when viewed cumulatively as a course of conduct, Aetna's acts or omissions did not as a matter of existing law generate a jury question on the issue of bad faith. Thielen failed to present substantial evidence tending to prove that her claim was wrongfully denied. Thus the district court correctly granted judgment notwithstanding the verdict.
For the text of the marshalling instruction see note six above.
In order for the plaintiff to recover on her claim of bad faith, she must prove all of the following propositions:
1. Aetna engaged in a course of conduct, which caused the plaintiff not to file her case until after November 2, 1992.
2. Aetna's course of conduct was knowing and was intended to cause the plaintiff not to file her case until after November 2, 1992.
3. Aetna's course of conduct proximately caused damage to the Plaintiff.
4. The amount of damage.
Thielen posits this instruction accurately stated the law because the tort of bad faith is an intentional tort, and because intentional torts have been recognized in Iowa for more than 100 years.
Aetna notes Iowa Uniform Civil Jury Instruction 1410.1 requires proof of either the insurer's denial of a claim or a refusal to defend an insured without a reasonable basis. By the time Aetna denied Thielen's claim, the two-year limitation period had expired.
IV. Conclusion. We have carefully reviewed all issues and arguments raised by Thielen. Those which are not specifically addressed in our opinion were found to be without merit. The district court correctly granted the motion for judgment notwithstanding the verdict. Accordingly, we affirm.