              IN THE SUPREME COURT OF IOWA
                              No. 08–1890

                         Filed October 29, 2010


CASEY McGILL; GINGER L. McGILL; ASHLEA D. McGILL; and CASEY
McGILL, As Parent and Next Best Friend of AMANDA R. McGILL,
ALICIA C. McGILL, and ALLISON C. McGILL, Minors,

      Appellees,

vs.

BEN FISH, THOMAS VINE, MARK NEWTON, ROBERT SELBY, and
STEVEN SHAFFER,

      Appellants.



      Appeal from the Iowa District Court for Johnson County,

Denver D. Dillard, Judge.



      Interlocutory appeal from the district court’s denial of a motion to

dismiss for lack of subject matter jurisdiction.       REVERSED AND

REMANDED.



      Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant

Attorney General, for appellants.



      Donald G. Beattie and Ryan T. Beattie of Beattie Law Firm, P.C.,

Des Moines, for appellees.
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CADY, Justice.

       In this appeal, we must decide whether a personal injury claim

based on gross negligence brought by a state employee against

coemployees is a common law action subject to the administrative

provisions of the Iowa Tort Claims Act (ITCA) or whether it is an action

under Iowa Code section 85.20 (2009) 1 not subject to the requirements of

the Act.     The district court found the plaintiffs were not required to

comply with the exhaustion requirements of the ITCA and denied the

motion to dismiss filed by the State for failing to exhaust administrative

remedies. The State sought, and we granted, interlocutory review. On

our review, we reverse the decision of the district court and remand the

case for dismissal of the claims against the state employees.

       I. Background Facts and Proceedings.

       Casey McGill was employed by the water works department of the

University of Iowa in 2006. He filed a lawsuit in the Iowa district court

for personal injuries allegedly suffered while performing maintenance at

the physical plant on August 31, 2006.               His wife and minor children

joined him as plaintiffs in the lawsuit. McGill and his family asserted a

negligence claim against the manufacturer of the treatment system at the
plant, as well as other known and unknown defendants associated with

the treatment process of the plant. The McGills also included a gross

negligence claim against five coemployees of the University of Iowa. The

McGills claimed the coemployees were supervisors who failed to properly




       1Although   the injury at issue in this case occurred in 2006, we will refer to the
2009 version of the Iowa Code, unless otherwise noted, for ease of reference because it
contains subsection designations in the relevant statutes that were not present in the
2005 Code. No other pertinent amendments to any of the statutes relevant to the
disposition of this case were made.
                                        3

train McGill on working with hazardous materials and to provide him

with protective clothing and equipment.

      The State filed a motion to dismiss the claims against the five

coemployees.      It   asserted   the   petition   against   the   coemployees

constituted a claim against the State under the ITCA. Consequently, the

State argued the district court was without subject matter jurisdiction

over the gross negligence claim against the coemployees because the

McGills failed to exhaust the administrative procedures under the Act by

filing a claim with the State prior to filing their claim for gross negligence

in district court against the five state employees.

      The McGills responded to the motion by arguing that their

coemployee gross negligence claim was expressly authorized by Iowa

Code section 85.20(2) and constituted an exception to the requirements

of the ITCA as a claim brought by an employee under the workers’

compensation law. See Iowa Code § 669.14(5). They also argued that a

requirement that a state employee choosing to sue a coemployee must

first file an administrative claim with the state pursuant to the tort

claims act would violate the Equal Protection Clause of the United States

and Iowa Constitutions. The McGills did not dispute the absence of an

administrative claim filed with the State. They also did not contest the

authority of the State to file the motion to dismiss on the ground that the

district court lacked jurisdiction.

      The district court denied the motion to dismiss. It found the action

for gross negligence against the five state employees constituted a claim

under Iowa Code section 85.20 and was not subject to the provisions of

the ITCA. The State sought, and we granted, interlocutory review.
                                             4

       II. Standard of Review.

       The grant or denial of a motion to dismiss is reviewed for errors at

law. Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165 (Iowa

2009). We accept as true the facts alleged in the petition and typically do

not consider facts contained in either the motion to dismiss or any of its

accompanying attachments. 2               Id.    To the extent that we review

constitutional claims, our review is de novo. State v. Taeger, 781 N.W.2d

560, 564 (Iowa 2010).

       III. Iowa Tort Claims Act.

       Generally, the State may be sued for damage caused by the

negligent or wrongful acts or omissions of state employees while acting

within the scope of employment to the same extent that a private person

may be sued. Iowa Code § 669.2(3)(a); see also Magers-Fionof v. State,

555 N.W.2d 672, 674 (Iowa 1996) (recognizing the ITCA permits an

injured party to recover damages for the negligent or wrongful acts of

state employees “ ‘where the state, if a private person, would be liable to

the claimant for such damage’ ” (quoting Iowa Code § 669.2(3)(a) (1995))).


