              IN THE SUPREME COURT OF IOWA
                                No. 17–2068

                              Filed May 3, 2019


DILLON CLARK, AGNES DUSABE, MUSA EZEIRIG, ZARPKA GREEN,
ABRAHAM TARPEH, and DUSTY NYONEE,

      Appellants,

vs.

INSURANCE COMPANY STATE OF PENNSYLVANIA,

      Appellee.



      Appeal from the Iowa District Court for Jasper County, Terry Rickers

and John D. Lloyd, Judges.



      Interlocutory appeal from district court judgment dismissing action.

AFFIRMED.



      Matthew M. Sahag of Dickey & Campbell Law Firm, PLC,

Des Moines, for appellants.


      Keith P. Duffy and Mitchell R. Kunert of Nyemaster Goode, P.C.,

Des Moines, for appellee.



      D. Brian Scieszinski of Bradshaw Fowler Proctor & Fairgrave,

Des Moines, for amici curiae Iowa Association of Business and Industry,

Employers Mutual Casualty Company, and United Fire & Casualty

Company.
                                            2

APPEL, Justice.

      In this case, employees and former employees of an Iowa

manufacturing company brought a common law tort claim against the

employer’s workers’ compensation insurance carrier. The claim alleged

that the insurance carrier failed to conduct or negligently conducted an

insurance inspection at the company’s manufacturing facility and that the

omission or action caused serious health problems for plaintiffs.

      The insurance carrier moved to dismiss the petition based on Iowa

Code section 517.5 (2017) 1. This Code provision provides, “No inspection

of any place of employment made by insurance company inspectors . . .

shall be the basis for the imposition of civil liability upon the inspector or

upon the insurance company . . . .” Id. Plaintiffs resisted, arguing that

the statutory provision is unconstitutional as violative of equal protection,

inalienable rights, and due process under article I, sections 1, 6, and 9 of

the Iowa Constitution. The district court held the provision constitutional

and dismissed the actions.

      We granted interlocutory review. For the reasons expressed below,

we affirm the judgment of the district court.

      I. Factual and Procedural Background.

      TPI Iowa, LLC is a wind blade manufacturing facility located in

Newton, Iowa. TPI employs hundreds of employees at its Newton plant.

The Insurance Company of the State of Pennsylvania (ICSOP) is TPI’s

workers’ compensation insurer.            Plaintiffs Dillon Clark, Agnes Dusabe,

Musa Ezeirig, Zarpka Green, Dusty Nyonee, and Abraham Tarpeh are

current or former employees of TPI.




      1All   references are to the 2017 Iowa Code unless otherwise noted.
                                      3

      Plaintiffs filed a petition in district court naming as defendants

ICSOP, TPI, and various TPI affiliates, officers and employees. Plaintiffs’

petition included a variety of claims against the various defendants, but

the only claims against ICSOP were based on the failure to inspect the

premises, or in the alternative, negligent inspection.

      Specifically, plaintiffs alleged that employees at TPI were exposed to

hazardous chemicals while manufacturing wind blades at the TPI

manufacturing facility. Plaintiffs alleged the acts or omissions of ICSOP

caused them various injuries, including horrific skin ruptures, rashes,

burns, swollen and wounded eyelids, irregular vaginal bleeding, extensive

body itches, congestion in the throat and lungs, and erectile dysfunction.

Plaintiffs sought compensatory damages for their personal injuries,

medical expenses, and lost wages.          Plaintiffs also sought punitive

damages.

      ICSOP moved to dismiss plaintiffs’ claims against it. ICSOP noted

that the only claims against it arose from alleged failure to inspect or

negligent inspections. ICSOP asserted that it had statutory immunity from

such claims under Iowa Code section 517.5.

      Plaintiffs responded that section 517.5 is unconstitutional. They

pointed to article I, sections 1, 6, and 9 of the Iowa Constitution.

      The district court granted the motion to dismiss.         We granted

interlocutory review.

      II. Standard of Review.

      We review motions to dismiss for failure to state a claim for

corrections of errors at law. Rees v. City of Shenandoah, 682 N.W.2d 77,

78 (Iowa 2004). Constitutional claims are reviewed de novo. Godfrey v.

State, 752 N.W.2d 413, 417 (Iowa 2008).
                                      4

      III. Statutory and Constitutional Provisions.

      Plaintiffs challenge the constitutionality of Iowa Code section 517.5.

