IN THE COURT OF APPEALS OF IOWA

No. 16-0170

Filed February 8, 2017

SALEM UNITED METHODIST CHURCH OF CEDAR RAPIDS, IOWA,

Plaintiff-Appellant,

vs.

CHURCH MUTUAL INSURANCE COMPANY,

Defendant-Appellee.

________________________________________________________________

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

Judge.

Insured appeals the district court’s entry of a judgment notwithstanding the 

verdict in a breach of contract case. AFFIRMED.

William H. Roemerman of Elderkin & Pirnie, P.L.C., Cedar Rapids, for 

appellant.

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

appellee.

Heard by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

This insurance coverage dispute arises out of damage to Salem United 

Methodist Church (hereinafter “Salem”) occurring during the Cedar Rapids flood 

of 2008. At issue is whether damage to the church basement was the result of

sewage backup and/or flood and consequently whether the loss was covered or 

excluded. A jury returned a verdict in favor of Salem in the amount of 

$705,765.07. On appeal, this court vacated the judgment and remanded the 

matter for new trial. See Salem United Methodist Church v. Church Mut. Ins. 

Co., No. 13-2086, 2015 WL 1546431, at *6 (Iowa Ct. App. Apr. 8, 2015). This 

court concluded the insurance policy excluded coverage for “damages that are 

concurrently caused by a covered cause—such as a sewer backup—and an 

uncovered cause—such as flooding.” Id. at *3. This court further concluded the 

district court erred in instructing the jury to the contrary. See id. This court 

remanded the case for a new trial. See id. at *6. Following remand, a jury again 

returned a verdict in favor of Salem, this time in the amount of $717,000. Church 

Mutual moved for judgment notwithstanding the verdict, arguing it was 

undisputed the cause of loss was the flood and consequently the loss was 

excluded. The district court granted the motion, and Salem timely filed this 

appeal.

I.

“We review a district court’s grant of a judgment notwithstanding the 

verdict for correction of errors at law.” Wieseler v. Sisters of Mercy Health Corp., 

540 N.W.2d 445, 448 (Iowa 1995); see Iowa R. App. P. 6.907. The court views 
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the evidence “in the light most favorable to the party against whom the motion is 

directed.” Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 541 (Iowa 1997). 

Simply put, we ask, was there sufficient evidence to generate a jury 

question? These are the same principles that the district court is 

bound to follow on a motion for directed verdict.

Under this view of the evidence, if there is substantial 

evidence to support the claim or defense, the motion for directed 

verdict or judgment notwithstanding the verdict should be denied. 

Conversely, without such evidence, a directed verdict or judgment 

notwithstanding the verdict is appropriate. Evidence is substantial 

when a reasonable mind would accept it as adequate to reach a 

conclusion.

Johnson v. Dodgen, 451 N.W.2d 168, 171 (citations omitted).

II.

We begin our analysis with the burden of proof. When an insured seeks 

to enforce a provision of an insurance policy, “the burden of proof initially is on 

the insured to prove that both the property and the peril were covered by the 

terms of the policy.” Hometown Plumbing & Heating Co. v. Secura Ins. Co., No. 

11-0309, 2012 WL 1245755, at *4 (Iowa Ct. App. Apr. 11, 2012); 17A Couch on 

Insurance § 254:11 (2016) (“Generally speaking, the insured bears the burden of 

proving all elements of a prima facie case including the existence of a policy, 

payment of applicable premiums, compliance with policy conditions, the loss as 

within policy coverage, and the insurer’s refusal to make payment when required 

to do so by the terms of the policy.”). Once the insured has established a prima 

facie case, “[t]he burden of proving that coverage is excluded by an exclusion or 

exception in the policy rests upon the insurer.” W. Bend Mut. Ins. Co. v. Iowa 

Iron Works, Inc., 503 N.W.2d 596, 598 (Iowa 1993); see Long v. Glidden Mut. 

Ins. Ass’n, 215 N.W.2d 271, 274 (Iowa 1974) (“[A]n insurer has the burden to 
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prove the applicability of a policy exclusion. The insured is not required to 

negate the exclusion in order to present a prima facie case.” (citations omitted)); 

17A Couch on Insurance § 254:12 (“Until a prima facie case of coverage is 

shown, the insurer has no burden to prove a policy exclusion. The insurer bears 

the burden of proving the applicability of policy exclusions and limitations or other 

types of affirmative defenses, in order to avoid an adverse judgment after the 

insured has sustained its burden and made its prima facie case.”). In both cases, 

the standard of proof is preponderance of the evidence, absent any higher 

burden required by statute. See Hometown Plumbing & Heating Co., 2012 WL 

1245755, at *4. 

We turn to the language of the policy at issue. Here, under the header 

“EXCLUSIONS,” the policy stated in part:

1. 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. . . .

g. Water.

(1) Flood, surface water, waves, tides, tidal waves, overflow of any 

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

(2) Mudslide or mudflow,

(3) Water which backs up through sewers or drains except as 

provided under F. Additional Coverage – Back Up Through Sewers 

and Drains.

(4) Water under the ground surface pressing on or flowing or 

seeping through:

(a) Foundations, walls, floors, or paved surfaces;

(b) Basements, whether paved or not; or

(c) Doors, windows, or other openings.

The policy did provide additional coverage:

F. 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 
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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 openings 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.

This ADDITIONAL COVERAGE – BACK UP THROUGH 

SEWERS OR DRAINS will not increase the Limits of Insurance 

provided in this Coverage Part.

The law regarding the interpretation and construction of insurance policies 

is well established and need not be repeated herein. See Amish Connection, 

Inc. v. State Farm Fire & Cas. Co., 861 N.W.2d 230, 236 (Iowa 2015). In our 

prior decision related to this case, this court determined the flood exclusion 

language was clear and unambiguous:

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.” 

Salem United, 2015 WL 1546431, at *3; see also United Fire & Cas. Co. v. Iowa 

Dist. Ct. for Sioux Cty., 612 N.W.2d 101, 103 (Iowa 2000) (discussing the law-ofthe-case doctrine). The jury was correctly instructed in accord with our prior 

decision. 

We agree with the district court that there was no question of fact for the 

jury because it was undisputed the flood was a direct or indirect cause of 
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damage to the church basement. A member of the church’s building committee 

testified the sewer backup was caused by the flood:

Q. So, as I understand it, Salem’s position is that Salem 

suffered damage from the backup of water or sewage through 

sewers or drains?

A. Correct.

Q. And the backup was caused by an event away from the 

premises?

A. Yes.

Q. And would you agree that the event away from the 

premises that caused the backup would be the flood of June 11 and 

12, 2008?

A. From hydraulic pressure, yes. Yes. Correct.

Salem called Richard Ransom, an engineer, to serve as an expert 

witness. He testified as follows: 

What’s going here is that as this Time Check area is being 

inundated, because there’s houses up there, the water is entering 

those houses plus it’s flooding the streets, so that water is getting 

into the sanitary sewer system, both through the houses that it’s 

flooding, as well as—we’ve always known there’s slight leaks in the 

sewer systems from manhole covers and those things, so that as 

that area became flooded, then it began to get into the sanitary 

sewer system with more water than the system could actually 

handle.

And so that starts to flow downstream in that system and 

begins to—what we describe as surcharge the system, so that 

there’s more water in the system than it can actually handle by 

gravity and it begins to create pressure inside the pipes.

Ransom stated normally, where there are not flood conditions, the sewage pipes 

will not run full and water will flow downstream. But under the conditions of June 

11 and 12, the floodwaters altered the way the system was supposed to operate. 

Ransom was asked on cross examination about the flood’s contribution to the 

back up on Salem’s property:

Q. Wouldn’t you agree that if the Cedar River had not overflowed 

its banks on the 11th of June, 2008, there would not have been a 

backup into Salem’s basement?
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A. I would agree with that.

Q. And the flood was the one and only cause of the backup, 

correct?

A. To the best of my knowledge, yes.

Finally, Mike Kuntz, a utilities and environmental manager for the city of 

Cedar Rapids, testified on behalf of Church Mutual. He testified that backflow in 

the pipes was caused by floodwaters entering the sanitary sewer system.

Notwithstanding the state of the evidence, Salem argues judgment 

notwithstanding the verdict was not proper because causation is always a

question of fact for the jury. While Salem correctly states causation, generally, is 

a question of fact for the jury, this presupposes there is evidence from which the 

jury could make a particular finding of fact. Here, there was no evidence from 

which the jury could infer the loss was caused by something other than the flood. 

The policy explicitly excluded flood damage from coverage. While the policy did 

provide additional coverage for sewer backup, such coverage was not applicable 

where the sewer backup “occur[ed] as a result of, either before or after, the 

excluded flood.” Here, it was undisputed the flood either directly caused the 

damage to the basement or indirectly caused the damage by causing the sewer 

to backup. No reasonable mind could reach a contrary conclusion. 

Salem also urges this court to adopt a per se rule and hold judgment 

notwithstanding the verdict should never be granted where causation is at issue 

and the jury reached a verdict adverse to the party assigned the burden of proof 

on the issue of causation. Salem argues “a jury’s negative finding on a question 

of cause is conclusive.” (Emphasis in original.) Salem reasons judgment 
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notwithstanding the verdict is not proper because the jury could have simply 

determined the party failed to meet its evidentiary burden. 

We reject Salem’s request to adopt such a rule. First, the cases cited by 

Salem do not stand for the proposition that causation should always and 

automatically be left to the jury. In the cited cases, the court was still required to 

analyze the evidence to determine if substantial evidence existed so as to create 

a jury question on the issue of causation. See Johnson v. Junkmann, 395 

N.W.2d 862, 864–65 (Iowa 1986) (“We conclude substantial evidence exists from 

which the jury reasonably could have found Junkmann’s failure to keep her 

automobile and its wheels parallel to the center line constituted fault under the 

circumstances existing at the time of the accident.”); Pedersen v. Kuhr, 201 

N.W.2d 711, 713 (Iowa 1972); Ackerman v. James, 200 N.W.2d 818, 826 (Iowa 

1972). Second, the relevant standard is set forth by rule. Iowa Rule of Civil 

Procedure 1.1003 sets forth the relevant standard governing the motion for 

judgment notwithstanding the verdict:

On motion, any party may have judgment in that party’s 

favor despite an adverse verdict, or the jury’s failure to return any 

verdict under any of the following circumstances:

(1) If the pleadings of the adverse party fail to allege some 

material fact necessary to constitute a complete claim or defense 

and the motion clearly specifies such failure.

(2) If the movant was entitled to a directed verdict at the 

close of all the evidence, and moved therefor, and the jury did not 

return such verdict, the court may then either grant a new trial or 

enter judgment as though it had directed a verdict for the movant.

The rule provides the motion should be granted if the movant was entitled to 

directed verdict. The rule does not exempt from its operation any particular issue 

or issues. The rule also does not distinguish between movants based on 
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whether the movant was assigned the burden of proof. We decline to graft these 

exemptions and distinctions onto the rule. 

The purpose of judgment notwithstanding the verdict “is to allow the 

district court an opportunity to correct any error in failing to direct a verdict.” 

Easton v. Howard, 751 N.W.2d 1, 4 (Iowa 2008). Regardless of who has the 

burden of proof, the relevant inquiry is “was there sufficient evidence to generate 

a jury question?” Konicek v. Loomis Bros., Inc., 457 N.W.2d 614, 617 (Iowa

1990); see Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846 

(Iowa 2010) (“In reviewing rulings on a motion for judgment notwithstanding the 

verdict, we simply ask whether a fact question was generated.”); McCloy v. 

Leisure Lake, Inc., No. 01-1908, 2003 WL 289117, at *1 (Iowa Ct. App. Feb. 12, 

2003) (“In considering both motions [for directed verdict and for judgment 

notwithstanding the verdict], we inquire whether substantial evidence exists to 

support the plaintiff’s claim, justifying submission of the case to the jury.”); 

Graves v. O’Hara, 576 N.W.2d 625, 628 (Iowa Ct. App. 1998) (“A directed verdict 

is appropriate in cases where each element of the claim is not supported by 

substantial evidence.”). While it is “true even when the facts are not in dispute or 

contradicted, if reasonable minds might draw different inferences from them, a 

jury question is engendered,” that is not the situation here. Ackerman, 200 

N.W.2d at 824. The evidence is “so palpable, flagrant and manifest that 

reasonable minds may fairly reach no other conclusion” than the floodwaters 

were a direct or indirect cause of all of Salem’s claimed damages. Id.
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III.

For the above-stated reasons, we affirm the judgment of the district court.

AFFIRMED.