       2The   petition filed by the McGills in district court generally alleged the district
court had subject matter jurisdiction over the claims. Yet, averments in pleadings for
the purposes of a motion to dismiss are conclusive only as to well-pleaded facts.
Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 473 (Iowa
2004). Thus, the State in this case was permitted to challenge subject matter
jurisdiction by way of a motion to dismiss despite the general allegations of jurisdiction
in the petition. See Iowa Ct. R. 1.421(1)(a). Additionally, the State was permitted to
include its affidavit in support of the motion to dismiss. Citizens, 686 N.W.2d at 473.
The McGills did not challenge this affidavit, but claimed the district court had subject
matter jurisdiction because the lawsuit was excepted from the requirements of the
ITCA. Accordingly, the motion to dismiss and resistance to the motion properly framed
the issue of subject matter jurisdiction. See id. (recognizing a motion to dismiss for lack
of jurisdiction can consider concessions made in response to the motion). Additionally,
the motion and resistance necessarily conceded that the coemployees acted within the
scope of employment with the state. A claim against an employee of the state falls
under the ITCA only if the injury is caused by the negligent or wrongful acts or
omissions of a state employee while within the scope of employment. Iowa Code
§ 669.2(3)(b).
                                            5

The state employees who engage in the negligent or wrongful conduct

that gives rise to the lawsuit may also be personally sued.                      See id.

§ 669.2(3)(b) (defining claims against coemployees). Yet, as long as the

employee was acting within the scope of employment at the time of the

incident at the center of the lawsuit, the suit is deemed to be an action

against the state. 3 Id. § 669.5(2). Once a lawsuit against a coemployee

is deemed to be an action against the state under the ITCA, the state is

substituted as a defendant in place of the coemployee in the event the

state was not already a named defendant. Id. Furthermore, the state is

normally required to indemnify the employee against any claim.                         Id.

§ 669.21.

       Lawsuits against the state were first authorized in 1965 when the

legislature waived its sovereign immunity by enacting the Iowa Tort

Claims Act. See 1965 Iowa Acts, ch. 79 (codified at Iowa Code ch. 25A

(1966)). The Act gives the district court exclusive jurisdiction over such

lawsuits. Iowa Code § 669.4. As a condition to waiving its immunity, the

legislature established an administrative procedure for litigants to follow

prior to commencing an action in the district court.                       Id. § 669.5.

Although some portions of this procedure have been amended since the
date of its enactment, the Act has always required a claim to be filed with

an agency or department of the state before the lawsuit could be filed in

district court. See Iowa Code §§ 25A.3, .5 (1966); id. § 669.5 (2009). The

ITCA now requires a claim first be filed with the director of the

        3A lawsuit commenced against a state employee who is alleged to have been

acting within the scope of employment at the time of the incident giving rise to the claim
is subsequently deemed to be an action against the state upon the occurrence of one of
two events. The first event is when the attorney general certifies that the defendant was
an employee acting in the scope of employment. Iowa Code § 669.5(2)(a). The second
event occurs if the attorney general refuses to file a certification. Id. § 669.5(2)(b). If
this occurs, the defendant may petition the court to make a finding that the defendant
was a state employee acting within the scope of employment. Id.
                                      6

department of management.        Id. § 669.3(2).   Among other things, the

administrative process allows the state attorney general an opportunity

to dispose of the claim through payment, settlement, or other

disposition. Id. § 669.3(1). A lawsuit may not be filed in district court

before a final disposition by the attorney general, unless the attorney

general fails to dispose of the claim within six months and the claimant

provides notice to the attorney general of the intent to withdraw the

claim from further consideration. Id. § 669.5(1).

      The procedural requirements of the ITCA are jurisdictional.

Swanger v. State, 445 N.W.2d 344, 349–50 (Iowa 1989).            The district

court does not acquire subject matter jurisdiction over a claim unless the

administrative procedures have been exhausted. Id. A claim must be

dismissed if the district court has no subject matter jurisdiction. Feltes

v. State, 385 N.W.2d 544, 549 (Iowa 1986).