That provision states,

            No inspection of any place of employment made by
      insurance company inspectors or other inspectors inspecting
      for group self-insurance purposes shall be the basis for the
      imposition of civil liability upon the inspector or upon the
      insurance company employing the inspector . . . .

Id.   Plaintiffs claim that Iowa Code section 517.5 violates the equal

protection and privileges and immunities provisions of the Iowa

Constitution, Iowa Const. art. I, § 6 (“All laws of a general nature shall

have a uniform operation; the general assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which, upon the same

terms shall not equally belong to all citizens.”), the inalienable rights

clause of the Iowa Constitution, id. art. I, § 1 (“All men and women are, by

nature, free and equal, and have certain inalienable rights . . . .”), and the

due process clause of the Iowa Constitution, id. art. I, § 9 (“The right of

trial by jury shall remain inviolate . . . [and] no person shall be deprived of

life, liberty, or property, without due process of law.”).

      IV. Positions of the Parties.
      A. Plaintiffs.

      1. Equal protection.    With respect to equal protection, plaintiffs

assert that similarly situated persons—nonemployee tortfeasors—are

treated differently that other nonemployee tortfeasors under the workers’

compensation statutes. Ordinarily, nonemployee tortfeasors are subject

to common law liability. But, plaintiffs point out, ICSOP as a nonemployee

tortfeasor receives absolute immunity under Iowa Code section 517.5.

Further, plaintiffs assert the distinction between nonemployee tortfeasor

insurance companies and other nonemployee tortfeasors impacts a
                                       5

fundamental interest in access to the courts, and as a result, the

classification is subject to strict scrutiny.

      In support of their equal protection claim, plaintiffs cite Suckow v.

NEOWA FS, Inc., 445 N.W.2d 776 (Iowa 1989). In Suckow, the plaintiff

challenged    a   classification   scheme       arising   out   of   the   workers’

compensation statute. Id. at 777. He asserted that because a coemployee

could be liable for workplace injuries based on gross negligence under Iowa

Code section 85.20 (1985), the employer should also be subject to liability

under a gross negligence theory. Id. The plaintiff attacked the distinction

between employers and coemployees both under a strict scrutiny and a

rational basis analysis. Id. at 778–79. The Suckow court determined that

a fundamental right was not involved and that the statute had a rational

basis. As a result, the Suckow court affirmed the district court’s dismissal

of the claim. Id. at 778–80.

      Plaintiffs in this case recognize that the Suckow court concluded

that the classification did not involve a fundamental right of access to the

courts. Plaintiffs argue, however, that the Suckow court emphasized that

the statutory immunity granted to employers did not eliminate an

employee’s ability to recover against the employer, but only required that

any recovery be channeled through the workers’ compensation process.

Id. at 778–79. Plaintiffs thus emphasize that the immunity statute at issue

in Suckow did not eliminate all potential claims against an employer

arising out of workers’ compensation, but only directed that claims be

resolved through a statutorily required administrative process. Id.

      Plaintiffs also cite the case of Seivert v. Resnick, 342 N.W.2d 484

(Iowa 1984). In Seivert, the court considered the statutory classification

which provided coemployees with immunity except for acts or omissions

that amounted to “gross negligence” while non-coemployee tortfeasors had
                                      6

no similar immunity. Id. at 484 (citing Iowa Code § 85.20 (1981)). The

plaintiff in Seivert sought to sue coemployees based on a simple negligence

theory. Id. at 484–85. The district court found there was a rational basis

for the classification. Id.

      The Seivert court affirmed the district court’s dismissal of the simple

negligence claim.    Id. at 485–86.    According to the Seivert court, the

provision of limited immunity to coemployees was rational because

coemployees worked at the direction of the employer, and as a result,

providing limited immunity to coemployees could be considered part of the

quid pro quo for the workers’ compensation scheme. Id. at 485.

      Plaintiffs here point out that under Seivert, a potential claimant

could still seek a remedy against coemployees based on gross negligence.

See id. at 484. As a result, plaintiffs argue, access to the courts in Seivert

was not completely denied.        See id.    Because the claim against a

coemployee was not completely denied, plaintiffs contend that the Seivert

court was able to apply a rational basis test and sustain the classification.

      Plaintiffs assert that Iowa Code section 517.5 is distinguishable from

the statutory provisions considered in Suckow and Seivert because section

517.5 completely eliminates any claim against ICSOP.          Consequently,

plaintiffs assert, the fundamental right of access to the courts is implicated

in this case and strict scrutiny applies.

