IN THE COURT OF APPEALS OF IOWA

No. 18-0574

Filed April 17, 2019

CRAIG NABER,

Plaintiff-Appellee,

vs.

JERALD "JERRY" NABER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Buchanan County, Joel Dalrymple, 

Judge.

Jerald Naber appeals the district court’s denial of his motion for new trial in 

this negligence action. Craig Naber cross-appeals, seeking interest on the jury 

award to begin on the date of the negligent conduct. AFFIRMED ON APPEAL; 

AFFIRMED AS MODIFIED ON CROSS-APPEAL. 

David L. Riley of Swisher & Cohrt, P.L.C., Waterloo, for appellant.

Bradley M. Arnold of Kolb Clare & Arnold, P.C., Buffalo Grove, Illinois, for 

appellee.

Considered by Vogel, C.J., and Doyle and Mullins, JJ.
2

MULLINS, Judge.

Jerald (Jerry) Naber appeals the district court’s denial of his motion for new 

trial following a jury verdict finding him negligent for destruction of a tractor and 

attachment owned by his brother, Craig Naber. On appeal, Jerry seeks a new trial 

on the basis of (1) testimonial references to an insurance company, (2) the court’s 

classification of certain witnesses as experts, (3) witness testimony regarding the 

reasonableness of Jerry’s conduct, (4) the court’s refusal to permit certain 

testimony, and (5) the theories of negligence presented to the jury. Craig crossappeals, arguing interest in the judgment should accrue from the date of loss rather 

than the date the action commenced.

I. Background Facts and Proceedings

The events giving rise to this cause of action occurred on October 19, 2015. 

The weather that day was dry and windy; there was both a burn ban and red-flag 

warning1in effect. Jerry and Craig both work as farmers. Craig rents farmland 

from his mother, and Jerry sometimes stores grain in a grain bin on the land Craig 

 

1 A red-flag warning is:

A term used by fire-weather forecasters to call attention to limited weather 

conditions of particular importance that may result in extreme burning 

conditions. It is issued when it is an on-going event or the fire-weather 

forecaster has a high degree of confidence that Red Flag criteria will occur 

within 24 hours of issuance. Red Flag criteria occurs whenever a 

geographical area has been in a dry spell for a week or two, or for a shorter 

period, if before spring green-up or after fall color, and the National Fire 

Danger Rating System (NFDRS) is high to extreme and the following 

forecast weather parameters are forecasted to be met:

1) a sustained wind average 15 mph or greater

2) relative humidity less than or equal to 25 percent, and

3) a temperature of greater than 75 degrees F.

Red Flag Warning, National Oceanic and Atmospheric Administration’s National Weather 

Service, https://w1.weather.gov/glossary/index.php?word=red+flag+warning (last visited 

Apr. 2, 2019).
3

rents. Both men tended to their respective farming duties on October 19. Craig 

and his farmhand, Leslie Stacy, performed maintenance on a combine. As they 

worked, Jerry arrived to clean out and use the grain bin. Earlier, Craig combined 

some of his corn crop immediately adjacent to the bin so Jerry could access it. 

Jerry’s son arrived to help him. As the two worked, Jerry’s pickup truck was parked 

over the dry combined corn stalks, which stood roughly one-and-a-half feet tall. 

The corn stalks ignited, starting a field fire, and Jerry quickly alerted Craig and 

Stacy to the fire while his son called 911.

Craig used a tractor and chisel-plow attachment to create a dirt berm along 

the fire to prevent it from spreading. During this process, the fire reached the 

tractor multiple times. At one point, Craig noticed his front, right tire was on fire. 

Around this time, he saw someone, who he believed to be a firefighter, nearby and 

requested assistance. The individual did not try to put out the fire and instead 

drove away. Eventually, the field fire was extinguished, but Craig’s tractor was 

destroyed and his chisel plow attachment was damaged. 

In November 2016, Craig brought this negligence action against Jerry. 

