IN THE SUPREME COURT OF IOWA

No. 08–0391

Filed July 17, 2009

KALE SWAINSTON and STEPHANIE SWAINSTON,

Appellants,

vs.

AMERICAN FAMILY MUTUAL INSURANCE COMPANY,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, 

Judge.

Further review of court of appeals decision affirming district court 

summary judgment in favor of insurer, dismissing policyholders' claim for 

uninsured motorist benefits. DECISION OF COURT OF APPEALS 

VACATED. DISTRICT COURT JUDGMENT REVERSED AND CASE 

REMANDED.

Steven V. Lawyer of Steven V. Lawyer & Associates, P.L.C., 

Des Moines, for appellants.

Coreen K. Sweeney and Anna W. Mundy of Nyemaster, Goode, West, 

Hansell & O'Brien, P.C., Des Moines, for appellee.
2

TERNUS, Chief Justice.

The appellants, Kale and Stephanie Swainston, appeal from a district 

court summary judgment ruling, holding that the appellee, American Family 

Mutual Insurance Company, has no obligation to pay uninsured motorist 

(UM) benefits to the Swainstons under an insurance policy issued to them by 

American Family. The court of appeals affirmed the district court decision 

that American Family had no liability under its policy because its UM 

benefits could not be stacked on top of UM benefits recovered by the 

Swainstons under a policy issued by another insurer. Upon our further 

review, we hold that American Family’s liability is governed by Iowa Code 

section 516A.2(3) (2003), and this statute requires American Family to pay 

up to its policy limits, subject to the Swainstons meeting the other 

prerequisites of the policy. Therefore, we vacate the court of appeals 

decision, reverse the district court judgment, and remand for further 

proceedings.

I. Background Facts and Proceedings.

In 2004 the Swainstons were passengers in a vehicle involved in a 

collision when an approaching van driven by Jaime Colqul crossed the 

centerline and struck the vehicle in which the Swainstons were riding. 

Although Colqul was uninsured, the owner of the vehicle in which the 

Swainstons were passengers had an automobile policy issued by State Farm 

Mutual Automobile Insurance Company with UM limits of $250,000 per 

person and $500,000 per accident. State Farm paid the limits of its UM 

coverage to the Swainstons and three other persons injured in the accident.

Kale received $195,000, and Stephanie was paid $54,000.

At the time of the collision, the Swainstons had their own automobile 

policy issued by American Family. This policy included uninsured motorist 

coverage with per-person limits of $100,000 and per-accident limits of 
3

$300,000. The Swainstons brought this suit to recover UM benefits under 

the American Family policy. 

American Family filed a motion for summary judgment, contending 

Iowa Code section 516A.2 prohibited the plaintiffs’ recovery under the 

American Family policy because they had already received UM benefits 

under the higher limits provided by the State Farm policy. American Family 

asked for judgment in its favor and a dismissal of the plaintiffs’ claim for UM 

benefits. The plaintiffs responded with their own motion for partial 

summary judgment, claiming the American Family policy allowed stacking of 

UM coverages, and such stacking was not prohibited by section 516A.2. 

They requested a ruling from the court that American Family had coverage 

for their damages up to the amount of its policy limits.

The district court determined the American Family policy was silent as 

to stacking, and therefore, pursuant to section 516A.2(3), the Swainstons’ 

recovery was limited to the highest single limit of applicable UM coverages. 

Because the State Farm UM limits were higher than the American Family 

UM limits, the court concluded the plaintiffs were not entitled to recover 

under the American Family policy. The court granted summary judgment to 

American Family on the plaintiffs’ claim and denied the plaintiffs’ crossmotion for partial summary judgment.

The plaintiffs appealed, and their appeal was transferred to the court 

of appeals. The court of appeals agreed with the reasoning of the district 

court and affirmed the district court’s judgment. We granted the plaintiffs’

application for further review.

II. Legal Principles Governing Our Review.

A. Scope of Review. We review rulings on summary judgment 

motions for the correction of errors of law. Thomas v. Progressive Cas. Ins. 

Co., 749 N.W.2d 678, 681 (Iowa 2008). “To obtain a grant of summary 
4

judgment on some issue in an action, the moving party must affirmatively 

establish the existence of undisputed facts entitling that party to a particular 

result under controlling law.” Interstate Power Co. v. Ins. Co. of N. Am., 603 

N.W.2d 751, 756 (Iowa 1999).