      The claim brought by the McGills against the five state employees

falls within the definition of a “claim” under the ITCA. See Iowa Code

§ 669.2(3)(b) (including in the definition of a claim against the state “[a]ny

claim against an employee of the state for money . . . on account of

personal injury . . . caused by the negligent or wrongful act or omission

[of the state employee] . . . while acting within the scope of . . .

employment”); see also Unertl v. Bezanson, 414 N.W.2d 321, 326–27

(Iowa 1987) (recognizing gross negligence is not a distinct cause of action

but a measure of conduct in a cause of action for negligence). Thus, the

McGills’ claim is subject to the administrative exhaustion requirements

of the ITCA unless it falls under an enumerated exception within the Act.

      The ITCA provides numerous exceptions from its provisions. Iowa

Code § 669.14. One type of claim excepted from the provisions of the Act

is: “Any claim by an employee of the state which is covered by the Iowa
                                   7

workers’ compensation law or the Iowa occupational disease law, chapter

85A.” Id. § 669.14(5).

      Without directly interpreting the operative language of section

669.14(5), the district court took the position that coemployee gross

negligence claims are excepted from the ITCA as claims under the

workers’ compensation laws.     The McGills argue this same point on

appeal.   They claim gross negligence claims fall under the workers’

compensation law because section 85.20 excludes coemployee gross

negligence claims from the exclusivity provisions of the workers’

compensation law over claims by injured workers. See id. § 85.20(2).

      As asserted by the State, the issue on appeal involves statutory

interpretation. As such, the statute in dispute is our starting point in

the resolution of the issue.   The question is whether the legislature

intended to exclude state employee claims based on gross negligence of

coemployees from the ITCA by excepting claims by state employees

“covered by the Iowa workers’ compensation law.”

      We do not search for legislative intent beyond the express language

of a statute when that language is plain and the meaning is clear. Voss

v. Iowa Dep’t of Transp., 621 N.W.2d 208, 211 (Iowa 2001). When the

language is unambiguous, it expresses the intent of the legislature that

can otherwise be obscured by ambiguous language in a statute.

Consequently, our starting point in statutory interpretation is to

determine if the language has a plain and clear meaning within the

context of the circumstances presented by the dispute.          State v.

Wiederien, 709 N.W.2d 538, 541 (Iowa 2006). We only apply the rules of

statutory construction when the statutory terms are ambiguous. Id.

      An ambiguity in a statute can arise in two ways. Id. First, it may

arise from the meaning of particular words in the statute. Id. Second, it
                                    8

may arise from the general scope and meaning of a statute in its totality.

Id. Moreover, an ambiguity exists only if reasonable minds could differ

on the meaning. State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003).

      Generally, we presume words used in a statute have their ordinary

and commonly understood meaning. City of Sioux City v. Iowa Dep’t of

Revenue & Fin., 666 N.W.2d 587, 590 (Iowa 2003).           We rely on the

dictionary as one source to determine the meaning of a word left

undefined in a statute. State v. Lane, 743 N.W.2d 178, 182 (Iowa 2007).

      The word in the statute at the center of this case is “covered.” The

ITCA excepts claims “covered by the Iowa workers’ compensation law.”

Iowa Code § 669.14(5). The asserted ambiguity in section 669.14(5) is

tied to section 85.20 of the workers’ compensation law.          With one

exception, section 85.20 establishes the workers’ compensation law as

the exclusive remedy for an employee to seek compensation from an

employer or coemployee for injuries arising out of and in the course of

employment. Id. § 85.20 (stating the workers’ compensation laws provide

the exclusive rights and remedies of employees at common law and

otherwise for covered injuries).        The exclusivity of the workers’

compensation laws applies to all claims against the employer, but

recognizes an exception for claims against a coemployee. Under section

85.20(2), the workers’ compensation laws are the exclusive remedy

against coemployee claims provided the injury was “not caused by the

other employee’s gross negligence.”      Id. § 85.20(2).   In essence, the

McGills assert this section makes coemployee gross negligence claims

“covered” by the workers’ compensation laws, while the State argues the

exception of a claim from the exclusivity of a statute does not mean the

claim is “covered” under the statute declaring the exception.
                                     9

       The dictionary discloses numerous definitions of the word “cover”

or “covered.” See Webster’s Third New International Dictionary 524, 525

(unabr. ed. 2002). However, in the context of its adjectival use in section

669.14(5), the word “cover” or “covered” has but one meaning. As used

in section 669.14(5), the word “cover” in its ordinary sense means “to

comprise, include, or embrace in an effective scope of treatment or

operation . . . to treat or deal with.”    Id. at 524.     Specifically, the

definition of “cover” has been illustrated in a dictionary with a comment

related to the scope of a law. MacMillan Dictionary, definition of cover,

http://www.macmillandictionary.com/dictionary/british/cover            (last

visited Oct. 18, 2010) (“[I]f a law, rule, or contract covers a particular

situation, type of person, etc., it includes or deals with that situation or

person.”).

       The plain meaning of the word “covered” under section 669.14(5)

means the claim excluded from the ITCA must be one that is included in

and dealt with by the workers’ compensation laws.            The workers’

compensation laws clearly do not include coemployee gross negligence

claims within their provisions, and they do not deal with such claims.

Instead, the workers’ compensation laws do just the opposite.          They

exclude coemployee gross negligence claims from their coverage.         The

workers’ compensation laws abolish all other claims against employers

and coemployees except negligence claims against coemployees based on

a degree of conduct known as “gross negligence.” Iowa Code § 85.20(1)–

(2).

       In view of the common dictionary meaning of the word “covered,”

no reasonable person could differ on its meaning in the context of section

669.14(5). The word used as an adjective in the statute describes the

claims excluded from the ITCA as those included or otherwise dealt with
                                   10

in the workers’ compensation laws.      Moreover, no reasonable person

could conclude the Workers’ Compensation Act includes and deals with

coemployee gross negligence claims by merely excluding the claims from

the Act.

      It is clear the legislature intended to exclude claims by state

workers for workers’ compensation against the State from the ITCA. See

id. § 85.2 (including state workers and the state, as an employer, within

the workers’ compensation scheme).      This case presents an occasion

when the language used in a disputed statute is plain and unambiguous.

Coemployee gross negligence claims brought by a state worker are not

excluded from the provisions of the ITCA.

      Notwithstanding, the McGills turn from the textual framework of

the ITCA and rely on our prior cases to argue state coemployee gross

negligence claims do not fall under the ITCA.    They argue coemployee

gross negligence claims are independent of the ITCA because such claims

fall under section 85.20(2).

      We have on prior occasions referred to coemployee gross negligence

claims as an “action under Iowa Code section 85.20.” Walker v. Mlakar,

489 N.W.2d 401, 404 (Iowa 1992). However, such references have only

identified the statutory source that exempted the claims from the

exclusivity of the workers’ compensation scheme for employees and

employers. Instead, we have made it clear that section 85.20 does not

recognize or create a cause of action based on gross negligence, but

merely recognizes a restriction on an existing common law right of action

against a coemployee for negligence by including a portion of the claim

within the exclusivity of the workers’ compensation scheme. Unertl, 414

N.W.2d at 326–27. Moreover, the ITCA did not create a new cause of

action, but recognized a remedy for existing causes of action previously
                                   11

unavailable because of sovereign immunity.      Engstrom v. State, 461

N.W.2d 309, 314 (Iowa 1990). One of those existing causes of action was

coemployee gross negligence.      See Unertl, 414 N.W.2d at 326–27

(recognizing gross negligence as a measure of conduct rather than a

distinct cause of action).

      IV. Constitutional Claim.

      The McGills further assert that section 669.14(5) would violate the

Equal Protection Clause of our state and federal constitutions if the

exception does not include coemployee gross negligence claims.         If

coemployee gross negligence claims are not excluded from the provisions

of the ITCA, the McGills argue a state worker injured by a coemployee

through grossly negligent conduct in the scope of employment would be

barred from suing the coemployee, while a nonstate worker injured by a

coemployee under the same circumstances would not be barred from

suing the coemployee.

      We reject the equal protection claim based on its false premise.

The McGills reason that a state employee would be essentially barred

from suing a coemployee because the state is deemed to be the defendant

in the lawsuit against a state employee once a determination is made

that the coemployee acted within the scope of employment. Iowa Code

§ 669.5.   They assert this procedural determination under the ITCA

would act to bar further proceedings because section 85.20 bars all

claims by injured workers against employers, including gross negligence

claims.    However, there is no indication whatsoever our legislature

sought to bar coemployee gross negligence claims by state workers when

it amended the procedures in the ITCA to require the state to be

substituted as a defendant in the lawsuit once it is determined the

coemployee acted in the course of employment.       See id. § 669.5(2)(a)
                                   12

(stating “the suit commenced upon the claim shall be deemed to be an

action against the state under the provisions of this chapter” (emphasis

added)). Moreover, we do not interpret statutes in a manner that would

render   the   statute   unconstitutional   if   a    reasonable   alternate

interpretation exists that passes constitutional muster.      See State v.

Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002) (“[I]f the statute is

capable of being construed in more than one manner, one of which is

constitutional, we must adopt that construction.”).

      V. Conclusion.

      We conclude the district court erred by denying the motion to

dismiss filed by the State. We reverse the decision of the district court

and remand the case to the district court for further proceedings.

      REVERSED AND REMANDED.