Following a three-day trial in January 2018, a jury found Jerry negligent and 

awarded Craig $198,100 in damages. Jerry moved for a new trial, which the district 

court denied. Craig petitioned for costs associated with the proceedings and 

moved to amend the judgment to accrue interest from the date of the fire rather 

than the date the action commenced. The district court ordered the judgment to 

include costs but denied the motion to amend the judgment. Jerry appeals and 

Craig cross-appeals. Additional facts will be set forth below as are relevant to the 

issues raised on appeal.
4

II. Standards of Review

Our standard of review when reviewing a denial of a “motion for new trial 

depends on the grounds raised in the motion.” Winger v. CM Holdings, L.L.C., 881 

N.W.2d 433, 445 (Iowa 2016) (quoting Clinton Physical Therapy Servs., P.C. v. 

John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006)). Because 

evidentiary rulings are reviewed for an abuse of discretion, we review Jerry’s 

claims the district court’s admission of certain evidence warrants a new trial for an 

abuse of discretion. See Mohammed v. Otoadese, 738 N.W.2d 628, 631 (Iowa 

2007) (noting evidentiary rulings are reviewed for an abuse of discretion); Clinton 

Physical Therapy Servs., P.C., 714 N.W.2d at 609 (“If the motion for a new trial 

was based on a discretionary ground, we review it for an abuse of discretion.” 

(internal quotation marks and citation omitted)). “A court abuses its discretion 

when its ruling is based on grounds that are unreasonable or untenable.” In re 

Trust No. T–1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013). The “grounds for a 

ruling are unreasonable or untenable when they are based on an erroneous 

application of the law.” Id. A new trial is not warranted “unless a different result 

would have been probable in the absence of misconduct.” Loehr v. Mettille, 806 

N.W.2d 270, 277 (Iowa 2011).

We review alleged errors in jury instructions for legal error. See Rivera v. 

Woodward Res. Ctr., 865 N.W.2d 887, 891 (Iowa 2015). An error in jury 

instructions does not require reversal unless it resulted in prejudice. See id. at 

892. Prejudice occurs when the jury is misled or if the instructions materially 

misstate the law. See id. 
5

The award and calculation of prejudgment interest is reviewed for errors at 

law. See Gosch v. Juelfs, 701 N.W.2d 90, 91 (Iowa 2005). When substantial 

evidence “support[s] the trial court’s decision, we are bound by its fact-finding,” but 

“[w]e are not bound . . . by the trial court’s application of legal principles.” Id. We 

strictly construe “Iowa statutes providing for recovery of costs.” Hughes v. 

Burlington N. R.R. Co., 545 N.W.2d 318, 321 (Iowa 1996).

III. Analysis 

A. Insurance References 

In his first claim of error, Jerry argues references made to insurance 

throughout the proceedings necessitate a new trial. The district court sustained 

Jerry’s motion in limine prohibiting references to liability insurance stating, “The 

parties should be precluded from making any reference or discussions in the 

presence of the jury of any sort relevant to insurance coverage.” Additionally, Iowa 

Rule of Evidence 5.411 prohibits “[e]vidence that a person was or was not insured 

against liability . . . to prove whether the person acted negligently or otherwise 

wrongfully.” Evidence of insurance coverage is prohibited because: (1) “the 

evidence is ordinarily irrelevant to any issue in the case,” (2) “it tends to influence 

jurors to bring in a verdict against a defendant on insufficient evidence,” and (3) “it 

causes jurors to bring in a larger verdict than they would if they believed the 

defendant would be required to pay it.” Laguna v. Prouty, 300 N.W.2d 98, 101 

(Iowa 1981).