B. Contract Interpretation. “When the parties offer no extrinsic 

evidence on the meaning of policy language, the interpretation and 

construction of an insurance policy are questions of law for the court.” Lee 

v. Grinnell Mut. Reins. Co., 646 N.W.2d 403, 406 (Iowa 2002). In construing 

insurance contracts, we adhere to the rule “that the intent of the parties 

must control.” A.Y. McDonald Indus., Inc. v. Ins. Co. of N. Am., 475 N.W.2d 

607, 618 (Iowa 1991). Except in cases of ambiguity, that intent is 

determined by what the policy says. Id. 

Statutory provisions also play a role in the interpretation of insurance 

contracts, as we explained in Thomas: 

Notwithstanding the principle that the plain meaning of an 

insurance contract generally prevails, this court has recognized 

that statutory law may also affect the interpretation and validity 

of policy provisions. When a statute authorizes a contract of 

insurance, “ ‘[t]he statute itself forms a basic part of the policy

and is treated as if it had actually been written into the policy.’ ” 

Consequently, when construing a contract provision that affects 

underinsured [or uninsured] motorist coverage, we must review 

not only the language of the policy but the terms of the UIM [and 

UM] statute, Iowa Code chapter 516A, as well.

749 N.W.2d at 682 (quoting Lee, 646 N.W.2d at 406) (citations omitted).

C. Statutory Interpretation. Principles of statutory interpretation 

are well established.

In construing statutes, we give effect to the legislature’s 

intention. In ascertaining legislative intent, we consider the 

language used in the statute, the object sought to be 

accomplished, and the wrong to be remedied. We consider all 

parts of an enactment together and do not place undue 

importance on any single or isolated portion. 
5

Mortensen v. Heritage Mut. Ins. Co., 590 N.W.2d 35, 39 (Iowa 1999) (citations 

omitted).

III. Discussion.

It is important at the outset to have a clear understanding of two 

concepts that are important in this case––stacking and other insurance 

clauses.

The concept of “stacking” coverages . . . arises where the same 

claimant and the same loss are covered under multiple policies, 

or under multiple coverages contained in a single policy, and the 

amount available under one policy is inadequate to satisfy the 

damages alleged or awarded. In essence, stacking describes the 

phenomenon of insureds . . . adding all available policies 

together to create a greater pool in order to satisfy their actual 

loss.

12 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 169:4, at 169-14 

to 169-15 (3d ed. 1998) (footnote omitted) [hereinafter Couch on Insurance]; 

accord Mortensen, 590 N.W.2d at 38 (“Stacking is a term which refers to the 

availability of more than one insurance policy, or one policy with multiple 

vehicles, providing reimbursement of the losses of the insured.”); Farm 

Bureau Mut. Ins. Co. of Iowa v. Ries, 551 N.W.2d 316, 318 (Iowa 1996) 

(same). When an insured seeks to recover UM benefits under more than one 

policy, as here, the issue is one of interpolicy stacking. Mortensen, 590 

N.W.2d at 38. “Intrapolicy stacking occurs when the insured recovers . . . 

uninsured benefits for more than one vehicle under a single policy.” Id. 

Other insurance provisions are conceptually different from stacking. 

The basic difference between the concept of stacking and 

the operation of other insurance clauses can be simply stated 

as: other insurance clauses address rules for determining 

responsibility if more than one coverage is considered to apply, 

while stacking addresses whether more than one coverage which 

would otherwise be applicable should, in fact, be applied at all. 

As such, the “other insurance” clauses should only come into 

play after the determination of whether the insured has the right 

to stack coverages at all.
6

Couch on Insurance § 169:9, at 169-23 (footnote omitted); accord Mortensen, 

590 N.W.2d at 40 (“Stacking concerns whether more than one coverage 

should be paid to an insured. Other insurance clauses, on the other hand, 

apply after a determination of the applicability of stacking has been made, 

and address rules of responsibility between insurance companies.” (Citation 

omitted.)).1

“Other insurance clauses are generally of three types: (1) calling for 

proration of coverage between the multiple policies; (2) stating that the policy 

will be ‘excess’ to any other applicable coverage; (3) seeking to avoid any 

contribution at all.” Couch on Insurance § 169:9, at 169-23 (footnote 

omitted). When an other insurance provision is of the last type, providing 

that the coverage will not apply when other applicable coverage exists, “the 

other insurance provision may be considered either to preclude the issue of 

stacking by rendering the additional coverage inapplicable, or to represent a 

policy provision which prohibits stacking.” Id. at 169-24; accord id. 