      Applying a strict scrutiny test, plaintiffs assert that ICSOP cannot

show the statute is narrowly tailored to advance a compelling interest.

Although workplace safety is an important government objective, plaintiffs

contend, it can be accomplished through the alternative and less

burdensome means of occupational safety and health inspections

pursuant to Iowa Code section 88.6.
                                     7

       Further, plaintiffs question whether a statute that grants immunity

for acts or omissions related to workplace inspections promotes safety at

all. In support of this contention, plaintiffs cite Fireman’s Fund American

Insurance v. Coleman, 394 So. 2d 334 (Ala. 1980). In Fireman’s Fund, the

Alabama Supreme Court held that a grant of statutory immunity to

insurance carriers was unconstitutional. Id. at 336. The Fireman’s Fund

case relied on earlier Alabama precedent, which held that a provision in

Alabama’s    workers’   compensation     statute   granting   immunity    to

coemployees violated article I, section 13 of the Alabama Constitution. Id.

(citing Grantham v. Denke, 359 So. 2d 785, 787 (Ala. 1978)). Article I,

section 13 of the Alabama Constitution provides that “every person, for

any injury done him, . . . shall have a remedy by due process of law.” Ala.

Const. art. I, § 13.

       Plaintiffs urge us to adhere to the reasoning of Justice Jones in a

concurring opinion in Fireman’s Fund. In his opinion, Justice Jones noted

the difference between jurisdictions regarding the quid pro quo in a

workers’ compensation statute as involving solely the employer and the

employee, and those jurisdictions where the quid pro quo involved the

employee and a larger “collective interest or enterprise.” Id. at 342 (Jones,

J., concurring). Under the latter line of cases, according to Justice Jones,

a remedy against some party is sufficient to avoid a constitutional problem.

Id.   Justice Jones rejected the collective interests or enterprise theory,

arguing that workers’ compensation statutes govern only the relationship

between the employer and the employee. Id. at 342–43.

       Justice Jones considered the insurance carrier’s claim that there

was    another   quid   pro   quo   argument    independent    of   workers’

compensation benefits, namely, that immunity from liability for workplace

inspections advances the state’s interest in eradicating unsafe working
                                         8

conditions. See id. at 345. But Justice Jones rejected this rationale. Id.

at 345–46. Justice Jones found that immunity provisions were contrary

to the premise of our tort system of accountability and amounted to a

declaration that “[i]f you will not hold me responsible for my misconduct,

I will be more careful.” Id. at 346.

         If the court is inclined not to apply strict scrutiny, plaintiffs here

argue,     the   distinction   between   workers’    compensation     insurance

companies and other nonemployee tortfeasors cannot survive a rational

basis challenge. Plaintiffs claim that if encouraging inspections is the goal,

the rational way to do so is not to immunize insurance company

inspections but to require inspections under certain circumstances.

         Plaintiffs finally launch a somewhat different claim. Plaintiffs note

that occupational health and safety inspectors of the state operating under

Iowa Code section 88.6 receive only qualified immunity under the State

Tort Claims Act, Iowa Code section 669.14. According to plaintiffs, there

is no rational basis to grant absolute immunity to a private insurance

company conducting workplace inspections and only qualified immunity

to state inspectors.

         2. Inalienable rights. Plaintiffs next assert that Iowa Code section

517.5 violates the inalienable rights clause of article I, section 1 of the Iowa

Constitution. Plaintiffs point out that under our caselaw, the inalienable

rights clause was designed to “secure citizens’ pre-existing common law

rights    (sometimes    known     as   ‘natural   rights’)   from   unwarranted

government restrictions.” Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 176

(Iowa 2004). Plaintiffs assert that because the immunity of the workers’

compensation insurance carrier for liability arising from inspections is

absolute, a fundamental right of access to the courts has been implicated.
                                      9

      Plaintiffs recognize that even where a right protected under article I,

section 1 is involved, the legislature may reasonably regulate that right.

Steinberg-Baum & Co. v. Countryman, 247 Iowa 923, 929–30, 77 N.W.2d

15, 18–19 (1956). Citing Fireman’s Fund, 394 So. 2d at 344, plaintiffs

assert that the absolute immunity provision of Iowa Code section 517.5

does not reasonably promote the public interest in safety.