Craig’s counsel purportedly inquired into the jury’s experience with 

insurance claims during voir dire. Because the parties elected to not have jury 

selection reported, we have no record of the claimed improper questions. Further, 
6

there is no record of timely objections by Jerry.2 Consequently, error was not 

preserved on any claimed violation during voir dire. See In re F.W.S., 689 N.W.2d 

134, 135 (Iowa 2005) (“It is the appellant’s duty to provide a record on appeal 

affirmatively disclosing the alleged error relied upon. The court may not speculate 

as to what took place or predicate error on such speculation.”); see also Meier v. 

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (requiring an issue be “both raised 

and decided by the district court before we will decide them on appeal”).

3

Subsequent references to insurance relate to comments made by an expert 

witness, Steven Hamers. When describing who seeks out his services as an 

expert witness, Hamers noted he is sometimes retained by insurance carriers. He 

then identified materials he reviewed during his trial preparation that discussed 

ways to avoid field fires as produced by Grinnell Mutual Insurance. Hamers 

explained Grinnell Mutual insures farm equipment and insures many farmers in 

Iowa. On cross-examination, defense counsel inquired if Hamers considered the 

information from Grinnell Mutual to come from an authoritative source but did not 

reference Grinnell Mutual by name. Hamers confirmed counsel intended to 

reference the Grinnell Mutual material by referring to it by name.4 Although 

 

2 There is no indication Jerry sought to create a record under Iowa Rule of Appellate 

Procedure 6.806.

3 Assuming Craig’s counsel made such inquiries and Jerry preserved error by objecting, 

the inquiries do not warrant a new trial because they did not serve as evidence for the 

jury’s consideration. See Salami v. Von Maur, No. 14-1603, 2016 WL 530253, at *4–5 

(Iowa Ct. App. Feb. 10, 2016) (concluding references to insurance during voir dire did not 

violate rule 5.411 because voir dire is not evidence for the jury’s consideration).

4 The following exchange occurred between counsel and Hamers:

Q: Exhibit 11 is something from a website? A: That was Grinnell 

Mutual, an Iowa insurance carrier.

Q: And the question is, is Exhibit 11 something from a website. 

That’s the question. A: Yes, from Grinnell Mutual’s website. 
7

Grinnell Mutual served as Jerry’s insurance provider, no one at trial indicated 

Grinnell Mutual insured Jerry or indicated Jerry carried liability insurance generally. 

Simply put, no evidence regarding liability insurance was ever introduced or 

alluded to during trial. Neither rule 5.411 nor the ruling on the motion in limine 

were violated. The district court did not err in denying the motion for new trial 

based on references made to insurance during trial.

B. Qualification of Witnesses as Experts 

Next, Jerry claims the court erred in allowing two farmhands to testify as 

experts. Farmhands Rex Yearous and Leslie Stacy testified to standard farming 

practices used to avoid field fires and the dangers of driving a pickup truck into a 

dry field. Iowa Rule of Evidence 5.702 permits “[a] witness who is qualified as an 

expert by knowledge, skill, experience, training, or education [to] testify in the form 

of an opinion or otherwise if the expert’s scientific, technical, or other specialized 

knowledge will help the [jury] to understand the evidence or to determine a fact in 

issue.” Iowa courts “have been committed to a liberal view on the admissibility of 

expert testimony.” Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). 

However, the proponent of the testimony must demonstrate (1) “the testimony ‘will 

assist the trier of fact’ in understanding ‘the evidence or to determine a fact in 

issue’” and (2) “the witness is qualified to testify ‘as an expert by knowledge, skill, 

experience, training, or education.’” See id. at 685–86.

Jerry contends Yearous and Stacy were not qualified to testify as experts, 

citing their lack of education or specialized training. Yearous has roughly twentyfive years of farming experience. He received on-the-job training and has read 

various publications to help educate himself on farm-safety issues. Stacy began 
8

operating farm equipment at the age of ten through his mid-twenties. He then 

worked as a firefighter in various capacities for roughly three and a half years. 

