IN THE COURT OF APPEALS OF IOWA

No. 13-2086

Filed April 8, 2015

SALEM UNITED METHODIST CHURCH 

OF CEDAR RAPIDS, IOWA,

Plaintiff-Appellee,

vs.

CHURCH MUTUAL INSURANCE COMPANY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, 

Judge.

An insurer contends the district court improperly construed clear and 

unambiguous exclusions in the policy and erred in attempting to harmonize the 

jury’s answers to the special verdict form. REVERSED AND REMANDED.

Robert B. McMonagle of Lane & Waterman, L.L.P., Davenport, for 

appellant.

William H. Roemerman and Stephanie A. Legislador of Crawford, Sullivan, 

Read & Roemerman, P.C., Cedar Rapids, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2

DANILSON, C.J.

Salem United Methodist Church of Cedar Rapids, Iowa, sought coverage 

from its insurer, Church Mutual Insurance Company, for damage sustained 

during a flood. Following a jury trial, Salem prevailed. On appeal, Church Mutual

contends the district court improperly construed clear and unambiguous 

exclusions in the policy and awarded damages in an amount contrary to the 

terms of the policy and the jury’s answers to special interrogatories. Because we 

find the court erred in construction of the insurance policy and we are unable to 

harmonize the answers under the evidence and the law, we reverse the district 

court’s judgment and remand for a new trial. 

I. Background Facts and Proceedings.

Salem had property insurance, but not flood insurance, through Church 

Mutual. In 2008, the Cedar River overflowed its banks and inundated the City of 

Cedar Rapids. 

Salem sought coverage from Church Mutual for losses resulting from 

sewer backup. When the insurer denied coverage, Salem sued for breach of 

contract. The case proceeded to jury trial. The jury completed a special verdict 

form, as follows:

Question No. 1: Did Salem prove that there was sewer back up that 

invaded its property through sewers or drains?

Answer “yes” or “no”

ANSWER: YES

[If your answer is “no” do not answer Question No. 2, but proceed 

to Question 3]

Question No. 2: Did Salem prove that the sewer back up was 

caused by an event away from its property?
3

Answer “yes” or “no”

ANSWER: YES

Question No. 3: Did Salem prove that water or other liquids leaked 

or flowed from plumping equipment?

ANSWER: YES

[If your answer to eithers Questions 1 or 2, and Question 3 were 

“no”, do not answer any further questions].

Question No. 4: With respect to the claim of sewer back up 

damage, did Church Mutual prove that the sole cause of the 

damage to Salem’s property was flood?

Answer “yes” or “no.”

ANSWER: NO

Question No. 5: Did Church Mutual prove that the leakage or 

flowing of water or other liquids from plumbing equipment was 

directly or indirectly caused by flood?

ANSWER: NO.

[If you answer to both Questions 4 and 5 were “yes,” do not answer 

any further questions.]

Question No. 6: State the total amount of loss sustained by Salem 

in the basement of their facility as a result of the events of June 11 

& 12, 2008.

TOTAL: $705,765.07

Question No. 7: [Answer this question only if you answered “yes” to 

Questions 1 and 2, and “no” to Question 4] What amount of the 

total amount of loss sustained by Salem in the basement of their 

facility as a result of the events of June 11 & 12, 2008, was caused 

by the back up of the sewer?

TOTAL: $0

Question 8: [Answer this question only if you answered “yes” to 

Question 3 and “no” to Question 5] What amount of the total 

amount of loss sustained by Salem in the basement of their facility 
4

as a result of the events of June 11 & 12, 2008, was caused solely 

by the leakage or flowing of water or other liquids from plumbing 

equipment?

TOTAL: $0

The district court accepted the verdict form, and the jury was dismissed. 

The district court concluded “that if a covered peril combines with any 

other peril to cause the loss, there is coverage for the loss. The jury’s answers 

do not require speculation on the part of the Court, and it is clear the jury’s 

damages award was based on the combination of the two causes of [Salem’s] 

loss.” (Internal citation excluded.) Additionally, the court found “the issues of 

ambiguity and reasonable expectations are moot under these facts.” The court 

entered judgment for Salem in the amount of $705,765.07. Church Mutual 

appeals. 

II. Standard of Review.

We review the district court’s construction of an insurance policy for 

corrections of error at law. Postell v. Am. Family Mut. Ins. Co., 823 N.W.2d 35, 

41 (Iowa 2012). 

III. Discussion.

Our supreme court has recently summarized our well-settled rules 

governing the construction and interpretation of insurance policies as follows:

The cardinal principle . . . is that the intent of the parties at 

the time the policy was sold must control. Except in cases of 

ambiguity, we determine the intent of the parties by looking at what 

the policy itself says. If a term is not defined in the policy, we give 

the words their ordinary meaning. We will not strain the words or 

phrases of the policy in order to find liability that the policy did not 

intend and the insured did not purchase.