      3. Due process. Last, plaintiffs claim that Iowa Code section 517.5

violates the due process clause of the Iowa Constitution in article I, section

9 by depriving them of a right to a jury trial. Plaintiffs incorporate their

earlier arguments suggesting that there is no rational relationship between

the immunity statute and its intended purpose.

      B. Defendant’s Position.

      1. Equal protection. At the outset, ICSOP urges that we apply a

rational basis test in this case. ICSOP notes, under Iowa Administrative

Code rule 876—4.10, “Whenever any insurance carrier shall issue a policy

with a clause in substance providing that jurisdiction of the employer is

jurisdiction of the insurance carrier, the insurance carrier shall be deemed

a party in any action against the insured.” Thus, ICSOP asserts, plaintiffs

do have a claim against ICSOP, namely, a claim under the workers’

compensation statute, but not a common law claim.

      In any case, ICSOP argues there is no “vested right” in a common

law claim against an insurer arising out of the failure to inspect or a

negligent inspection. ICSOP notes that liability arising out of an insurance

carrier’s failure to inspect or negligent inspection was first recognized in

Iowa in Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 1328, 121

N.W.2d 361, 366 (1963). In response to the Fabricius case, ICSOP points

out, the legislature enacted Iowa Code section 88A.14 (1966), which

eliminated insurance company liability to an employee related to
                                    10

inspections. See Thompson v. Bohlken, 312 N.W.2d 501, 506–07 (Iowa

1981).   Although the legislature omitted the statutory immunity for

insurance company inspections against employee claims in the 1972

version of the Iowa Code, ICSOP explains, the legislature subsequently

reenacted an immunity provision. 1978 Iowa Acts ch. 1168, § 1 (codified

as amended at Iowa Code § 517.5 (2017)). Citing Fabricius, 254 Iowa at

1328, 121 N.W.2d at 366, ICSOP maintains that the right to abolish a

common law cause of action is vested in the legislature under its police

power.

      ICSOP asserts additional reasons why any legislative classification

at issue should be subject to rational basis review. ICSOP contends that

while encouraging insurance company inspections was a purpose of the

immunity, the immunity must be considered part of the larger workers’

compensation system where the overall goal is to minimize appeals and

afford an efficient and speedy tribunal to determine and award

compensation under the terms of the workers’ compensation act. Suckow,

445 N.W.2d at 778–79; Flint v. City of Eldon, 191 Iowa 845, 847, 183 N.W.

344, 345 (1921).    Removing the immunity, ICSOP states, would cause

insurance rates for employers to rise, something that the legislature could

rationally seek to avoid.

      Even if subject to strict scrutiny, ICSOP contends it satisfies that

test. According to ICSOP, the workers’ compensations scheme advances

important interests that can only be accomplished by the immunities

granted in Iowa Code section 517.5.

      ICSOP confronts Fireman’s Fund, the Alabama case on which

plaintiffs extensively rely. ICSOP notes that Fireman’s Fund was based on

Grantham, 359 So. 2d 785, and Grantham was effectively overturned by

the Alabama Supreme Court in Reed v. Brunson, 527 So. 2d 102, 117 (Ala.
                                   11

1988). The Reed court noted that the protections under article I, section

13 of the Alabama Constitution arose only when a litigant had “a vested

interest in a particular cause of action.” Id. at 114. In any event, ICSOP

states, the Reed court noted that even if it were to apply the common law

approach of Fireman’s Fund, the legislature had the power to grant

immunity to coemployees and therefore the statute was constitutional. Id.

at 114–16. Although Reed involved a case on immunity for coemployees,

ICSOP asserts that the reasoning of Reed extends to effectively overrule

Fireman’s Fund.

      ICSOP disputes plaintiffs’ claim that equal protection is violated

when insurance companies engaged in workplace inspection receive

absolute immunity but government workplace inspectors receive only

qualified immunity.   ICSOP claims that the statute itself creates no

classification, and therefore, no equal protection problem is present.

ICSOP further points out that if government inspectors were inspecting

“for group self-insurance purposes,” the inspectors would be entitled to

absolute immunity under Iowa Code section 517.5.