Stacy, forty-five at the time of trial, now works for Craig on the farm. Because both 

men have extensive farming experience, their lack of formal education or formal

training regarding standard farming practices is of no consequence. See Leaf v. 

Goodyear Tire & Rubber Co., 590 N.W.2d 525, 535 (Iowa 1999) (“[N]o particular 

education is required; experience is sufficient to qualify a witness as an expert.”). 

“Moreover, an expert does not need to be a specialist in the area of the testimony 

as long as the testimony is within the general area of expertise of the witness.” 

Ranes, 778 N.W.2d at 687. Given our liberal view on the admissibility of expert 

testimony, we conclude Yearous and Stacy qualified as experts and the district 

court did not abuse its discretion in denying the motion for new trial on this ground. 

See id. at 685.5

C. Substance of Expert Testimony 

In addition to challenging Yearous and Stacy’s qualification as experts, 

Jerry also challenges the admissibility of their testimony and Hamers’s testimony 

regarding whether each believed Jerry’s conduct of driving a pickup truck in the 

field was reasonable or reasonably safe. He argues such testimony impermissibly 

commented on the legal standard at issue. See Haskenhoff v. Homeland Energy 

Sols., LLC, 897 N.W.2d 553, 601 (Iowa 2017) (“[E]xpert testimony as to a legal 

 

5 To the extent Jerry argues the district court abused its discretion in failing to exercise 

discretion when determining whether Stacy qualified as an expert by stating “ultimately it’s 

up for the jury to determine whether he’s an expert or not under Iowa law,” the issue is not 

preserved for appellate review. Jerry never made this argument to the district court during 

trial and did not raise the claim in his motion for new trial. See Meier, 641 N.W.2d at 537 

(“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised 

and decided by the district court before we will decide them on appeal.”).
9

conclusion is inadmissible in an ordinary negligence case.”); In re Palmer, 691 

N.W.2d 413, 419 (Iowa 2005) (“A witness cannot opine on a legal conclusion or 

whether the facts of the case meet a given legal standard.”), overruled on other 

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016);

Grismore v. Consol. Prods. Co., 5 N.W.2d 646, 663 (Iowa 1942) (“When a 

standard, or a measure, or a capacity has been fixed by law, no witness whether 

expert or non-expert, nor however qualified, is permitted to express an opinion as 

to whether or not the person or the conduct, in question, measures up to that 

standard. On that question the court must instruct the jury as to the law, and the 

jury must draw its own conclusion from the evidence.”). However, “[a]n opinion is 

not objectionable just because it embraces an ultimate issue.” Iowa R. Evid. 5.704. 

Here Craig was required to prove Jerry’s negligence caused the damage to 

his property. Specifically, to find Jerry liable, the jury was required to find the 

following elements satisfied:

(1) [Jerry] was negligent in one or more of the following ways:

(a) He parked his truck such that it was in direct contact 

or very close to dry vegetation that could catch fire,

(b) He failed to keep his truck away from dry 

vegetation, or

(c) He failed to make sure that the area where he drove 

and parked his truck was safe for that activity.

(2) The negligence was the cause of the damage to [Craig].

(3) The amount of damage.

The jury instructions defined negligence as follows:

“Negligence” means failure to use ordinary care. Ordinary 

care is the care which a reasonably careful person would use under 

similar circumstances. “Negligence” is doing something a 

reasonably careful person would not do under similar circumstances, 

or failing to do something a reasonably careful person would do 

under similar circumstances.
10

Jerry cites the following dialogue between Craig’s counsel and Yearous, Stacy, 

and Hamers, respectively, as objectionable:

Q: Under the circumstances existing in that area at the time 

of this fire, did you think it was reasonable for Jerry Naber to be 

driving a gas pickup truck directly into a combined field? . . . . A: No.

. . . . 

Q: Given the conditions that were existing at the time that 

Jerry pulled his pickup truck into the combined field, did you think it 

was reasonably safe for him to do that? A: No.

. . . . 

