Ackerman v. Lauver

• Decision Date: 19 May 1976
• Docket Number: No. 2--57645,2--57645
• Parties: James ACKERMAN d/b/a Iowa Missouri Construction Company, Plaintiff, v. P. M. LAUVER d/b/a Lauver DX Service, Appellee, v. IOWA MUTUAL INSURANCE COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 342

242 N.W.2d 342

James ACKERMAN d/b/a Iowa Missouri Construction Company, Plaintiff, v. P. M. LAUVER d/b/a Lauver DX Service, Appellee, v. IOWA MUTUAL INSURANCE COMPANY, Appellant.

No. 2--57645.

Supreme Court of Iowa.

May 19, 1976.

David E. Green and William G. Polking, Carroll, for appellant.

Bernard L. Willis, Lake City, for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, HARRIS and McCORMICK, JJ.

LeGRAND, Justice.

This matter originated as an insurance claim resulting from a windstorm which occurred on July 14, 1970. From that humble beginning it blossomed into a series of conflicting demands, counterclaims, and cross-petitions. This appeal challenges the judgment obtained by defendant, P. M. Lauver, on his cross-petition against his insurer, Lowa Mutual Insurance Company. We affirm the judgment.

A detailed recitation of facts is necessary before we discuss the issues before us.

The storm did substantial damage to a building owned by Lauver. He filed a claim against Iowa Mutual under his coverage for windstorm damage. His claim was referred to General Adjustment Bureau, Inc., an adjusting service, for investigation and settlement. General negotiated with James E. Ackerman, the plaintiff, who operates a construction business under the name of Iowa Missouri Construction Company, and authorized him to repair Lauver's building for $1,161.08. Lauver had no part in these negotiations nor did he approve Ackerman as the contractor to do the repair work.

After completion of the work undertaken by Ackerman, Lauver claimed all the damage had not been repaired. He alleged, too the work was faulty. Ackerman denied both charges. Iowa Mutual tendered Lauver a draft for $1,161.08 in payment of his damage. For some time Lauver refused to accept the payment or to sign a proof of loss. Eventually, however, he did so. He says this was the result of harassment by Iowa Mutual. Iowa Mutual, on the contrary, denies this and says Lauver accepted the draft voluntarily.

After the draft had been delivered to Lauver, he refused to pay Ackerman. Apparently this resulted from dissatisfaction with Ackerman's work.

Not having received payment, Ackerman started this action against Lauver for the amount of the repair bill. Lauver filed a counterclaim, asserting the work was only partially completed; that the part completed had not been done in a workmanlike manner; and that inferior materials had been used. The counterclaim also alleged Ackerman's conduct had resulted in additional damages to the building and asked both actual and exemplary damages.

Ackerman filed an answer to the counterclaim, denying generally the allegations against him and asserting much of Lauver's damage 'was of his own making.'

Later Ackerman was granted leave to bring Iowa Mutual into the case by way of cross-petition. The cross-petition was in two divisions. Division I asked contribution or indemnity if Lauver should recover on his counterclaim. Division II asked judgment against Iowa Mutual for the amount of the repairs to Lauver's building. Iowa Mutual then filed an answer denying the allegations of the cross-petition and alleging also it had discharged all obligation to pay for the repairs by delivering its draft to Lauver.

That is where the case stood when it went to trial before a jury. At that time he matters in litigation were as follows:

1. The claim of Ackerman against Lauver for repairs in the amount of $1,369.89 (the original repair bill of $1,161.08 plus extras of $208.81).

2. Counterclaim of Lauver against Ackerman for compensatory damages in the amount of $15,000 and exemplary damages in the amount of $30,000.

3. Cross-petition of Ackerman against Iowa Mutual as above set out.

On the second day of trial, Lauver asked permission to amend under Rule 88, Rules of Civil Procedure, by filing a cross-petition to allege Iowa Mutual had assumed all responsibility for making repairs to his building and that it had failed to 'follow through' on this duty. He asked both actual and exemplary damages.

Iowa Mutual strenuously objected to the filing of this amendment, asserting it was not timely and that it injected new issues into the case. In allowing the amendment, the court stated there was no surprise, since all of these matters, even if not asserted directly, were known to Iowa Mutual and were elements in the case from the very start. Iowa Mutual did not ask for a continuance, although it insisted the late amendment deprived it of an opportunity to prepare and defend.

The matter then was tried to a conclusion. Before the case was submitted to the jury, several other significant events occurred. The court directed a verdict in favor of Ackerman against Lauver for the amount of the repairs (except for the additional $208 for extras, which item was submitted to the jury, and upon which Ackerman recovered).

The trial court also directed a verdict in favor of Ackerman on Lauver's counterclaim. Ackerman then dismissed his cross-petition against Iowa Mutual.

At the time the case went to the jury, then, the only issues submitted for determination were Ackerman's remaining claim against Lauver for $208 (which we disregard because it is not an issue on this appeal) and Lauver's claim against Iowa Mutual for the amount of his actual damages. Lauver's claim for exemplary damages was withdrawn from the jury.

The jury returned a verdict in Lauver's favor for $7,500, which under the instructions was reduced by the $1,161.08 already paid, so that Lauver's net recovery was $6,338.92. This was later reduced further by remittitur to $5,000.

The appeal presents these issues:

1. Error in allowing Lauver to amend his cross-petition during trial.

2. Error in refusing to submit mitigation of damages to the jury.

3. Error in overruling Iowa Mutual's motion for directed verdict on Lauver's claim against it.

4. Error in sustaining Ackerman's motion for directed verdict against Lauver.

5. Error in admission of evidence in violation of Statute of Frauds.

I. We first decide the issue raised by Lauver's late amendment. Amendments are the rule and denials the exception. The trial court has considerable discretion in allowing amendments. Rule 88, Rules of Civil Procedure; Atlantic Veneer Corp. v. Sears, 232 N.W.2d 499, 503 (Iowa 1975); Mora v. Savereid, 222 N.W.2d 417, 422 (Iowa 1974).

Amendments may be allowed at any time before the case is finally decided, even after completion of the evidence; but they should not be allowed under Rule 88 after a responsive pleading has been filed, if they substantially change the issues. Atlantic Veneer Corp v. Sears, supra, 232 N.W.2d at 503; Smith v. Village Enterprises, Inc., 208 N.W.2d 35, 37--38 (Iowa 1973).

The amendment belatedly asserted against Iowa Mutual by way of cross-petition the same claim for damages, both actual and exemplary, which Lauver had earlier made in his counterclaim against Ackerman.

In the counterclaim liability was based on Ackerman's negligent performance of the work done and failure to do all that should have been done. In the cross-petition, although not pled with great clarity (about which no complaint is made), liability is bottomed on Iowa Mutual's assumption of responsibility for repairs under its policy. Lauver claims the insurer then failed to 'carry through' on its obligation to see that Ackerman faithfully repaired the storm damage.

The issues of the counterclaim and the cross-petition were identical, as was the relief sought, except in one case recovery was sought against Ackerman, in the other against Iowa Mutual.

Iowa Mutual was already alerted to Lauver's claim because Ackerman was then demanding either contribution or indemnity from it if Lauver should recover on the counterclaim.

Although the amendment amounted, as Iowa Mutual argues, to a new lawsuit, we hold it did not present any substantially different issues then those the company was already prepared to meet to defeat Ackerman's claim for contribution or indemnity.

Iowa Mutual earnestly challenges the trial court's order allowing the late amendment, claiming both surprise and lack of opportunity to defend. But it did not ask a continuance to eliminate these problems. We consider this issue solely as raised--that the ruling was an abuse of discretion under rule 88. No other rule or statute is relied on. In allowing an amendment under Rule 88, the trial court may impose terms as a condition of the allowance.

Failure to request time to prepare for trial of the 'new' issues--a remedy it says it desperately needed--weighs against Iowa Mutual's argument on this appeal. See Smith v. Village Enterprises, Inc., supra, 208 N.W.2d at 38.

We hold the trial court did not abuse its discretion in allowing the late amendment.

II. Iowa Mutual also claims the trial court erred in denying its request for an instruction on mitigation of damages. We believe it will be helpful to relate the circumstances under which this question arose at trial.

Lauver claimed his damages were greatly enhanced by delay in making repairs and by the failure to repair all of the original damage caused by the storm. This, he says, led to further deterioration of his property. From the amount of the verdict, it is obvious the jury agreed with him.

The evidence shows Lauver did nothing to protect his property and took no steps to avoid the additional damage for which he later made claim.

Mitigation of damages was not pled as a special defense. We recently considered a similar matter in Whewell v. Dobson, 227 N.W.2d 115, 120 (Iowa 1975) where we quoted with approval the following passage from Nizzi v. Laverty Sprayers, Inc., 259 Iowa 112, 122, 143 N.W.2d 312, 317--318 (1966):

'Where a plaintiff seeks damages for a wrongful act of defendant, plaintiff has the duty to minimize his damages, but the duty of proving that the damages could be minimized is on defendant * * * (citing authority). These statutes (§§ 619.7 and 619.8, The Code)...