Hulsing v. Iowa National Mutual Insurance Co.

329 N.W.2d 5, 1983 Iowa Sup. LEXIS 1372
CourtSupreme Court of Iowa
DecidedJanuary 19, 1983
Docket66337
StatusPublished
Cited by17 cases

This text of 329 N.W.2d 5 (Hulsing v. Iowa National Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hulsing v. Iowa National Mutual Insurance Co., 329 N.W.2d 5, 1983 Iowa Sup. LEXIS 1372 (iowa 1983).

Opinions

LeGRAND, Justice.

Plaintiff started this action to recover damages under an insurance policy issued by defendant company. Defendant denied coverage. After trial to the court, a judgment was entered for plaintiff on the question of coverage but against him on the question of damages. Both parties have appealed. We reverse on plaintiff’s appeal and remand for limited retrial on the question of consequential damages. We dismiss defendant’s cross-appeal.

Plaintiff is a sub-contractor in building commercial grain bins. He uses a crane to facilitate lifting and moving heavy material. On May 23,1975, plaintiff was attempting to lift several large tanks onto a truck. The first tank was moved without incident. While plaintiff was moving the second, however, the crane tipped over, causing the damage for which he now seeks to recover.

The case was tried to the court. After trial, the court first entered judgment for plaintiff on the question of coverage and reserved until later the question of damages. In doing so, the court expressed doubt that plaintiff had proven his damages.

Several weeks later, the court filed “supplemental Findings, Conclusions and Judgment” in which recovery was denied because plaintiff had failed to prove the proper measure of damages.

Plaintiff filed a motion to vacate the judgment on the damage issue and asked for a new trial on that question only. Defendant filed a motion to vacate the judgment relating to coverage and asked for a new trial solely on that matter.

Plaintiff filed notice of appeal before the trial court ruled on either of these post-trial motions. This raises questions of jurisdiction concerning both appeals. We consider them first.

I. Plaintiffs Appeal.

Plaintiff’s motion to vacate the judgment and for a new trial was filed on January 23, 1981. Before any ruling was made, plaintiff filed his notice of appeal. This operated as a waiver of his motion. Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978). It did not, however, affect defendant’s pending motion, and ordinarily plaintiff’s notice of appeal would be premature prior to a ruling on defendant’s motion. Id. at 739. We do not believe Recker is applicable here for reasons stated in Division II. We hold we have jurisdiction of the principal appeal.

[7]*7There is, however, another problem with plaintiff’s appeal which requires some discussion. It is important because it affects the time within which a cross-appeal could be perfected. Five days after plaintiff’s notice of appeal, the trial court, apparently unaware that an appeal had been taken, ruled on plaintiff’s motion to vacate the judgment and for a new trial. When an appeal is perfected, the trial court loses jurisdiction over the merits of the controversy. Recker, 271 N.W.2d 739; In re Marriage of Novak, 220 N.W.2d 592, 597 (Iowa 1974). The trial court may, of course, enforce its judgment during appeal unless a supersedeas bond is filed. Lutz v. Darbyshire, 297 N.W.2d 349, 352 (Iowa 1980); but that is not the situation in the present case. Here the trial court made a new order after the appeal was taken. It could not do so. We disregard plaintiff’s motion to vacate and for a new trial because it was waived by the notice of appeal. We disregard the trial court’s ruling on the motion because it was made after the appeal was taken, when the trial court had lost jurisdiction.

II. Defendant’s Cross-Appeal.

Under Iowa R.App.P. 5(a) defendant could cross-appeal within thirty days from the entry of final judgment or, in any event, within five days from the time plaintiff’s appeal was perfected.

The judgment deciding coverage was filed on January 2, 1981; the judgment on damages was filed on January 15, 1981. Plaintiff’s appeal was perfected on February 13, 1981. Notice of the cross-appeal was filed on March 2,1981. This was more than thirty days after either judgment. It was also more than five days after plaintiff’s notice of appeal was filed. Thus the notice was not timely under either alternative of Rule 5(a), and we have no jurisdiction over the cross-appeal.

Defendant seeks to rely on Loudon v. Hill, 286 N.W.2d 189 (Iowa 1979) as authority for its cross-appeal. Loudon, however, does not help defendant because in the present case defendant waived its motion.

The waiver occurred in this way. The trial court conducted a joint hearing on the two motions to vacate and for a new trial. At the hearing, defendant conceded its motion should be considered only if the trial court granted plaintiff a new trial. The colloquy between court and counsel makes it clear that defendant otherwise agreed its motion was “moot”.

No doubt if the trial court had ruled on defendant’s motion the present procedural tangle would have been avoided. Nevertheless we hold defendant’s representations at the hearing amounted to a waiver of its motion unless the trial court granted plaintiff a new trial. When plaintiff’s notice of appeal was filed, the trial court was without authority to grant him a new trial. This created the very situation under which defendant had agreed his motion would be moot. We consider this to amount to a waiver. Defendant’s failure to file timely notice of cross-appeal requires that we dismiss the cross-appeal.

III. Damages.

The sole question to be resolved on plaintiff’s appeal is the proper measure of damages. Plaintiff tried the case on the theory the crane was a total loss. All the evidence concerning damage was premised on that measure of damage. The trial court found this was not the proper standard, and we agree.

When this case was tried, the proper test for assessing damage was as stated in Aetna Casualty & Surety Co. v. Insurance Department of Iowa, 299 N.W.2d 484 (Iowa 1978). Since then we have made several significant changes in the rule. See Long v. McAllister, 319 N.W.2d 256, 261 (Iowa 1982). The Long opinion was filed more than a year after judgment was entered in the present case. By its terms, the modified rule as adopted in that case does not control here. Id.

We therefore use Aetna to arrive at the proper measure of damages. There we said in pertinent part:

Where the injury to the car can be repaired, so that, when repaired, it will be [8]*8in as good condition as it was before the injury, then the measure of damages is the reasonable cost of repair plus the reasonable value of the use of the car while being repaired, with ordinary diligence, not exceeding the value of the car before the injury.

Aetna Casualty & Surety Co. v. Insurance Department of Iowa, 299 N.W.2d at 485.

Only if the crane could not be repaired under this rule could plaintiff have recovered under his theory of the case.

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Hulsing v. Iowa National Mutual Insurance Co.
329 N.W.2d 5 (Supreme Court of Iowa, 1983)

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Bluebook (online)
329 N.W.2d 5, 1983 Iowa Sup. LEXIS 1372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hulsing-v-iowa-national-mutual-insurance-co-iowa-1983.