§ 169:32, at 169-73 (“The insurer may also avoid stacking by using an ‘other 

insurance’ or ‘excess escape’ clause which is unambiguous . . . .” (Footnote 

omitted.)).

With these concepts in mind, we turn to the Iowa statute that has 

been interpreted to allow insurers to include either stacking or antistacking 

provisions in the UM coverage of their policies. See Iowa Code § 516A.2.2

A. Section 516A.2. Iowa Code section 516A.2(1) requires that UM 

coverage be afforded, “whether alone or in combination with similar coverage 

 1Admittedly, our prior cases have not been entirely consistent in distinguishing 

between the concept of stacking—the availability of multiple coverages––and other insurance 

provisions addressing the priority of coverage when multiple coverages are available. See,

e.g., Mewes v. State Farm Auto. Ins. Co., 530 N.W.2d 718, 725 (Iowa 1995) (referring to 

insurer’s other insurance clause as an antistacking provision). 

2Section 516A.2 also applies to underinsured motorist (UIM) coverage. Because UIM 

coverage is not at issue in this case, we limit our references in this opinion to UM coverage.
7

afforded [under other policies],” only in limits that would have been afforded 

had the insured been injured by a motorist insured under a policy with the 

minimum liability limits required by Iowa law. Id. § 516A.2(1).3

While section 516A.2(1) allows antistacking provisions, section 

516A.2(2) requires the commissioner of insurance to assure the availability 

 Because 

this statute requires only minimum limits, we have construed this provision 

to permit insurers to include policy terms prohibiting stacking of multiple 

UM benefits. Mortensen, 590 N.W.2d at 38–39. In other words, an 

insurance company can prohibit interpolicy stacking by including a 

provision stating that its policy does not provide coverage if the insured has 

UM coverage under another policy providing at least the required minimum 

limits. Similarly, an insurer can avoid intrapolicy stacking by stating that 

only one limit of liability is available regardless of the number of vehicles 

insured. See Couch on Insurance § 169:40, at 169-88 to 169-90 (discussing

insurers’ use of limit-of-liability provisions to prohibit intrapolicy stacking).

 3Iowa Code section 516A.2(1) provides in pertinent part: 

[N]othing contained in this chapter shall be construed as requiring forms of 

coverage provided pursuant hereto, whether alone or in combination with 

similar coverage afforded under other automobile liability or motor vehicle 

liability policies, to afford limits in excess of those that would be afforded had 

the insured thereunder been involved in an accident with a motorist who was 

insured under a policy of liability insurance with the minimum limits for 

bodily injury or death prescribed in subsection 11 of section 321A.1. Such 

forms of coverage may include terms, exclusions, limitations, conditions, and 

offsets which are designed to avoid duplication of insurance or other benefits. 

To the extent that Hernandez v. Farmers Insurance Company, 460 

N.W.2d 842 (Iowa 1990), provided for interpolicy stacking of uninsured or 

underinsured coverages in contravention of specific contract or policy 

language, the general assembly declares such decision abrogated and 

declares that the enforcement of antistacking provisions contained in a motor 

vehicle insurance policy does not frustrate the protection given to an insured 

under section 516A.1.

(Emphasis added.) Iowa Code section 321A.1(11), which provides the baseline for UM 

coverage under section 516A.2(1), requires liability limits of $20,000 per person and 

$40,000 per accident. 
8

of policies that provide for the stacking of UM coverages. Iowa Code 

§ 516A.2(2).4

The dispute in this case centers on the third subsection of section 

516A.2, which states:

 We have interpreted this provision as evidencing a legislative 

intent that parties may contract for policies that permit stacking of UM 

benefits. Mortensen, 590 N.W.2d at 39.

It is the intent of the general assembly that when more than one 

motor vehicle insurance policy is purchased by or on behalf of 

an injured insured and which provides uninsured . . . motor 

vehicle coverage to an insured injured in an accident, the 

injured insured is entitled to recover up to an amount equal to 

the highest single limit for uninsured . . . motor vehicle coverage 

under any one of the above described motor vehicle insurance 

policies insuring the injured person which amount shall be paid 

by the insurers according to any priority of coverage provisions 

contained in the policies insuring the injured insured.

Iowa Code § 516A.2(3). In Mortensen, we held that, when an insurance 

policy is silent with respect to the stacking of multiple UM coverages, section 

516A.2(3) provides a default rule that permits the insured “to recover up to 

the highest policy limit.” 590 N.W.2d at 39.

The plaintiffs challenge our interpretation of section 516A.2(3) in 

Mortensen, contending subsection (3) “creates a nonoptional prohibition of 

stacking of uninsured . . . coverage in those circumstances where the 

policies involved were ‘purchased by or on behalf of’ the injured individual.” 

They claim this court ignored the mandatory nature of subsection (3), as well 

as its limited reach. 

 4Section 516A.2(2) provides:

Pursuant to chapter 17A, the commissioner of insurance shall, by January 1, 

1992, adopt rules to assure the availability, within the state, of motor vehicle 

insurance policies, riders, endorsements, or other forms of coverage, the 

terms of which shall provide for the stacking of uninsured and underinsured 

coverages with any similar coverage which may be available to an insured. 

Iowa Code § 516A.2(2).
9

The policies involved in Mortensen were both issued to the injured 

party, so the applicability of the “by or on behalf of” language was not at 

issue in that case. Id. at 37. In an earlier case, however, Mewes v. State 

Farm Automobile Insurance Co., 530 N.W.2d 718 (Iowa 1995), this court did 

consider this particular language. In Mewes, we placed a broad 

interpretation on the so-called limiting language of subsection (3)––

“purchased by or on behalf of.” 530 N.W.2d at 725. We held a policy that 

provided coverage to persons based on their occupancy of the insured vehicle 

as passengers was purchased “on behalf of” the passengers as contemplated 

by subsection (3). Id. 

We are not inclined to overrule our Mewes decision. The legislature 

chose broad language to describe the scope of this subsection––“by or on 

behalf of.” Had the legislature wanted to limit the rule of this subsection to 

more restricted circumstances, it could have used more definitive terms, 

including only policies under which the injured person was a named insured 

or member of the named insured’s household. The legislature did not do so. 

Thus, our interpretation of subsection (3) is consistent with the statutory 

language, as well as the legislature’s overall intent in enacting section 

516A.2, which was to permit insurers to avoid the stacking of multiple UM 

coverages. Id. at 724.

We think our decision in Mortensen, that the rule of subsection (3) 

applies only as a default rule, is also consistent with legislative intent. It is 

apparent from the first two subsections of section 516A.2 that the legislature 

intended that Iowa insureds have the option of purchasing policies that do 

not allow stacking, as well as policies that permit stacking, the latter 

presumably at a higher cost. An insured’s freedom to choose the type of 

coverage desired would be substantially undermined if section 516A.2(3) 

were interpreted to be a mandatory rule whenever the policies were 
10

purchased by or on behalf of the injured person. Under the plaintiffs’ 

interpretation of subsection (3), an insured who purchased policies 

permitting stacking could be deprived of the benefit of his bargain. The 

plaintiffs suggest no reason the legislature would encourage the availability 

of policies that allow as well as prohibit stacking in subsections (1) and (2) 

and then impose a mandatory rule in subsection (3) that would apply 

notwithstanding the terms of the insurance contract. We continue to believe 

that interpreting subsection (3) to provide a default rule when the parties 

have failed to address stacking in their insurance contract best effectuates 

the legislative intent evidenced in section 516A.2.

Finally, and notwithstanding supporting language in Mortensen,5

 5We stated in Mortensen that section 516A.2(3) provides a default rule permitting the 

insured “to recover up to the highest policy limit, with no stacking of coverage.” 590 N.W.2d 

at 39 (emphasis added). The latter portion of this statement is not entirely accurate, as our 

discussion of the default rule in the case before us shows. Section 516A.2(3) does not make 

antistacking the default rule, as subsection (3) specifically provides for the applicability of 

multiple coverages, collectively subject to the highest limit of liability.

we 

disagree that subsection (3) prohibits stacking in the sense of limiting an 

insured to recovery under one policy, as the plaintiffs argue. First of all, 

subsection (3) only addresses interpolicy stacking. See Iowa Code 

§ 516A.2(3) (referring to situations “when more than one motor vehicle 

insurance policy is purchased by or on behalf of an injured insured” 

(emphasis added)). With respect to the applicability of multiple policies,

subsection (3) strikes a middle ground: it anticipates that all applicable 

coverages are available to pay the insured’s loss, but limits the insurers’ 

exposure under their policies to “the highest single limit for uninsured . . . 

motor vehicle coverage under any one of the above described motor vehicle 

insurance policies insuring the injured person.” Id. (emphasis added). The 

insurers’ liability for this sum is determined by the other insurance 

provisions of the policies. Id. (stating this amount “shall be paid by the 
11

insurers according to any priority of coverage provisions contained in the 

policies insuring the injured insured”). In summary, the default rule under 

subsection (3) is that an insured covered by multiple policies is entitled to 

recover the highest single applicable UM limit, paid by all insurers according 

to their other insurance clauses.6

We now examine the terms of the American Family policy.

 

B. American Family Policy. In the present case, the parties disagree 

on whether the American Family policy addresses stacking of UM benefits. 

The plaintiffs claim a provision in the “limits of liability” section of the 

American Family policy contemplates stacking and, therefore, inferentially 

authorizes stacking. This section includes the following relevant statement: 

“We will pay no more than these maximums [referring to the stated limits of 

liability] no matter how many vehicles are described in the declarations, or 

insured persons, claims, claimants, policies or vehicles are involved.” Even 

though this clause refers to the involvement of multiple policies, we are not 

convinced this isolated reference implies that UM coverage is available under 

the American Family policy when multiple policies apply. Rather, this 

sentence, considered as a whole, limits liability to the per-person and peraccident maximums stated in the declarations, effectively prohibiting 

intrapolicy stacking, i.e., the application of multiple limits of liability under 

this policy. See generally Mortensen, 590 N.W.2d at 37 n.1 (noting a similar 

provision addresses intrapolicy stacking); 24 John Alan Appleman,

 6Although the language in Mortensen referring to subsection (3) as prohibiting 

stacking or containing a default antistacking rule is not accurate because that provision 

allows recovery under multiple policies, the application of subsection (3) in Mortensen is 

entirely consistent with our analysis of that provision in the present case. Even though we 

stated in Mortensen that subsection (3) prohibited stacking, we held both policies that 

applied to the insured’s loss in that case were available to pay his damages up to the 

highest limit of one of the policies, payable in accordance with the other insurance clauses 

of the policies. Mortensen, 590 N.W.2d at 40. Accordingly, we do not overrule Mortensen

today; we merely abandon the terminology used in that decision.
12

Appleman on Insurance § 150.1[C][4], at 197–98 (2d ed. 2004) (noting such 

provisions are “designed to prohibit intra-policy horizontal stacking”). We 

conclude this provision does not promise or prohibit interpolicy stacking.

We next consider whether the other insurance provision in American 

Family’s policy addresses stacking. The “other insurance” provision of this 

policy states in relevant part:

If there is other similar insurance on a loss covered by this Part 

[UM insurance], we will pay our share according to this policy’s 

proportion of the total limits of all similar insurance. But, any 

insurance provided under this Part for an insured person while 

occupying a vehicle you do not own is excess over any other 

similar insurance.

As noted, this provision appears in the UM coverage of the policy. Therefore, 

“other similar insurance” as contemplated by this provision is other UM 

coverage. Clearly, this provision addresses the situation in which more than 

one policy providing UM coverage applies. It does not, however, contain an 

escape clause that would “avoid any contribution at all.” Couch on Insurance 

§ 169:9, at 169-23. Therefore, this provision does not address stacking as 

that term is understood in the insurance context. Mortensen, 590 N.W.2d at 

40 (holding similar provision did not cover stacking).