Q: Under the conditions then and there existing at the time of 

the fire, or just before the fire, I should say, in your expert opinion to 

a reasonable degree of certainty was it reasonably safe for Jerry to

drive his gas pickup into that combined field? . . . . A: No, I believe 

it was unsafe at that time. The ground conditions and the ground 

cover conditions were such that it was very easy to ignite the crop

debris using a—the temperature of the heat from an exhaust system 

under a pickup.

While the complained of expert testimony may have embraced the ultimate issue, 

none of the testimony reached a legal conclusion regarding whether Jerry was 

negligent. See id.; Haskenhoff, 897 N.W.2d at 600 (noting “questions such as 

whether a defendant was negligent or not negligent are improper because 

‘[e]xperts are not to state opinions as to legal standards’” (alteration in original) 

(emphasis added) (quoting Iowa R. Evid. 5.704 committee cmt. (1983))). 

Furthermore, expert testimony establishing a standard of care is “generally 

permitted in negligence actions.” See Haskenhoff, 897 N.W.2d at 600. We find 

the complained-of testimony served as a means to establish the standard of care 

rather than opine as to a legal conclusion. 

D. Exclusion of Testimony 

Next, Jerry claims the district court erred in excluding testimony that a 

firefighter did not assist Craig after he requested help extinguishing his front tire. 
11

Jerry sought to introduce the testimony regarding the firefighter’s failure to act as 

evidence of a superseding cause between his conduct, which started the fire, and 

the destruction of the entire tractor and damage to the attachment. See Hayward 

v. P.D.A., Inc., 573 N.W.2d 29, 32 (Iowa 1997) (“[A] defendant’s conduct is not a 

proximate cause of a plaintiff’s harm if it is superseded by later-occurring 

independent forces or conduct.”). “To conclude that an event or conduct 

constitutes a superseding cause, the court must find that ‘the later-occurring event 

is such as to break the chain of causal events between the actor’s [conduct] and 

the plaintiff’s injury.’” Id. (quoting Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 

(Iowa 1991)). “In order for an intervening act or force to relieve an individual from 

liability, [the harm] must not have been a normal consequence of his [or her] acts 

or have been reasonably foreseeable.” Id. (first alteration in original) (quoting 

Haumersen v. Ford Motor Co., 257 N.W.2d 7, 15 (Iowa 1977)).

We first note the firefighter’s failure to act could not relieve Jerry from liability 

because damage to nearby farming equipment, the tractor and attachment, was a 

normal consequence of the field fire and was reasonably foreseeable. See id. 

Consequently, we agree with the district court’s determination that the testimony 

should have been excluded because it was not relevant. See Spahr v. Kriegel, 

617 N.W.2d 914, 917 (Iowa 2000) (“Evidence is relevant if it renders the existence 

of a fact more probable or less probable as a result of that evidence.”). The 

purported failure of the firefighter to act could not serve as a superseding cause to 

relieve Jerry of any liability, and, furthermore, Jerry provided no offer of proof 

regarding whether the person was actually a firefighter, heard Craig’s request, or 
12

had the ability to extinguish the fire. We find the court did not abuse its discretion 

in excluding the testimony or in denying the motion for new trial on this basis.

E. Jury Instructions 

Jerry contends the court erred in submitting three possible forms of 

negligent conduct to the jury in the marshalling instruction and argues the error 

necessitates a new trial. Craig responds that this issue is not preserved for review 

because Jerry did not raise the issue in his motion for new trial. However, Jerry 

objected to the marshalling instruction during trial, and the court considered and 

ruled upon the issue preserving it for appellate review. See Schmitt v. Koehring 

Cranes, Inc., 798 N.W.2d 491, 496 (Iowa Ct. App. 2011) (finding jury-instruction 

issue preserved when a party requested an instruction that was denied and the 

party objected to its exclusion but failed to raise the issue in its motion for new 

trial). As a result, we reach the merits of Jerry’s claim.

