                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0099
                           Filed September 13, 2017


JOSE CRUZ DELGADO-ZUNIGA,
     Plaintiff-Appellant,

vs.

DICKEY & CAMPBELL LAW FIRM, P.L.C. and MICHAEL JON PIPER,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.




      Jose Cruz Delgado-Zuniga appeals from the district court’s order granting

summary judgment in favor of attorney Michael Piper and his employer, Dickey

& Campbell Law Firm, P.L.C. AFFIRMED.




      Gregory T. Racette and Chandler M. Surrency of Hopkins & Huebner,

P.C., Des Moines, for appellant.

      Thomas J. Joensen, Matthew R. Phillips, and Catherine M. Lucas of

Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

      Jose Cruz Delgado-Zuniga appeals from the district court’s order granting

summary judgment in favor of attorney Michael Piper and his employer, Dickey &

Campbell Law Firm, P.L.C., (collectively Defendants). He argues genuine issues

of material fact exist such that summary judgment was improper. We affirm.

      I. Background Facts and Proceedings.

      In March 2008, Jose Cruz Delgado-Zuniga (Delgado) filed a complaint of

employment discrimination against his employer, Natural Milk Production, under

Iowa Code chapter 216 (2007), with the Iowa Civil Rights Commission (ICRC).

Utilizing the ICRC’s fillable form, Delgado indicated he was discriminated against

because of his Mexican national origin, because of his gender, and for retaliation

“[b]ecause [he] filed a prior civil rights complaint, opposed a discriminatory

practice, or participated as a witness in an anti-discrimination proceeding.”

Delgado checked the boxes on the form claiming his employer took the following

actions      against      him:       “Denied       Accommodation/Modification,”

“Disciplined/Suspended,” “Laid-off/Failure to Recall,” “Harassment,” “Treated

Differently,” “Undesirable Assignment/Transfer,” and “Unequal Pay.”      Delgado

then gave a summary of his allegations, essentially asserting he worked in

horrifying conditions, which led to him becoming ill and having to miss work, and

when he complained to his employer about the conditions and his resulting

illness, he was harassed and given poor work assignments, among other things,

and he was ultimately fired. Delgado subsequently received a “right to sue” letter

from the ICRC.
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      In November 2008, Delgado entered into a fee agreement with attorney

Michael Piper of the Dickey & Campbell Law Firm, P.L.C. The agreement stated

Delgado was employing Piper

      to represent him in connection with (1) [Delgado’s] discrimination
      complaint . . . ; (2) [Delgado’s] workers’ compensation claim for
      injuries arising out of and occurring in the course of [Delgado’s
      employment]; (3) [Delgado’s] claim for damages arising from
      [Delgado’s] wrongful termination from [his employment]; and (4)
      investigation of immigration possibilities for [Delgado].

      In 2009, Delgado, through Piper, filed a federal complaint asserting claims

of employment discrimination and retaliation against Delgado’s employer. Then,

in March 2010, Delgado, through Piper, filed a workers’ compensation claim

against his employer. Delgado stated on the claim form that he was injured on

March 25, 2008, after his employer prohibited him “from using the bathroom

during extended periods at work,” causing him to suffer gastrointestinal damage.

At the end of 2010, Delgado and his employer entered into a settlement

agreement concerning his federal lawsuit.      The parties acknowledged in the

agreement that it excluded Delgado’s “active workers compensation claim.”

      Thereafter, in the workers’ compensation case, Delgado’s employer filed a

motion for summary judgment, asserting Delgado’s injury was beyond the statute

of limitations. Piper planned to file a resistance to the motion based upon the

discovery rule, but Piper missed the deadline.            The deputy workers’

compensation    commissioner    subsequently    granted   Delgado’s   employer’s

summary judgment motion.

      In 2015, Delgado sued Defendants for professional malpractice based

upon Piper’s failure to timely respond to the motion for summary judgment before
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the Iowa Workers’ Compensation Commissioner. Defendants subsequently filed

a motion for summary judgment, arguing Delgado’s workers’ compensation claim

was futile from the start because the commissioner lacked subject matter

jurisdiction over the dispute, and therefore, Defendants could not be liable for the

alleged malpractice. Defendants also argued Delgado’s failure “to procure expert

testimony regarding the standard of care for lawyers and on causation” was fatal

to his malpractice claim.      Following a hearing, the district court granted

Defendants’ summary judgment motion for both reasons advanced by

Defendants.

      Delgado now appeals.

      II. Scope and Standards of Review.

      We review a summary judgment ruling interpreting an insurance policy for

correction of errors at law. See Amish Connection, Inc. v. State Farm Fire &

Cas. Co., 861 N.W.2d 230, 235 (Iowa 2015). A grant of summary judgment is

only proper if no genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3); Villarreal v.

United Fire & Cas. Co., 873 N.W.2d 714, 719 (Iowa 2016).             If the dispute

concerns only the legal consequences of undisputed facts, summary judgment is

appropriate. See Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015). But, if the

dispute involves facts that might affect the outcome of the suit, given the

applicable governing law, an issue of “material” fact exists. See id. “We view the

evidence in the light most favorable to the nonmoving party, who is entitled to

every legitimate inference that we may draw from the record.” Id. at 7.
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       III. Discussion.

       On appeal, Delgado argues the district court erred in granting summary

judgment, asserting genuine issues of material fact exist to preclude summary

judgment on both points found by the district court—lack of subject matter

jurisdiction and lack of expert testimony. Because we agree with the district court

that the agency lacked subject matter jurisdiction based upon the unique facts of

this case and find this dispositive, we need not address the second basis for

summary judgment.

       Ultimately, this case comes down to the interpretation of two Iowa

Supreme Court cases, Ottumwa Housing Authority v. State Farm Fire & Casualty

Co. (OHA), 495 N.W.2d 723, 725 (Iowa 1993), and Baird v. Ottumwa Community

School District, 551 N.W.2d 874, 875 (Iowa 1996). In OHA, an insured employer

was issued an insurance policy by the insurer covering workers’ compensation

claims.      See 495 N.W.2d at 726.     After an employee asserted a workers’

compensation claim against the insured employer and the insurer did not defend

the insured employer in the suit, the insured employer sued its insurer for breach

of contract. See id. The district court granted the insurer’s motion for summary

judgment, and the supreme court affirmed, finding there was no coverage under

the insured employer’s policies. See id. at 730. The court reasoned that whether

the insurer had a duty to defend its insured employer hinged on “whether an

issue of potential or possible liability [was] generated under the terms of the

policies.”    Id. at 726.   The court then considered whether, as the insured

employer argued, there was coverage under the workers’ compensation part of

the policy even though a civil suit had been filed by the insured’s employees
                                         6


seeking damages that were “potentially recoverable as benefits under the

workers’ compensation law.” Id. at 729. Because the insured’s employees had a

right of action against the insured employer for sex discrimination under state

and federal law and did, in fact, file civil suits on that basis against the insured

employer, the insured’s employee’s workers’ compensation claim that was

“based on the same acts of sex discrimination that she had alleged” in her civil

suit was extinguished.    Id.   The court explained that, under Iowa’s workers’

compensation law, an “employer’s immunity is the quid pro quo by which the

employer gives up his normal defenses and assumes automatic liability, while the

employee gives up his right to common law verdicts.” Id. Because, “[i]n these

circumstances the quid pro quo for [the insured employer] giving up its normal

defenses [was] gone, . . . the basis for a workers’ compensation claim grounded

on these same discrimination claims [was] likewise gone.” Id.; see also Suckow

v. NEOWA FS, Inc., 445 N.W.2d 776, 777 (Iowa 1989) (discussing the “quid pro

quo” concerning workers’ compensation claims and finding the district court

lacked subject matter jurisdiction to hear an employee’s claim concerning a

workplace injury because the workers’ compensation statutes provided the

exclusive remedy for such claims “of an employee against an employer for work-

related injuries”). Stated another way, the court concluded that “this quid pro quo

is gone when a sex discrimination claim under state or federal statutes is

available for the same acts alleged in the workers’ compensation proceeding.”

Baird, 551 N.W.2d at 876 (discussing OHA, 495 N.W.2d at 729). Consequently,

since the insured employer could not have been liable in its employee’s workers’

compensation case, the insured employer was not covered by its insurer’s policy,
                                        7

and the insurer therefore had no duty to defend it in the suit. See OHA, 495

N.W.2d at 729. As a result, the court concluded summary judgment was properly

granted. See id.

      A few years later, the supreme court considered Baird, wherein summary

judgment had been granted by the agency in favor of an employer based upon

the agency’s interpretation of the court’s ruling in OHA. See Baird, 551 N.W.2d

at 875. In Baird, an employee filed a workers’ compensation claim against her

employer, “asserting emotional or psychological injury in the workplace as a

result of the alleged ‘abusive treatment by supervisors resulting in severe

depression.’”      Id.   The   employee     also   “pursued   a   claim   with   the

[ICRC] . . . alleg[ing] sexually motivated harassment and retaliation.” Id. Before

the ICRC determined whether a right-to-sue letter would be issued to the

employee, the employee and her employer entered into a compromise

agreement wherein the employer denied the employee’s allegations but agreed,

among other things, to pay the employee for emotional distress damages. See

id. The agreement also expressly provided “that it did not include any recovery

for any claims . . . under the Iowa Workers’ Compensation Act” and the employee

“retain[ed] all rights to proceed under the Iowa Workers’ Compensation Act.” Id.

      The employer in Baird sought summary judgment thereafter in the

employee’s workers’ compensation case

      on the ground that the civil rights remedies, which [the employee]
      pursued, preclude[d] any claim under the Iowa workers’
      compensation laws based on the same conduct by the employer.
      The employer’s motion for summary judgment asserted that (1)
      workers’ compensation benefits are the quid pro quo for an
      employee’s loss of an independent action at law; and (2) because
      an independent action is available on civil rights claims either
                                         8


       before an administrative agency or a court, there is no quid pro quo
       for workers’ compensation liability for the acts on which the civil
       rights claims are based.

Id.   Citing OHA, the agency agreed and granted the employer’s motion for

summary judgment, which was subsequently affirmed by the district court on

judicial review. See id. at 876.

       The supreme court reversed the grant of summary judgment, finding that,

other than the fact that a civil rights claim had been made, nothing in the record

supported the employer’s contention that the employee’s claimed injury of

emotional distress in her workers’ compensation case was specifically the result

sexual harassment.     See id.     Rather, the employee’s workers’ compensation

claim only “asserted that she had suffered emotional distress as the result of

‘abusive treatment by supervisors resulting in severe depression.’” Id. Because

“not all circumstances that would create a compensable [workers’ compensation]

claim for emotional distress benefits . . . give rise to a sexual discrimination

claim,” and because it “was never adjudicated by the [ICRC] or a court that the

acts upon which the civil rights complaint was based in fact occurred or, if they

did occur, whether this constituted sex discrimination in employment,” the court

concluded a “genuine issue of material fact exist[ed] concerning [the employee’s]

right to proceed with her workers’ compensation claim.” Id.

       Delgado argues the factual circumstances of his case are akin to those

present in Baird, contending that because there had not been an express

determination that the acts upon which his workers’ compensation claim were

based stemmed from the same acts as his discrimination claim, a genuine issue
                                          9


of material fact exists as to whether he could proceed with his claim. However,

we agree with the district court that Baird is distinguishable:

        [W]hile the factors [Delgado] points to in his resistance are the
       same as the factors discussed by the court in Baird, there is a
       decisive factor present in this case that was not present in Baird
       and that is [Delgado’s] own definition of his workers’ compensation
       claim. The claims are identical—not being allowed to use the
       restroom because he is of Mexican origin, resulting in mental and
       physical injury. In contrast, in Baird the summary judgment record
       left open the question of whether the injuries for which the
       [employee] sought workers’ compensation benefits were caused by
       conduct that would support a claim for discrimination or by some
       other, non-discriminatory, form of emotional abuse.

Unlike the factual circumstances in Baird, even considering the record in the light

most favorable to Delgado, the record here shows the acts upon which his

workers’ compensation claim was based, as expressly described by Delgado on

the workers’ compensation claim form, stemmed from the same acts as his

discrimination claim. Nevertheless, Delgado urges that we find a genuine issue

of material fact exists because, since OHA and Baird, the agency “now holds that

preemption only occurs when illegal discrimination has actually been

established.” However, we think that Delgado misinterprets the agency’s stance.

For instance, in Sharp v. University of Northern Iowa, the agency found “the

claimant’s alleged occurrences of discrimination [were] likely relate[d] to alleged

incidents also underlying her claimed mental injury”; therefore, there was not a

question of subject matter jurisdiction because the claimant’s workers’

compensation and civil discrimination claims overlapped. Iowa Workers’ Comp.

Com’n File No. 5027941, 2012 WL 2244287, at *10 (May 14, 2012) (emphasis

added). Here, Delgado’s claims do not merely overlap like two circles in a Venn

diagram, they are the same—there is only one circle. Thus, because the acts
                                        10


alleged in his workers’ compensation claim were the same acts that formed the

basis for his civil discrimination suit, the agency was without subject matter

jurisdiction to hear his workers’ compensation claim. See OHA, 495 N.W.2d at

729; see also Suckow, 445 N.W.2d at 777. Because the agency lacked subject

matter jurisdiction to hear Delgado’s claim, even assuming arguendo that Piper

was negligent, Delgado’s workers’ compensation claim would have failed. As a

result, Delgado sustained no damage by Piper’s inaction, and his claim of legal

malpractice fails as a matter of law.

       IV. Conclusion.

       Because we agree with the district court that the agency lacked subject

matter jurisdiction to hear Delgado’s workers’ compensation claim, Delgado’s

workers’ compensation claim would have failed. As a result, even assuming

arguendo that Piper was negligent, Delgado sustained no damage by Piper’s

inaction, and his claim of legal malpractice fails as a matter of law.

Consequently, we find no error in the district court’s grant of summary judgment

in favor of Defendants.

       AFFIRMED.