      Further, ICSOP distinguishes an employer’s insurance carrier from

the state’s inspectors. ICSOP notes that the employer’s insurance carrier

is already liable for “any and all personal injuries sustained by an

employee arising out of and in the course of the employment.” Iowa Code

§ 85.3(1). Thus, according to ICSOP, the carrier already has a motivation

for improving workplace safety.   By contrast, ICSOP states, the state’s

inspectors operating under Iowa Code section 88.6 have no such workers’

compensation liability. Therefore, ICSOP concludes, there is a rational

basis for not giving the state inspectors the immunity the employer’s

carrier is given.
                                     12

      2. Inalienable rights. ICSOP agrees that under article I, section 1,

the court should consider (1) whether the right asserted is protected by

the inalienable rights clause and (2) whether the statute is a reasonable

exercise of the state’s police power. Gacke, 684 N.W.2d at 176. ICSOP

claims, however, that the question here does not involve access to the

courts. Rather, according to ICSOP, the question is whether under Iowa

law the plaintiff has a vested right at the time the legislature abolished any

cause of action that might be asserted.

      Further, ICSOP argues that plaintiffs are wrong when they suggest

that Iowa Code section 517.5 does not serve the public interest. ICSOP

claims that Iowa Code section 517.5 is part of the overall workers’

compensation scheme. Its goal is to provide an expedient forum for injured

workers to resolve claims against their employer and the employer’s

workers’ compensation insurance provider.           ICSOP thus sees the

immunity provision in Iowa Code section 517.5 as part of the grand

bargain of the workers’ compensation system.

      3. Due process. ICSOP points out that under their view of the case,

plaintiffs have no claim against the insurance company for the allegedly

negligent inspection. According to ICSOP, no right to a jury trial under

article I, section 9 of the Iowa Constitution can possibly attach to a

nonexistent claim.

      V. Discussion.

      A. Introduction.      This case involves the intersection of two

important currents in American law.         These are the development of

workers’ compensation systems and the extension of tort liability to parties

who engage in gratuitous or voluntary undertakings.

      At the turn of the century, states began adopting workers’

compensation systems to compensate workers for workplace injuries.
                                      13

Emily A. Spieler, (Re)assessing the Grand Bargain: Compensation for Work

Injuries in the United States, 1900–2017, 69 Rutgers L. Rev. 891, 893

(2017). These workers’ compensation systems were said to be the product

of a legislatively crafted “grand bargain” or “quid pro quo.” Id. at 893 &

n.4.   Workers gave up their common law right to seek a full range of

compensatory and punitive damages available at common law and instead

became eligible for limited statutorily-based compensation. Id. at 908. In

return, however, the employee was no longer required to show the

employer’s fault, but only needed to show that the injury arose in the

course of employment. See id. at 908, 910 n.84. The precise contours of

the grand bargain—what the employee gave up and what the employee

gained—varied from jurisdiction to jurisdiction. Id. at 909. As a result,

the workers’ compensation caselaw that developed over time often turned

upon the precise wording of the applicable statute. See id. at 908–10 &

nn. 83, 86.

       From   the   beginning,    workers’    compensation     statutes   were

challenged on a variety of constitutional grounds. John Fabian Witt, The

Long History of State Constitutions and American Tort Law, 36 Rutgers L.J.

1159, 1185 (2005).       As a general proposition, courts sustained the

substance of the grand bargain against a variety of constitutional attacks.

Id. at 1190–91. Often the question in constitutional litigation is whether

the challenged provision or classification is within the scope of the grand

bargain or whether the challenge involves a provision or classification that

is outside the scope of the legislatively created tradeoffs. See, e.g., Seivert,

342 N.W.2d at 485–86.

       A second legal current involves the imposition of tort duties on a

party that gratuitously or voluntarily engages in undertakings that are

reasonably relied upon by third parties. See Restatement (Third) of Torts:
                                      14

Liab. for Physical & Emotional Harm § 29, at 493 (Am. Law Inst. 2010).

Once he undertakes to provide assistance, the law may require him to do

so reasonably. See id. The classic example involves the bystander who

voluntarily renders aid to another.

      B. Iowa Precedent Regarding Voluntary Undertakings and

Scope of Grand Bargain.

      1. Voluntary undertakings.      A significant issue coursing through

American law in the middle of the twentieth century was the question of

whether one who voluntarily or gratuitously engaged in an undertaking

might be liable to third parties. We considered the question in the workers’

compensation context in Fabricius, 254 Iowa at 1323, 121 N.W.2d at 363.

      In Fabricius, the plaintiff’s decedent died after the employer’s

workers’ compensation insurance carrier allegedly negligently inspected or

failed to inspect the workplace, machinery, and equipment of the

employer. Id. at 1320–21, 121 N.W.2d at 362. The insurance company

resisted liability, claiming it stood “in the shoes” of the employer and that

it could not be considered a “third party” or “some person other than the

employer” as those terms were used under a liability statute. Id. at 1321,

121 N.W.2d at 362.

      The Fabricius court rejected the insurer’s argument. Id. at 1328,

121 N.W.2d at 366. The Fabricius court cited Bradshaw v. Iowa Methodist

Hospital, 251 Iowa 375, 388, 101 N.W.2d 167, 174 (1960), as authority for

the proposition that a statute would not be interpreted as taking away a

common law right unless imperatively required. 254 Iowa at 1322, 121

N.W.2d at 362. The Fabricius court viewed the insurer as outside the

legislature’s grand bargain. Id. at 1325–26, 121 N.W.2d at 364–65.

      The Fabricius court noted that in Smith v. American Employers’

Insurance Co., 163 A.2d 564, 567–68 (N.H. 1960), the New Hampshire
                                     15

Supreme Court came to a similar conclusion but that the decision

prompted legislative action to amend its workers’ compensation statute.

254 Iowa at 1327, 121 N.W.2d at 365. The Fabricius court was undeterred,

noting that the New Hampshire legislature may not have considered the

matter prior to the Smith case. Id. After the Fabricius case, the Iowa

legislature enacted a statutory provision designed to overrule our holding.

See Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976). The current

legislative approach to inspections is now embraced in Iowa Code section

517.5.

      2. Scope of grand bargain. The first recent Iowa case of importance

considering the scope of the grand bargain in a constitutional context is

Seivert, 342 N.W.2d 484. In Seivert, an injured worker challenged, on

equal protection grounds under article I, section 6 of the Iowa

Constitution, the provision of the Iowa workers’ compensation statute that

limited the potential liability of coemployees. Id.

      We held in Seivert that the classification separating coemployee

tortfeasors from tortfeasors who are not coemployees was rational in light

of the legislative scheme for providing workers’ compensation benefits. Id.

at 485–86.   We noted that a coemployee works at the direction of the

employer, and as a result, it made sense to provide at least a partial share

of the employer’s immunity from common law tort suits. Id. at 485.

      In short, Seivert stands for the proposition that the grand bargain in

Iowa’s workers’ compensation program not only limits the liability of

employers, but also limits the liability of coemployees compared to those

who are not coemployees. Such classifications within the grand bargain

are subject to rational basis review when attacked on equal protection

grounds under the Iowa Constitution. Id.
                                    16

      The second relevant Iowa case is Suckow, 445 N.W.2d 776.          In

Suckow, the plaintiff claimed that employers and coemployees formed a

class of tortfeasors and that the distinction between employers, who

received complete immunity, and coemployee tortfeasors, who received

limited immunity, violated equal protection under the Fourteenth

Amendment and article I, section 6 of the Iowa Constitution. Id. at 777.

      The Suckow court first considered whether the classification should

be reviewed under strict scrutiny or the more deferential rational basis

test. Id. at 778. The Suckow court declined to apply strict scrutiny. Id.

at 778–79. The Suckow court rejected the notion that access to the court

is a fundamental right deprived of workers’ compensation claimants. Id.

The Suckow court emphasized that workers’ compensation schemes

“represent a compromise between employees and employers.” Id. at 779.

The Suckow court concluded the classification in the case did not require

strict scrutiny as it provided a comprehensive statutory scheme “to provide

an expeditious and automatic remedy to injured employees.” Id. at 778

(quoting Mark Douglas Cahill, Note, Section 85.20 v. the Dual Capacity

Doctrine: Should Worker’s Compensation Always Be the Exclusive Remedy

in Iowa?, 32 Drake L. Rev. 1015, 1016 (1982) [hereinafter Cahill]).

      Declining to apply strict scrutiny, the Suckow court turned to

applying a rational basis test. Id. at 779. The Suckow court retraced the

steps of Seivert and noted the employer’s immunity is supported as the

quid pro quo of giving up normal defenses while the employee gives up the

right to common law verdicts. Id. The Suckow court concluded that there

was a rational basis for giving employers more immunity than

coemployees. Id. at 780. The Suckow court emphasized that employers

have more at stake than coemployees as they must pay for all work-related
                                              17

injury regardless of fault and must pay for the cost of insurance, burdens

not borne by coemployees. Id.

        C. Application of Principles to Present Dispute. We now turn to

application of the principles in the above caselaw to the present dispute.

We think it clear under Seivert and Suckow that the grand bargain

embraced in our workers’ compensation statute is not to be so narrowly

construed as to include only provisions related to the employer and the

employee.      Suckow stands for the proposition that the legislature may

include a limitation on the liability of coemployees as part of the grand

bargain of our workers’ compensation scheme.

        We think the logical extension of Suckow is that the legislature may

reasonably provide immunity for inspections performed by a workers’

compensation carrier as part of the grand bargain.                              A workers’

compensation carrier is bound by a judgment against the employer in a

workers’ compensation proceeding. Iowa Code § 87.10. Further, if an

insurance carrier were exposed to risks as a result of negligent inspections,

it might choose either to forgo inspections or to raise its insurance rates.

The legislature could decide that the grand bargain behind the workers’

compensation scheme is best balanced by including immunity for

inspections performed by workers’ compensation carriers. 2

        2A number of workers’ compensation statutes in other jurisdictions expressly

state that the term “employer” includes an employer’s workers’ compensation insurance
company or include language that makes clear that workers’ compensation insurance
companies, to the extent they are subject to liability, are not liable for activities related to
safety inspections. See, e.g., Ala. Code § 25-5-1(4) (Westlaw current through Act 2019-
71) (stating that the term employer includes insurer); Ark. Code Ann. § 11-9-409(e)(1)
(West, Westlaw current through 2019 Reg. Sess.) (stating that insurance company has
no liability based on allegation that the accident was caused or could have been prevented
by a program or inspection by the insurance company); Del. Code Ann. tit. 19, § 2301
(West, Westlaw current through 82 Laws 2019, ch. 7) (stating that the term employer
includes insurer as far as practicable); 820 Ill. Comp. Stat. Ann. 305/5(a) (West, Westlaw
current through P.A. 101-4, 2019 Reg. Sess.) (extending statutory immunity to insurer
providing safety service, advice, or recommendations); Ind. Code Ann. § 22-3-2-5(a) (West,
Westlaw current through 2019 1st Reg. Sess., Apr. 25, 2019) (stating that insurance
                                           18

       The consequence of including immunity for workers’ compensation

carriers’ inspections in the grand bargain is that the proper standard of

review under article I, section 6 of the Iowa Constitution is the rational

basis test. See Suckow, 445 N.W.2d at 778–79; Seivert, 342 N.W.2d at

485. That test has been satisfied on reasonable policy grounds.

       Because the immunity for workers’ compensation insurance

companies’ inspections is part of the grand bargain behind workers’

compensation schemes, plaintiffs’ challenge to the provision under Iowa

Constitution article I, section 1 also fails. The thrust of plaintiffs’ claim is

that the absolute immunity provision abolishes a claim otherwise available

under common law. But if viewed as part of the workers’ compensation

scheme, that claim lacks merit. Here, the workers’ compensation insurer

has been hired by the employer to fulfill statutory duties under Iowa’s

workers’ compensation law.            As a result, the workers’ compensation

insurer is part of the workplace and is inextricably tied to the employer.

Because of the close relationship between the workers’ compensation

carrier and the employer, the immunity provided by Iowa Code section

517.5 is part of the grand bargain reflected in Iowa’s workers’

compensation law. Under the workers’ compensations scheme, there is

no abolition of the right to recover. Instead, as emphasized in Suckow, the

state has provided a comprehensive statutory scheme “to provide an

expeditious and automatic remedy to injured employees.” 445 N.W.2d at

778 (quoting Cahill, 32 Drake L. Rev. at 1016). As a result, contrary to

plaintiffs’ claim, there has been no absolute elimination of a right of

recovery for on-the-job injuries, but only a reasonable regulation of it.

carrier is liable only to extent and manner specified by statute); Me. Rev. Stat. Ann. tit.
39-A, § 102(12) (Westlaw current through ch. 52, 2019 1st Reg. Sess.) (stating that the
term employer includes insurer unless contrary intent is apparent or inconsistent with
legislative purpose).
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      Because we have found that there is no claim for negligent

inspection against a workers’ compensation carrier, it follows that there is

no right to a jury trial on a nonexistent claim. Thus, plaintiffs’ due process

claim also fails.

      VI. Conclusion.

      For the above reasons, the judgment of the district court dismissing

the action is affirmed.

      AFFIRMED.