When submitting a negligence claim, “a plaintiff must identify the specific 

acts or omissions relied on to generate a jury issue.” Herbst v. State, 616 N.W.2d 

582, 585 (Iowa 2000). “Jury instructions should be formulated so as to require the 

jury to focus on each specification of negligence that finds support in the evidence.” 

Id. (quoting Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995)). The marshalling 

instruction submitted to the jury specified three possible forms of conduct the jury 

could rely upon to conclude Jerry acted negligently. Those are: 

(a) He parked his truck such that it was in direct contact or 

very close to dry vegetation that could catch fire,

(b) He failed to keep his truck away from dry vegetation, or

(c) He failed to make sure that the area where he drove and 

parked his truck was safe for that activity.
13

Jerry asserts the marshalling instruction presented erroneous potential 

instances of negligence because “[t]here is no authority, by statute or common law 

that says a farmer cannot drive his pickup truck into a field at harvest time.”

6

 

However, a negligence case does not require violation of a specific law, rather it 

requires a party to violate a duty to comply with a standard of care and depends 

on the facts of each individual case. See, e.g., id. at 586 (identifying an approved 

jury instruction in a negligence case that alleged a party was negligent for “blocking 

an aisle by placement of [an] ashtray”). A negligence specification should be 

submitted to the jury so long as there is sufficient evidence supporting the claim. 

See id. at 585. Here, there was sufficient evidence presented supporting all three 

negligence specifications. There was evidence presented indicating Jerry parked 

his truck in a dry combined field and the truck’s exhaust system was roughly the 

same height as the dry corn stalks so that they could come in contact and ignite. 

There was evidence presented that Jerry did not keep the truck away from the corn 

stalks and he did not consider the condition of the area where he parked or whether 

parking the truck over dry corn stalks would increase the risk of fire. Craig provided 

sufficient evidence through testimony of several witnesses from which the jury 

could find that all three forms of conduct violated the standard of care followed by 

those in the farming industry. As a result, the court did not err in submitting the 

marshalling instruction, and a new trial is not required.

 

6 Jerry also briefly argues the third possible form of negligent conduct, for his failure to 

ensure “he drove and parked his truck in an area safe for that activity,” amounts to a 

premises-liability claim. This is not a premises-liability claim, rather it is a claim that Jerry 

did not reasonably conform his conduct to the conditions he found himself in. See Ries v. 

Steffensmeier, 570 N.W.2d 111, 113 (Iowa 1997) (“[P]remises liability stems from physical 

harm to the plaintiff caused by a condition on the possessor’s land.”).
14

F. Craig’s Cross-Appeal 

On cross-appeal, Craig claims the district court erred in ordering interest to 

begin accruing from the date the action commenced rather than the date of the 

fire. Iowa Code section 668.13(1) (2016) provides: “Interest . . . shall accrue from 

the date of the commencement of the action.” Our supreme court has “recognized, 

however, that this statute does not govern in those situations in which our case 

law has provided that interest may be allowed from a date prior to the filing of a 

petition.” Gosch, 701 N.W.2d at 92. “One such exception has been stated to be 

that . . . [i]nterest is allowable on unliquidated claims wherever it appears that the 

damage was complete at a particular time . . . .” See id. (internal quotation marks 

omitted) (quoting Bridenstine v. Iowa City Elec. Ry., 165 N.W. 435, 439 (Iowa 

1917)). Here, the damage to the tractor and attachment was complete on the date 

of the fire, October 19, 2015, and Craig is entitled to interest accruing from that 

date.

IV. Conclusion

On Jerry’s appeal, we find no error necessitating a new trial and affirm the 

district court. On Craig’s cross-appeal, we conclude interest on the judgment 

award of $198,100 should accrue from October 19, 2015, at the statutory legal 

interest rate, and we modify the judgment to reflect the same. See id. at 93.

AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSSAPPEAL.