                 IN THE SUPREME COURT OF IOWA
                              No. 09–1471

                            Filed July 1, 2011


MARK PEAK,

      Appellant,

vs.

ELLIS ADAMS and RACHEL ADAMS,

      Appellees.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Muscatine County,

James E. Kelly, Judge.



      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.



      Stephen T. Fieweger of Katz, Huntoon & Fieweger, P.C., Moline,

Illinois, for appellant.



      Robert T. Park of Snyder, Park & Nelson, P.C., Rock Island, Illinois,

for appellees.
                                     2

WATERMAN, Justice.

      Iowa has a strong public policy favoring settlements. This appeal

decides the enforceability of a “Release of All Claims” that plaintiff, Mark

Peak, signed on the advice of his attorney.      Peak broke his leg while

helping defendants, Ellis and Rachel Adams, move furniture using a

rented U-Haul truck.     The liability insurer for U-Haul paid its policy

limits of $20,000 to Peak and his attorney in exchange for a release that

specifically named Ellis and arguably covered Rachel. When Peak sought

additional compensation from another insurer for the Adamses, it denied

coverage based on the release.     Peak responded that the release was

intended only to release U-Haul and its insurer, not Ellis or Rachel

personally. Peak sued Ellis and Rachel, and the district court granted

their motion for summary judgment, concluding the release, as written,

barred Peak’s claims against both.       The court of appeals reversed,

concluding that fact questions as to the intent of the parties precluded

summary judgment. On further review, we determine the district court

correctly granted summary judgment for Ellis based on the release, while

fact questions preclude summary judgment for Rachel.

      I. Background Facts and Proceedings.

      The summary judgment record establishes the following facts as

undisputed.    Ellis and Rachel Adams are married to each other.        On

February 22, 2008, Peak, age thirty-six, was helping Ellis and Rachel

move furniture into their new home in Muscatine, Iowa. A U-Haul rental

truck was used to transport belongings from the Adams’ old house. Peak

had gone with Ellis and Rachel to pick up the rental truck and waited in

the car while the two of them went into the rental office together. Peak’s

petition alleged:
                                    3
            4. That the defendants jointly and severely [sic] rented
      a moving truck in which to move their furniture from the
      previous residence to the new residence. On February 22,
      2008, the defendants failed to remove accumulated snow in
      their driveway. As a result of their failure to remove the
      accumulated snow, the moving rental truck became stuck.

The defendants’ answer admitted that “Ellis Adams rented a truck for

use in moving to defendants’ new residence and that the truck became

stuck in the snow” and otherwise denied paragraph 4. We assume from

the pleadings that the U-Haul rental agreement was signed by Ellis, but

not Rachel. Peak admitted both Ellis and Rachel were “in a big hurry” to

return the truck that afternoon to avoid being charged a second day for

its use.

      To help extricate the truck stuck on the snowy driveway, Peak

placed a plywood board under a tire. Ellis was behind the wheel with

Rachel nearby. Ellis accelerated, which shot the board into Peak’s leg,

causing severe bone fractures that required surgery.      Peak’s medical

expenses ultimately exceeded $50,000, and he spent several months

convalescing at the Adams’ home.

      In June 2008, Peak hired an attorney, Stephen Fieweger, to

represent him. Fieweger had over twenty years experience practicing law

in Illinois and Iowa. He had handled personal injury claims through trial

for both plaintiffs and defendants, but by 2008 usually represented

plaintiffs in personal injury claims.     Most of his cases had been

concluded through settlements that involved signing releases, including,

at times, partial releases. Fieweger began negotiating on behalf of Peak

with Country Mutual Insurance Company, which provided premises

liability coverage to the Adamses under their homeowner’s policy, as well

as auto liability coverage. Country Mutual’s adjuster informed Fieweger

by letter dated July 8, 2008, that she was “dealing with U-Haul on ‘their
                                     4

right of reimbursement’ letter for their $20,000.00 limit.”        Fieweger

received a letter dated July 21, 2008, from Jessica Brau of Republic

Western Insurance Company, stating that it is the “claims administrator

for U-Haul.” Brau asked Fieweger to provide more information regarding

the accident and told him “our coverage is provided on an excess basis.

At this early stage in our investigation, we are unaware if Mr. Adams had

other insurance at the time of this accident.”

      Brau wrote Fieweger again on October 9, 2008. The letter stated:

      Please be advised that our liability limits in Iowa are $20,000
      for bodily injury. Therefore, we are willing to offer our limits
      of $20,000.00 for Mr. Peak’s claim.
      I have enclosed a release in the amount of $20,000.00.
      Please have Mr. Peak sign and date the enclosed release and
      return it to me via fax or mail along with a completed W-9 for
      your law firm. I will then issue the check to you and
      Mr. Peak.

      The document entitled “RELEASE OF ALL CLAIMS” transmitted in

this letter stated in part:

             The Undersigned Mark Peak, being of lawful age for
      the sole consideration of Twenty Thousand and xx/100
      Dollars ($20,000.00) to the undersigned in hand paid,
      receipt whereof is hereby acknowledged, do/does, . . . hereby
      release, acquit and forever discharge Ellis Adams, U-Haul
      Company of Iowa, Inc., . . . Republic Western Insurance
      Company, its parent and affiliated companies, employees,
      and agents, each of the independent U-Haul dealers, and all
      the employees, agents, principals, servants, successors,
      heirs, executors, administrators of each of those hereby
      released, and all other persons, firms, corporations,
      associations or partnerships and any other persons, firms,
      or corporations involved in the design, manufacture,
      maintenance, ownership and any and all aspects of the
      rental or sale of the U-Haul equipment involved of and from
      any and all claims, actions, causes of action, . . . which the
      undersigned now has or which may hereafter accrue . . .
      resulting or to result from the incident, casualty or event(s)
      which occurred on or about the 22nd day of February, 2008
      at Muscatine, IA or during the investigation or settlement of
      this matter.
                                    5

Fieweger mailed the Republic Western release to Peak and asked Peak to

sign and return it to him. Peak had not graduated from high school and

has difficulty reading. Fieweger did not explain the release to Peak. A

friend showed Peak where to sign the release and would have read it to

Peak if he had asked.    Peak signed and dated the release October 17,

2008, and returned it to Fieweger.      Fieweger signed an “ATTORNEY’S

ACKNOWLEDGEMENT” at the bottom of the one-page release.               His

acknowledgement, also dated October 17, 2008, stated:

      I, s/Stephen T. Fieweger, attorney for s/Mark Peak hereby
      represent and declare that I have fully explained the
      foregoing Release to said persons, and they have
      acknowledged to me that they understand said Release and
      the legal effect thereof, and I have advised them to sign it.
      Furthermore, in consideration of my fee, I agree to abide by
      the confidentiality provision above.

      Fieweger returned the executed release by mail to Brau.         His

transmittal letter dated October 21, 2008, stated, “I am enclosing the

Release of All Claims and W-9 form signed by Mark Peak. Please issue a

$20,000 check payable to ‘Stephen T. Fieweger, attorney for Mark Peak.’

Thank you for your cooperation in bringing this claim to a conclusion.”

      Republic Western forwarded a check dated October 22, 2008, in

the amount of $20,000 payable to “Mark Peak and Stephen T. Fieweger,

his attorney.”    The check stated it was in “FULL AND FINAL

SETTLEMENT OF ANY AND ALL CLAIMS.”             Peak endorsed the check,

which was cashed, and the proceeds were disbursed with Peak receiving

$6000 after deductions for a medical lien and Fieweger’s fee.

      At this point, Fieweger had not disclosed to Republic Western that

he intended to reserve any claim to proceed against Ellis or Rachel

personally or Country Mutual to obtain additional compensation.

Meanwhile, by letter dated October 16, Fieweger informed Country
                                    6

Mutual that Republic Western had tendered its $20,000 policy limit and

that he was “in the process of resolving the claim with that company.”

Fieweger asserted Country Mutual’s auto liability insurance policy

provided coverage for this accident under its “nonowned vehicle”

provision and asked Country Mutual to disclose its policy limits. This

letter was sent the day before Fieweger and Peak signed the Republic

Western release and five days before Fieweger mailed that executed

release back to Brau. It appears Fieweger overlooked the language in the

release naming Ellis Adams as a released party and believed only U-Haul

and Republic Western were discharged.         The consequences of that

oversight came to light in the weeks that followed.

      Country Mutual obtained a copy of the release and denied coverage

on grounds that the release discharged the liability of Ellis and Rachel.

On December 19, 2008—two months after Peak and Fieweger had signed

the October 17 release—Fieweger wrote Brau, stating:

            In September, you tendered to my client a Release and
      payment of $20,000 under your insured’s, U-Haul,
      insurance policy. Unbeknownst to us you put language in
      the Release of All Claims that released Ellis Adams from any
      and all claims.
             As you are aware, Mr. Adams has additional insurance
      coverage with Country Mutual Insurance Company.             I
      understand that someone from your company has forwarded
      a copy of the executed Release to Country Mutual. Country
      Mutual is now denying liability under its own insurance
      policy based on the executed Release. In my negotiations
      and discussions with you of this claim, we only intended to
      release U-Haul and Mr. Adams to the extent of coverage
      under the U-Haul policy of $20,000. At no time did you
      insist that Mr. Adams, individually, be released from any and
      all claims over and above the $20,000 available under this
      policy.
            Therefore, I am sending to you by way of fax and
      regular mail an Amended Release of All Claims executed by
      my client. This only releases Mr. Adams to the extent of his
      coverage of $20,000 under the U-Haul contract. It does not
      release him from any and all claims individually. Please
                                      7
      acknowledge in writing that this was the intent of the parties
      at the time in which we negotiated the settlement. Also
      please acknowledge in writing that the Amended Release of
      All Claims is accepted by Old Republic Insurance Company,
      Republic Western Insurance Company, U-Haul Company of
      Iowa, Amerco, and Nevada Corporation and each of its
      subsidiaries. If you will not acknowledge this in writing, I
      will tender back the $20,000 paid on the claim and will
      simply proceed to file suit against Mr. Adams, Mrs. Adams
      and U-Haul Company.
             Please advise immediately.

      The “amended” release Fieweger sent Brau with this letter put a

line through Ellis’ printed name and added in handwriting “Ellis Adams

is released under his contract with U-Haul Company of Iowa, Inc., to the

extent of his coverage under his contract of $20,000, Ellis Adams is not

individually released for claims against him in Iowa.” Republic Western

refused to accept the amendment. Fieweger never returned any of the

$20,000 settlement proceeds.

      On January 5, 2009, Peak filed a common law negligence action

against Ellis and Rachel Adams in the District Court for Muscatine

County, alleging they were jointly and severally liable for negligence in

their operation of the U-Haul rental truck and their failure to remove

snow from their driveway. The Adamses denied liability in their answer

and raised Peak’s release as an affirmative defense.        Ellis and Rachel

filed a motion for summary judgment. The district court determined that

“[t]he release is unambiguous, and therefore its terms are to be

enforced.”   The district court granted defendants’ motion for summary

judgment and dismissed Peak’s petition.

      Peak appealed, and his appeal was transferred to the court of

appeals.     The   court   of   appeals   reversed,   concluding   that   the

circumstances surrounding the execution of the release raised questions

of fact as to the parties’ intent to release Ellis and Rachel.
                                      8

      We granted defendants’ application for further review.

      II. Standard of Review.

      Our review of a summary judgment is for correction of errors at

law. Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993).

      [W]e ask whether the moving party has demonstrated the
      absence of any genuine issue of material fact and is entitled
      to judgment as a matter of law. The resisting party must set
      forth specific facts showing that a genuine factual issue
      exists. Summary judgment is proper if the only issue is the
      legal consequences flowing from undisputed facts.

Id. (citations omitted). Moreover, a “factual issue is ‘material’ only if ‘the

dispute is over facts that might affect the outcome of the suit.’ ” Phillips

v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001) (quoting Fouts

ex rel. Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999)).               As we

elaborated in Covenant Clinic:

             In ruling on a summary judgment motion, the court
      must look at the facts in a light most favorable to the party
      resisting the motion. The court must also consider on behalf
      of the nonmoving party every legitimate inference that can be
      reasonably deduced from the record.           An inference is
      legitimate if it is “rational, reasonable, and otherwise
      permissible under the governing substantive law.” On the
      other hand, an inference is not legitimate if it is “based upon
      speculation or conjecture.” If reasonable minds may differ
      on the resolution of an issue, a genuine issue of material fact
      exists.

Id. at 717–18 (citations omitted) (quoting Butler v. Hoover Nature Trail,

Inc., 530 N.W.2d 85, 88 (Iowa Ct. App. 1994)).

    III. Did the District Court Correctly Grant Summary
Judgment on Grounds the Release Discharged Peak’s Claims?

      The release Peak signed is a contract, and its enforcement is

governed by principles of contract law.        Huber, 501 N.W.2d at 55.

Although Peak did not read the release, “[i]t is well-settled that failure to

read a contract before signing it will not invalidate the contract.”       Id.
                                            9

Peak had the opportunity to have a friend read the contract to him. His

attorney had the opportunity to review the contract and, indeed, signed

an acknowledgement that he had explained it to Peak. The other party to

the contract, Republic Western, had no information to the contrary.

              Interpretation involves ascertaining the meaning of
       contractual words; construction refers to deciding their legal
       effect. Interpretation is reviewed as a legal issue unless it
       depended at the trial level on extrinsic evidence.
       Construction is always reviewed as a law issue.

Fashion Fabrics of Iowa, Inc. v. Retail Investors Corp., 266 N.W.2d 22, 25

(Iowa 1978).       “In the construction of written contracts, the cardinal

principle is that the intent of the parties must control, and except in

cases of ambiguity, this is determined by what the contract itself says.”

Iowa R. App. P. 6.904(3)(n). In Waechter v. Aluminum Co. of America, we

summarized the law regarding postaccident settlement agreements as

follows:

              “The law favors settlement of controversies.          A
       settlement agreement is essentially contractual in nature.
       The typical settlement resolves uncertain claims and
       defenses, and the settlement obviates the necessity of further
       legal proceedings between the settling parties. We have long
       held that voluntary settlements of legal disputes should be
       encouraged, with the terms of settlements not inordinately
       scrutinized.”

454 N.W.2d 565, 568 (Iowa 1990) (quoting Wright v. Scott, 410 N.W.2d

247, 249 (Iowa 1987) (citations omitted)). 1

       A. Ellis Adams. Looking within the four corners of the release, we

agree with the district court that the operative language by its terms

       1By contrast, preaccident exculpatory clauses and liability waivers are frequently
construed strictly against the party seeking the benefit. See, e.g., Sweeney v. City of
Bettendorf, 762 N.W.2d 873, 879–80 (Iowa 2009) (requiring clear and unequivocal
language to effectively waive liability claims for future acts or omissions of negligence);
Maxim Techs., Inc. v. City of Dubuque, 690 N.W.2d 896, 901–02 (Iowa 2005) (narrowly
construing scope of indemnification agreement for future environmental liability claims
and reviewing authorities).
                                    10

unambiguously discharges Peak’s claims against Ellis Adams.            The

October 17 release states:

            The Undersigned Mark Peak, . . . for the sole
      consideration of Twenty Thousand and xx/100 Dollars
      ($20,000.00) does, . . . hereby release, acquit and forever
      discharge Ellis Adams . . . from any and all claims, . . .
      which the undersigned now has . . . resulting . . . from the
      incident . . . on or about the 22nd day of February, 2008 at
      Muscatine, IA . . . .

Peak cannot show that the release is facially ambiguous as to Ellis

Adams, but contends the surrounding circumstances generate a genuine

issue of material fact as to whether the intent of the parties was to

release only claims against U-Haul and its insurer, while reserving Peak’s

claims against Ellis Adams personally.

      When interpreting contracts, we may look to extrinsic evidence,

including “ ‘the situation and relations of the parties, the subject matter

of the transaction, preliminary negotiations and statements made

therein, usages of trade, and the course of dealing between the parties.’ ”

NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 466 (Iowa

2010) (quoting Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618 (Iowa

1999)). The cardinal rule of contract interpretation is to determine the

intent of the parties at the time they entered into the contract. Id. The

most important evidence of the parties’ intentions at the time of

contracting is the words of the contract. Id. “When the interpretation of

a contract depends on the credibility of extrinsic evidence or on a choice

among reasonable inferences that can be drawn from the extrinsic

evidence, the question of interpretation is determined by the finder of

fact.” Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 436 (Iowa 2008).

      The key is to ascertain the mutual intent of the two parties to the

release—Republic Western and Peak. A contract requires a meeting of
                                    11

the minds.    See Shaer v. Webster Cnty., 644 N.W.2d 327, 338 (Iowa

2002).   The problem with Peak’s position is that none of the extrinsic

evidence raises an inference that Republic Western agreed the release did

not mean what it said. Rather, Peak at most merely shows that, at the

time he signed the release, he had an undisclosed, unilateral intent to

reserve his right to sue Ellis personally to collect from Country Mutual.

Such extrinsic evidence cannot alter the legal effect of the unambiguous

contract language discharging Ellis from liability.

      In Waechter, we reiterated that, “[w]hen we do interpret settlement

agreements, our primary concern is to ascertain the intention of the

parties.” 454 N.W.2d at 568. Evidence of the parties’ mutual intent is

what matters:

             In searching for that intention, we look to what the
      parties did and said, rather than to some secret, undisclosed
      intention they may have had in mind, or which occurred to
      them later. In addition we are guided by another sound
      principle that has particular application to settlements: in
      the absence of an express reservation of rights, a settlement
      agreement disposes of all claims between the parties arising
      out of the event to which the agreement related.

Id. at 568–69 (citation omitted).   It is undisputed that Fieweger never

disclosed to Republic Western any intent to reserve Peak’s claim against

Ellis or Rachel Adams personally before the release was executed.

      The context of Fieweger’s negotiations with Republic Western does

not help Peak. Under Iowa law, Peak’s only cause of action was against

Ellis or Rachel Adams personally. Peak never claimed the U-Haul truck

was defective.   Peak had no right to sue U-Haul because the vehicle

owner liability statute does not impose liability on rental companies.

Iowa Code § 321.493(1)(a) (2009) (“[I]f the vehicle is leased, ‘owner’ means

the person to whom the vehicle is leased, not the [titleholder].”). Nor did

Peak have a right to sue Republic Western directly.        See Iowa Code
                                    12

§ 516.1 (allowing direct action against liability insurer only after

obtaining a judgment against the insured that remains unsatisfied); see

also O’Kelley v. Lochner, 259 Iowa 710, 717–18, 145 N.W.2d 626, 630–31

(1966) (direct action against liability insurer presupposes an unsatisfied

judgment against its insured).   From Republic Western’s standpoint, a

purpose of the settlement was to extinguish the liability of its insured,

Ellis Adams, the U-Haul customer, who it specifically named in the

release.

      Republic Western paid its limits promptly because Peak’s medical

expenses of just over $50,000 were roughly two and half times the policy

limits of $20,000. The size of the settlement did not signal a mistake as

to the scope of the release because liability was disputed and a jury

could have found defendants were not negligent or that Peak was more

than fifty percent at fault for his accident, preventing any recovery. U-

Haul itself had no liability exposure to Peak; nor did Republic Western

itself have liability unless and until Peak obtained a judgment against its

insured, Adams.     Under these circumstances, it would make little

economic sense for Republic Western to pay its full policy limits without

obtaining a release of Peak’s claim against Adams.      Republic Western

never told Fieweger it was only buying peace for U-Haul and itself, not

the rental customer involved in the accident.

      Peak’s attempt to unilaterally “amend” that release two months

later is ineffective and cannot show a mutual intent shared by Republic

Western at the time it paid its limits. Iowa law permits reformation of a

written agreement that fails to reflect the “true agreement” between the

parties. See Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621,

636 (Iowa 1996) (quoting Kufer v. Carson, 230 N.W.2d 500, 504 (Iowa

1975)). Reformation requires
                                     13
      a definite intention or agreement on which the minds of the
      parties had met must have preexisted the instrument in
      question. There can be no reformation unless there is a
      preliminary or prior agreement, either written or verbal,
      between the parties, furnishing the basis for rectification or
      to which the instrument can be conformed.

Id. (quoting 66 Am. Jur. 2d Reformation of Instruments § 4, at 529

(1973)). Here, Peak is not entitled to reform the agreement because there

is no evidence that Republic Western truly intended to pay its limits

without a release of Ellis Adams personally.

      The same failure of proof precludes relief under a theory of mutual

mistake—the mistake here was unilateral on the part of Peak and his

counsel. Iowa law permits a party to avoid a release only upon proof that

both parties were mistaken about an essential fact.               Pathology

Consultants v. Gratton, 343 N.W.2d 428, 437 (Iowa 1984); see also State

ex rel. Palmer v. Unisys Corp., 637 N.W.2d 142, 150 (Iowa 2001) (noting a

unilateral    mistake   does   not   avoid   the   contract   absent   fraud,

misrepresentation, or other misconduct); Wright, 410 N.W.2d at 249–50

(requiring mutual mistake and finding the plaintiffs’ “confusion after the

settlement was made about how it might affect their claims against other

parties was insufficient as a matter of law to vitiate the settlement

agreement”). There is no evidence Republic Western misled Fieweger.

      To allow a party to avoid a signed release based on a unilateral

mistake would undermine the finality of settlements. We decline to do

so. The district court correctly granted defendants’ motion for summary

judgment as to Ellis Adams.

      B. Rachel Adams. We next determine whether Rachel Adams was

entitled to summary judgment.        She is not identified by name in the

release.     The release, however, expressly discharges the liability of

persons who are “agents [or] principals . . . of those hereby released” and
                                     14

persons “involved in . . . any and all aspects of the rental of the U-Haul

equipment.” Peak protests that he did not intend to release Rachel. Of

course, he asserts he did not intend to release Ellis Adams either, and

his failure to read the release does not avoid its effect, as we have noted

earlier.

       Whether the release sufficiently identified Rachel by description is

governed by the Iowa Comparative Fault Act, Iowa Code section 668.7,

which provides “[a] release . . . entered into by a claimant and a person

liable discharges that person from all liability . . . but it does not

discharge any other persons liable upon the same claim unless it so

provides.”     (Emphasis added.)      We have previously construed the

language “unless it so provides” to require the release to “include some

specific identification of the tortfeasors to be released in order for them to

be discharged.”    Aid Ins. Co. v. Davis Cnty., 426 N.W.2d 631, 632–33

(Iowa 1988). We noted that,

       [w]hile the easier course would require naming these parties,
       we would not require such a rigid rule if they are otherwise
       sufficiently indentified in a manner that the parties to the
       release would know who was to be benefitted.             Such
       designations might include classes as “employees,”
       “partners” or “officers.” While this rule may at times require
       evidentiary hearings to determine the members of the class,
       it provides needed flexibility. Under this rule, a general
       designation such as “any other person, firm or corporation”
       would not sufficiently identify the tortfeasor to be
       discharged.

Id. at 633–34; see also Britt-Tech Corp. v. Am. Magnetics Corp., 463

N.W.2d 26, 29 (Iowa 1990) (same). Thus, Iowa law permits the release to

discharge Rachel’s liability without naming her so long as she is

“sufficiently identified” so that the parties to the release would know she

is included.    Something more than saying “any other person, firm or

corporation” is required. Aid Ins. Co., 426 N.W.2d at 634. Accordingly,
                                          15

the “catch all” reference in the release to “all other persons” is ineffective

to discharge Rachel’s liability. The fighting issue is whether Rachel is

covered by the more descriptive language in the release that purports to

discharge the liability of (1) “agents [or] principals . . . of those hereby

released,” or (2) “all other persons . . . involved in . . . any and all aspects

of the rental . . . of the U-Haul equipment.”               Defendants moved for

summary judgment in Rachel’s favor on both grounds; the district court

granted her summary judgment on the agency theory. We address each

argument in turn.

       1. Did the defense establish an agency relationship between Ellis

and Rachel as a matter of law?            The district court noted a “potential

ambiguity” as to whether Rachel is released “as principal for her

husband Ellis Adams.” The district court relied on Peak’s allegation Ellis

and Rachel jointly rented the truck to conclude Rachel was covered by

the release.    We disagree that the issue can be resolved by summary

judgment.

       Agency     is   generally   a   question     of   fact. 2    See Wilkins v.

Marshalltown Med. & Surgical Ctr., 758 N.W.2d 232, 236 (Iowa 2008)

(noting existence of agency is question of fact); see also Spencer Concrete
Prods. Co. v. City of Spencer, 254 Iowa 87, 93, 116 N.W.2d 455, 459

       2“The   party asserting an agency relationship must prove its existence by a
preponderance of the evidence.” Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 100
(Iowa 2011). “Agency . . . results from (1) manifestation of consent by one person, the
principal, that another, the agent, shall act on the former’s behalf and subject to the
former’s control and, (2) consent by the latter to so act.” Pillsbury Co. v. Ward, 250
N.W.2d 35, 38 (Iowa 1977). To establish agency, the agent must have actual or
apparent authority to act on the principal’s behalf. Fed. Land Bank of Omaha v. Union
Bank & Trust Co. of Ottumwa, 228 Iowa 205, 209–10, 290 N.W. 512, 514–15 (1940).
The Restatement (Third) of Agency states agency as arising “when one person (a
‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on
the principal’s behalf and subject to the principal’s control, and the agent manifests
assent or otherwise consents so to act.” Restatement (Third) of Agency § 1.01, at 17
(2006).
                                      16

(1962) (“It is also settled that agency is generally a fact question . . . .”).

Rachel’s marriage to Ellis is a factor to consider in determining if an

agency relationship existed regarding the U-Haul rental, but it is not

determinative. See 41 C.J.S. Husband & Wife § 87, at 464–65 (2006).

      It is undisputed that Rachel accompanied Ellis when they picked

up the U-Haul truck and joined him in the rental office. They used the

U-Haul truck together on their joint marital endeavor to move shared

belongings from their old residence to their new home.          Peak testified

that both Rachel and Ellis were in “a big hurry” to return the rental truck

to avoid another day’s rental charge.         However, defendants’ answer

denied the allegation that Ellis and Rachel “jointly” rented the U-Haul.

The pleadings thus left in dispute Peak’s claim that Rachel “jointly”

rented the U-Haul.      There is no evidence Rachel signed the U-Haul

agreement with Ellis.

      On summary judgment, the court must view the facts in the light

most favorable to the resisting party who is allowed every legitimate

inference that can be reasonably deduced from the record.           Covenant

Clinic, 625 N.W.2d at 717–18. We conclude there is a genuine issue of

material fact whether Ellis and Rachel were in an agency relationship

within the meaning of the release. The district court erred in granting

summary judgment on the basis of an agency relationship between Ellis

and Rachel.    The agency issue may be decided by the trier of fact on

remand.

      2. Did the defense establish as a matter of law Rachel was

“involved in . . . any and all aspects of the rental” of the U-Haul?

Alternatively, defendants contend that Rachel is released because she is

a person “involved in . . . any and all aspects of the rental or sale of the

U-Haul equipment.”
                                    17

      We first examine whether this release language applies only to the

U-Haul side of the rental counter or may include customers. Neither side

offered extrinsic evidence on the meaning of this language. This issue

therefore is for the court to decide. Fashion Fabrics, 266 N.W.2d at 25.

      Guidance is provided by a canon of construction, noscitur a sociis,

which “summarizes the rule of both language and law that the meanings

of particular words may be indicated or controlled by associated words.”

11 Richard A. Lord, Williston on Contracts § 32:6, at 432 (4th ed. 1999)

[hereinafter Williston]; see also Fleur de Lis Motor Inns, Inc. v. Bair, 301

N.W.2d 685, 690 (Iowa 1981) (“ ‘The rule of noscitur a sociis and the rule

of ejusdem generis produce identical results in most situations.’ ”

(quoting 2A Sutherland, Statutes & Statutory Construction §§ 47.16,

47.17 (4th ed. 1973)).    “ ‘The maxim noscitur a sociis, that a word is

known by the company it keeps, while not an inescapable rule, is often

wisely applied where a word is capable of many meanings.’ ” Williston,

§ 32:6, at 433–34 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303,

307, 81 S. Ct. 1579, 1582, 6 L. Ed. 2d 859, 863 (1961)).

      The phrase at issue, “any and all aspects of the rental,” follows a

list of U-Haul-related parties and a series of terms that, until “rental or

sale” refer to persons exclusively on the U-Haul side of the counter: “all

other persons . . . involved in the design, manufacture, maintenance,

ownership, and any and all aspects of the rental or sale of the U-Haul

equipment . . . .”   U-Haul’s customers would not be involved in the

“design, manufacture, maintenance, or ownership” of the equipment.

Placement of the term “rental” after a series of terms applicable only to

persons on the U-Haul side of the counter suggests “rental” belongs in

the same class and does not refer to customers.
                                     18

      Perhaps the best evidence of the parties’ intent is the fact the

release names Ellis Adams, but not his wife, Rachel.        Another rule of

construction bearing a Latin name comes into play: expressio unius est

exclusio alterius—“[T]he expression of one thing of a class implies the

exclusion of others not expressed.” Maytag Co. v. Alward, 253 Iowa 455,

460, 112 N.W.2d 654, 656 (1962) (noting this rule applies in the

construction of contracts as well as statutes).       Under this rule, the

express mention of Ellis Adams by name, with Rachel omitted, raises an

inference that the drafter did not intend to discharge Rachel’s liability.

      We are also troubled by the vague nature of the language “involved

in . . . any and all aspects of the rental.”    The scope of this class of

persons is unclear. Presumably, the persons signing the rental contract

are included. Perhaps spouses accompanying the renter who share in

the use of the equipment, such as Rachel, would be included as well, but

once the drafter named Ellis without naming Rachel, it is ambiguous at

best whether Rachel’s liability is discharged.      We generally construe

ambiguous boilerplate language against the drafter. See Village Supply

Co. v. Iowa Fund, Inc., 312 N.W.2d 551, 555 (Iowa 1981) (citing Rector v.

Alcorn, 241 N.W.2d 196, 202 (Iowa 1976) (resolving doubts concerning

the meaning of the agreement against its drafter); see also Huber, 501

N.W.2d at 57–58 (reversing summary judgment for insurance broker who

was not named in the release and rejecting argument that “the release

should apply to all parties associated with the race”).       U-Haul or its

insurer as the drafter of the release was in a position to avoid any doubt

whether it discharged Rachel’s liability, simply by naming her along with

Ellis as a released party.

      Defendants are on the losing side of these rules of construction.

We determine as a matter of law an unnamed person on the customer
                                   19

side of the rental such as Rachel is not released by this language.

Accordingly, we reject Rachel’s alternative ground for summary judgment

based upon her involvement in the rental.

      IV. Summary and Disposition.

      We conclude the district court correctly granted summary

judgment in favor of Ellis Adams, and we affirm the judgment in his

favor. The district court, however, erred in granting summary judgment

in favor of Rachel Adams. A genuine issue of material fact exists whether

the release discharged Rachel Adams as an agent or principal of Ellis

Adams. Accordingly, we reverse the district court’s summary judgment

as to Rachel Adams and remand for further proceedings consistent with

this opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.

      Costs of the appeal shall be taxed equally to the plaintiff and the

defendants.

      All justices concur except Mansfield, J., who takes no part.