[A] policy is ambiguous if the language is susceptible to two 

reasonable interpretations when the contract is read as a whole. If 
5

the policy is ambiguous, we adopt the construction most favorable 

to the insured. An insurance policy is not ambiguous, however, just 

because the parties disagree as to the meaning of its terms. 

Moreover, ambiguity is not present merely because the provision 

could have been worded more clearly or precisely than it in fact 

was. If an insurance policy and its exclusions are clear, the court 

will not write a new contract of insurance for the parties. We 

construe exclusions strictly against the insurer. Nevertheless, we 

must enforce unambiguous exclusions as written.

Amish Connection, Inc. v. State Farm Fire and Cas. Co., ___ N.W.2d ___, 2015 

WL 1260085, at *10 (Iowa 2015) (internal quotation marks and citations omitted).

Here, the relevant policy language is as follows:

EXCLUSIONS

We will not pay for loss or damage caused directly or indirectly by

any of the following. Such loss or damage is excluded regardless of 

any other cause or event that contributes concurrently or in any 

sequence to the loss.

. . . .

7. Water.

a. Flood, surface water, waves, tides, tidal waves, overflow of any 

body of water, or their spray, all whether driven by wind or not;

. . . .

ADDITIONAL COVERAGE—BACK UP THROUGH SEWERS 

AND DRAINS

Subject to all other terms and conditions of this policy, we will pay 

for direct physical loss or damage to Covered Property caused by 

back up of water or sewage through sewers or drains only if caused 

by an event away from the described buildings and when the 

damage is not caused by flood, surface water, waves, tides, tidal 

waves, overflow of any body of water, or their spray, all whether 

driven by wind or not, and which did not enter the building through 

foundations, walls, floors, windows, cracks, roofs, or through other 

opening of the building.

Sewer or water damage occurring as a result of, either before or 

after, the excluded flood, surface water, waves, tides, tidal waves, 

overflow of any body of water, or their spray, all whether driven by 

wind or not, and entering the building through foundations, walls, 

floors, windows, cracks, roofs, or through other openings of the 

building is not covered.
6

(Emphasis added.) Church Mutual first contends the policy clearly and 

unambiguously provides that there is no coverage for damages arising from 

concurrent causes when one of the causes is excluded and the district erred in 

ruling otherwise.

1

 Secondly, Church Mutual contends even if the anti-concurrent 

cause language is not given effect under these facts, the district court erred as 

the jury’s answers to the special verdict are inconsistent and may not be 

harmonized to support a verdict for Salem.

A. Policy Coverage for Concurrent Causes. 

The exclusion for flood damage is clear. The policy also unambiguously 

excludes coverage for damages that are concurrently caused by a covered 

cause—such as sewer back up—and an uncovered cause—such as flooding by 

its language, “Such loss or damage is excluded regardless of any other cause or 

event that contributes concurrently or in any sequence to the loss.” “If an 

insurance policy and its exclusions are clear, the court will not write a new 

contract of insurance for the parties.” Boelman v. Grinnell Mut. Reinsurance Co., 

826 N.W.2d 494, 502 (Iowa 2013). “Insurance coverage is a contractual matter 

and is ultimately based on policy provision.” Jones v. State Farm Mut. Auto. Ins. 

Co., 760 N.W.2d 186, 188 (Iowa 2008). And in a similar claim with identical 

policy language, we concluded in Lifeline Ministries Church v. Church Mutual

Insurance Co., No. 12–1181, 2013 WL 2107408, at *3 (Iowa Ct. App. May 15,

2013):

 

1 Salem contends this alleged error is not preserved for our review. Church Mutual 

argued that the policy “does not cover concurrent loss events where one cause is 

excluded” in its post-trial brief, and the district court found there was coverage in spite of 

this contention. Thus, the issue is preserved for review.
7

The policy plainly covers “damage to Covered Property caused by 

back up of water or sewage through sewers or drains only . . . when 

the damage is not caused by flood.” The policy reiterates “[s]ewer 

or water damage occurring as a result of, either before or after, the 

excluded flood . . . is not covered.” And, in its general exclusion 

section, the policy separately excludes “loss or damage caused 

directly or indirectly by . . . flood.”

The district court relied on Kalell v. Mutual Fire and Auto Insurance Co., 

471 N.W.2d 865, 867 (Iowa 1991) for the proposition, “[I]f a covered peril 

combines with any other peril to cause the loss, there is coverage for the loss.” 

But Kalell did not create a maxim that the insurance company must provide 

coverage when a covered and an uncovered peril combine to cause a loss. 471 

N.W.2d at 868–69. Rather, Kalell holds that “[w]hen insurance policies lack . . . 

an anticoncurrent-cause provision, . . . an accident that has two independent 

causes, one of which is covered and one excluded, is covered unless the 

excluded cause is the sole proximate cause.” Amish Connection, Inc., ___

N.W.2d ___, 2015 WL 1260085, at *10 (discussing the court’s holding in Kalell). 

Parties are free, as Salem and Church Mutual did here, to contract otherwise. 

See Boelman, 826 N.W.2d at 506 (“[W]e allow insurers to limit coverage to only 

specific claims.”); see also Kalell, 471 N.W.2d at 868 (“If [the insurer] intended to 

exclude coverage of an incident simply because it involved a motor vehicle, it is 

incumbent on it to say so in its policy.”). In this case, the policy in question does 

contain an anticoncurrent-cause provision. Both the facts and the policy in 

question in Kalell are readily distinguishable from those in the present case. See 

471 N.W.2d at 866 (considering a homeowner’s policy and the meaning of

“arising out of” language in exclusion clause). For these reasons, the district 
8

court erred in construing the policy and if a flood is a concurrent cause, there is 

no coverage. 

B. Special Verdict.

In our recent case of Lifeline Ministries, we recited the applicable law to 

these proceedings as follows:

“A special verdict consists entirely of questions that elicit 

special written answers to resolve the material issues of fact in the 

case, and the court then enters judgment based on the findings 

made by the jury.” Clinton Physical Therapy Servs., 714 N.W.2d at 

610. The answers to the questions “must be internally consistent.” 

Id. at 612 (noting that rule 1.933 is read in tandem with rule 1.934 

governing special interrogatories supplementing general verdicts, 

which specifically addresses inconsistent answers). If they are not 

consistent, “the court must either resume deliberations or grant a 

new trial.” Id. at 613.

“[T]he process of determining whether answers are 

inconsistent focuses on the evidence and the law, and the court 

must decide if the two answers at issue can be harmonized in light 

of the evidence and the law.” Id. “When, under this analysis, two 

answers or findings by the jury would compel the rendition of 

different judgments, the answers are inconsistent.” Id. The 

“process of determining whether answers are inconsistent by 

attempting to harmonize the answers with the evidence and the law 

is separate from the process of reconciling two answers determined 

to be inconsistent.” Id. at 613–14.

2013 WL 2107408, at *4.

Salem contends Church Mutual did not preserve error on the issue of 

inconsistent answers. Although the parties agreed to a sealed verdict, the record 

reflects that the district court opened the verdict and informed counsel before 

discharging the jury. Because Church Mutual did not object to any inconsistency 

in the jury’s answers, Salem contends it did not preserve error as the jury could 

have been sent back in for further deliberations to correct any such errors. 
9

We agree with Salem that there is some case law suggesting failure to 

object when the opportunity to correct inconsistencies exists may not preserve 

error. However, in Clinton Physical Therapy Services, P.C. v. John Deere Health 

Care, Inc., 714 N.W.2d 603, 610 (Iowa 2006), our supreme court noted in cases 

of special verdicts:

[T]he jury resolves pertinent factual issues pursuant to the court’s 

instructions, and the trial court enters the general verdict by 

applying the applicable law to the jury’s factual determinations. 

Nevertheless, the rules governing inconsistent answers in a verdict 

are the same. Whether the answers are in response to special 

interrogatories or are answers to a special verdict, if they are 

inconsistent, then the court must either resume deliberations or 

grant a new trial. 

(Internal citations omitted.) The court also stated, “[A] sealed verdict may 

constitute a waiver of the additional-deliberations option, but it would not 

constitute a waiver of other remedies.” Id. at 610. Because the remedy of a new 

trial remains, Church Mutual has not waived error.2

Notwithstanding, we do not perceive Church Mutual’s arguments on 

appeal as contending the jury’s answers were inconsistent. Rather, we construe 

Church Mutual’s arguments as contending the district court erred in its attempt to 

harmonize the answers with the applicable facts and law. As we have noted 

from the principles cited in Clinton Physical Therapy, the process of harmonizing 

the answers is a different process than reconciling conflicting answers. 714 

N.W.2d at 610. If the answers may be reasonably harmonized under the 

 

2

The court’s comments to the jury indicate counsel was given the opportunity to 

complain about any inconsistency in the jury’s answers. But the better practice is to 

make a record of the conversations with counsel, so we can be certain the district court 

informed counsel that the jury had not yet been discharged and was available to 

continue their deliberations if the answers were inconsistent. 
10

evidence and the instructions, they are not inconsistent. Id. at 613. The 

supreme court explained:

The test recognizes that the determination of whether two answers 

are inconsistent requires the court to consider how the jury could 

have viewed the evidence and how that view of the evidence fits 

into the requirements of the instructions or the law applicable to the 

case. See 66 C.J.S. New Trial § 82, at 172 (1998) (“In determining 

whether findings or answers are inconsistent or irreconcilable so as 

to warrant a new trial, the findings or answers are to be construed 

in light of the surrounding circumstances and in connection with the 

pleadings, instructions and issues submitted.”).

Id.

The district court concluded the answers could be reasonably harmonized,

and both parties agree. However, each contends the answers may only be 

harmonized in support of a verdict in its favor. The district court reached the 

following conclusions:

The Court finds that when the policy is constructed as 

applied to the facts, as determined by the jury, judgment should be 

entered in favor of Plaintiff. Plaintiff admits that it has the burden to 

show that its loss fell within the general promise of coverage in the 

policy. The burden of pleading and proving an exclusion or 

exception in a policy of insurance is placed on the insurer. The 

jury’s response to Question 4 establishes that the jury did not 

believe Defendant met its burden of proof in showing that the sole 

cause of the damage to Salem's property was flood. The jury’s 

response to Question 5 establishes that the jury did not believe 

Defendant met its burden of proof in showing that the leakage or 

flowing of water or other liquids from plumbing equipment was 

directly or indirectly caused by flood. The fact-finding was 

supported by the evidence, particularly the testimony of Mr. Pankey 

and Mr. Ransom. The jury’s answers to Questions 1 and 2 show 

that Plaintiff carried its burden of proof in establishing that there 

was sewer back up that invaded its property through sewers or 

drains, and that the sewer back up was caused by an event away 

from its property. These answers from the jury provide a factual 

basis for concluding that, under the terms of the policy, the loss fell 

within the general promise of coverage in the policy in that there 

was a covered loss due to leaking plumbing and back up through 

sewers and drains.
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Further, the jury’s answers to Questions 7 and 8 show that 

the jury did not believe any part of the damages was caused solely 

by sewer back up or solely by plumbing leakage, but rather the 

damages were caused by a combination of these two causes. 

There is authority in Iowa supporting a finding that if a covered peril 

combines with any other peril to cause the loss, there is coverage 

for the loss. The jury’s answers do not require speculation on the 

part of the Court, and it is clear that the jury’s damages award was 

based on the combination of the two causes of Plaintiff’s loss.

With respect to the arguments regarding ambiguity and 

reasonable expectations, the Court concludes that because the jury 

determined that the sewer back up damage and damage from 

leaking or flowing pipes is not damage that is excluded from 

coverage under the terms of the policy, the issues of ambiguity and 

reasonable expectations are moot under these facts. Based on the 

post-trial issues briefed by the parties, the Court finds judgment 

should be entered in favor of Plaintiff.

(Internal citations and quotation marks omitted.)

Clearly the district court’s conclusions relied upon principles espoused in 

Kalell, which we have found distinguishable. We do not know the probable 

resolution by the district court had it considered the fact that the policy prohibited 

coverage when both a covered peril and an uncovered peril or perils jointly caused 

the damage. 

We have reviewed the arguments of the parties and have painstakingly 

considered the answers provided by the jury. It is our conclusion that we can 

only speculate what verdict should have been entered and cannot harmonize the 

answers with the evidence and the law. 

One concern we have is that the jury was never asked if Salem’s 

damages were caused by concurrent causes and if so, whether Church Mutual 

proved that the flood was a concurrent cause of Salem’s damages. See Farm 

Bureau Life Ins., v. Chubb Custom Ins. Co., 780 N.W.2d 735, 742 (Iowa 2010)
12

(“Insurers relying on exclusions from coverage have the burden to prove their 

applicability.”).3

Another difficulty we face relates to verdict form questions six, seven, and 

eight, which refer to “the events of June 11 & 12, 2008.” The jury was not 

instructed upon a definition of the phrase, and we can only surmise what it 

means. We are unable to correlate this phrase with terms of the insurance 

policy. 

Because we are unable to harmonize the answers under the evidence and 

the law, we reverse the district court’s judgment and remand for a new trial. 

REVERSED AND REMANDED.

 

3 The jury was only asked if Church Mutual proved the leakage or flowing of liquids from 

plumbing equipment was directly or indirectly caused by flood. To this question the jury 

answered “no.” However the jury was not asked if the sewer back up was directly or 

indirectly caused by the flood. Further, we do not believe Church Mutual has met its 

burden of proof by simply proving that neither of Salems’s two claimed causes were the 

sole proximate cause for the damages without proving the flood was a concurrent cause. 

Although it may be unlikely, the jury could have concluded the leakage and the sewer 

back up were the only concurrent causes for Salem’s damages.