We conclude, as did the district court, that the American Family policy 

does not address stacking. Therefore, the default rule of section 516A.2(3) 

applies. We disagree, however, with the district court’s application of that 

rule. As we noted above, the default rule of subsection (3) has two 

components: (1) it allows the insured to recover the highest limit of the 

applicable coverages, and (2) the insurers’ liability for this sum is determined 

by their other insurance or “priority of coverage” clauses. Iowa Code 

§ 516A.2(3). Application of these components to the undisputed facts of this 

case shows that American Family does indeed have coverage under its policy 

for the plaintiffs’ damages. 
13

The undisputed facts show that both the American Family and State 

Farm policies provide coverage to the plaintiffs for the damages they 

sustained in the subject accident. The American Family policy provided 

limits of $100,000 per person and $300,000 per accident. The State Farm 

policy provided coverage subject to limits of $250,000 per person and

$500,000 per accident. Therefore, “the highest single limit for uninsured . . . 

motor vehicle coverage” provided by the applicable policies is $250,000 per 

person and $500,000 per accident. Under section 516A.2(3), the plaintiffs 

are entitled to recover up to this amount.7

We next consider the other insurance clauses of these policies, as 

section 516A.2(3) provides that the liability of insurers having available 

coverage is determined by such provisions. The record does not contain the 

complete State Farm policy. Nonetheless, State Farm has already paid its 

policy limits, so it is fair to assume that its policy provided primary coverage 

for the plaintiffs’ UM claims. American Family’s other insurance clause

states that, with one exception, it will pay its proportionate share of UM 

benefits when there is other UM insurance that covers a particular loss. The

exception is when the insured’s UM loss occurs while occupying a vehicle the 

insured does not own. In that event, the American Family UM coverage is 

excess over other UM coverage applicable to the insured’s loss. The 

undisputed facts establish that the plaintiffs were injured while occupying a 

vehicle they did not own. Therefore, the American Family coverage is excess 

over the State Farm coverage.

 

 7Although American Family states in its brief that “the Swainstons recovered the 

‘highest single limit for uninsured’ motor vehicle coverage” and consequently are prohibited 

by section 516A.2(3) from any further recovery, we find nothing in the record to support this 

statement. The undisputed facts show that neither of the plaintiffs recovered more than the 

highest per-person limit of $250,000 and together they recovered only $249,000, an amount 

substantially below the highest per-accident limit of $500,000.
14

State Farm has paid Kale Swainston $195,000 and Stephanie

Swainston $54,000. Having recovered less than the $250,000 per person 

and $500,000 per accident limits, the Swainstons have not yet reached the 

limits to which they are entitled by virtue of section 516A.2(3). Therefore, 

subject to proof of the uninsured motorist’s liability and the extent of their 

damages, they are entitled to recover under the American Family policy up to 

the per-person limits of $100,000.8

We conclude the district court erred in holding the UM coverage of the 

American Family policy did not provide any coverage for the plaintiffs’ 

damages simply because the State Farm policy afforded UM benefits with 

higher limits of liability. Therefore, the court erred in granting summary 

judgment to American Family on the plaintiffs’ claim for coverage. For the 

same reason, the court erred in refusing to grant partial summary judgment 

to the plaintiffs. The plaintiffs were entitled to a ruling that the American 

Family policy provided excess UM coverage for the plaintiffs’ damages 

incurred in the accident with the uninsured motorist subject to the plaintiffs’ 

satisfaction of the other applicable requirements of the policy.

IV. Conclusion and Disposition.

American Family’s policy provides UM coverage for the damages 

sustained by the plaintiffs. The district court erred in granting summary 

judgment to American Family and denying partial summary judgment to the 

plaintiffs. Accordingly, we vacate the court of appeals decision, reverse the 

 8Under the default rule of section 516A.2(3), an insured’s recovery will be restricted 

by two sets of limits: the highest applicable limit of all policies providing coverage (here 

$250,000/$500,000) and the limit of the policy under which recovery is sought (here 

$100,000/$300,000). Thus, Kale, who has already been paid $195,000, can recover, at the 

most, $55,000 under the American Family policy, notwithstanding American Family’s perperson limit of $100,000, because his total recovery is limited to the highest applicable limit 

of $250,000. In contrast, Stephanie has only recovered $54,000, leaving her $196,000 

short of the $250,000 highest limit. Nonetheless, her potential recovery under the American 

Family policy is capped at $100,000, the per-person limit of that policy.
15

judgment of the district court, and remand this case for further proceedings 

consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED. DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED.