               IN THE SUPREME COURT OF IOWA
                                 No. 12–2088

                            Filed May 2, 2014


DENNIS H. HAGENOW and ROSALEE A. HAGENOW,

      Appellees,

vs.

AMERICAN FAMILY MUTUAL INSURANCE COMPANY,

      Appellant.



      Appeal from the Iowa District Court for Black Hawk County,

George L. Stigler, Judge.



      An insurer seeks interlocutory review of a district court’s denial of

the insurer’s motion for summary judgment.               REVERSED AND

REMANDED.



      Scott   K.   Green    of   American      Family   Mutual   Insurance,

West Des Moines, for appellant.



      James W. Carney and George W. Appleby V of Carney & Appleby,

P.L.C., Des Moines, for appellee.
                                       2

ZAGER, Justice.

      Dennis and Rosalee Hagenow (Hagenows) brought this action to

recover uninsured motorist benefits from their insurer, American Family

Mutual Insurance Company (American Family). American Family moved

for summary judgment arguing the Hagenows were not entitled to

uninsured motorist benefits under their policy. The district court denied

American Family’s motion for summary judgment, and American Family

filed an application for interlocutory appeal, which we granted. For the

reasons set forth below, we reverse and remand.

      I. Background Facts and Proceedings.

      On November 10, 2008, Dennis Hagenow was stopped at a red

light at the intersection of University Avenue and Cedar Heights Drive in

Cedar Falls, Iowa, when his vehicle was rear-ended by a vehicle driven by

Betty Schmidt. Dennis suffered personal injuries, and his vehicle was

totaled. Schmidt was taken to the hospital and cited for failure to stop in

an assured clear distance.

      In November 2010, the Hagenows filed an action alleging

negligence against Schmidt.         Schmidt filed an answer denying the

Hagenows’ allegations and asserting the defense of sudden emergency.

Schmidt claimed to have suffered a transient ischemic attack or stroke

immediately before the accident with Dennis. The matter proceeded to a

jury trial. According to the judgment entered by the district court after

the trial, “[t]he jury returned a verdict that the defendant was not

negligent under any theories.” 1

      At the time of the collision, American Family was the automobile

insurer of both the Hagenows and Schmidt.               Schmidt’s automobile

      1The  judgment in favor of Schmidt was ultimately affirmed by us on further
review. See Hagenow v. Schmidt, 842 N.W.2d 661, 678 (Iowa 2014).
                                     3

insurance policy had a personal injury liability limit of $300,000 per

person and a property damage liability limit of $100,000. The Hagenows’

policy included uninsured motorist coverage that provided American

Family would “pay compensatory damages for bodily injury which an

insured person is legally entitled to recover from the owner or operator of

an uninsured motor vehicle.”

      The Hagenows filed an uninsured motorist claim under their

insurance policy.   The Hagenows’ policy defined “an uninsured motor

vehicle” as a motor vehicle that was:

      a.     Not insured by a bodily injury liability bond or policy
             at the time of the accident.

      b.     Insured at the time of the accident by a liability bond
             or policy with bodily injury liability limits below the
             minimum required by the financial responsibility law
             of the state in which your insured car is principally
             garaged.

      c.     A hit-and-run vehicle whose operator or owner is
             unknown and which causes bodily injury to you or a
             relative. Physical contact with a hit-and-run vehicle is
             required.

      d.     Insured by a bodily injury liability bond or policy at
             the time of the accident but the company denies
             coverage or is or becomes insolvent within one year
             after the accident.

American Family determined Schmidt’s vehicle was not an uninsured

motor vehicle under the Hagenows’ policy, so American Family denied

the claim.

      In November 2010, the Hagenows filed this breach of contract

action against American Family. The Hagenows alleged American Family

breached the automobile insurance policy between the two by not paying

uninsured motorist benefits.    American Family answered, denying the
                                     4

Hagenows’ allegations and raising affirmative defenses, including that

Schmidt was not an “uninsured motorist” under the terms of their policy.

      In June 2012, American Family filed a motion for summary

judgment. First, American Family contended that Schmidt was not an

uninsured motorist under the definitions of the policy.        Additionally,

American Family argued that to recover damages under the uninsured

motorist provision, the Hagenows must prove that they were “legally

entitled to recover from the owner or operator of an uninsured motor

vehicle.”   American Family acknowledged Schmidt was covered and

defended Schmidt at the underlying civil jury trial which determined that

Schmidt was not liable for the Hagenows’ damages. Therefore, American

Family maintained, the Hagenows were not legally entitled to recover.

      The Hagenows filed a resistance and cross-motion for summary

judgment.    First, they argued they were legally entitled to recover

because the jury found Schmidt not liable on the basis of a legal excuse.

Next, while the Hagenows conceded Schmidt had automobile insurance

coverage at the time of the collision, they nevertheless insisted Schmidt’s

vehicle was uninsured under the terms of the Hagenows’ insurance

policy because American Family denied that the Hagenows’ uninsured

motorist coverage applied to sudden emergency defenses, like the one

raised by Schmidt.

      In October, the district court conducted a hearing on American

Family’s motion for summary judgment. After the hearing, the district

court issued its ruling denying American Family’s motion for summary

judgment. The district court found that the “legally entitled to recover”

language in the policy was to be broadly construed. The district court

also found that “[t]he sole methodology of recovery for the Hagenows is

litigation to recover for their injuries.” The district court concluded that
                                     5

under the facts of this case, the uninsured motorist provision found in

the Hagenows’ insurance policy did not bar their action against American

Family.

      American Family timely filed an application for interlocutory

appeal, which we granted.

      II. Standard of Review.

      We review a district court’s decision to deny a motion for summary

judgment for correction of errors at law. Ranes v. Adams Labs., Inc., 778

N.W.2d 677, 685 (Iowa 2010). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.”     Iowa R. Civ. P. 1.981(3).   We view the

record in the light most favorable to the nonmoving party. Pitts v. Farm

Bureau Life Ins. Co., 818 N.W.2d 91, 96 (Iowa 2012).

      III. Discussion.

      There are two issues on appeal. The first is whether the district

court erred by concluding the Hagenows were “legally entitled to recover”

from American Family under the Hagenows’ uninsured motorist (UM)

provision.   The second issue is whether Schmidt’s vehicle was “an

uninsured motor vehicle” under the Hagenows’ UM provisions.

      Before separately addressing each issue, we recognize that our

fundamental task is to interpret the language of the insurance policy.

Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 576 (Iowa 2004)

(explaining an automobile insurance policy is a contract and is governed

by rules applicable to contracts). “In doing so, ‘we strive to ascertain the

intent of the parties at the time the policy was sold.’ ”      Id. (quoting

Ferguson v. Allied Mut. Ins. Co., 512 N.W.2d 296, 299 (Iowa 1994)). We
                                      6

ordinarily determine the parties’ intent from the policy’s language, unless

the policy is ambiguous. Id. We have said “[a]n ambiguity exists when,

after application of our relevant rules of interpretation, a genuine

uncertainty results as to which of two or more meanings is proper.” Id.

We construe the policy provision in favor of the insured when the

provision is ambiguous. Id. With these principles in mind, we address

each issue.

       A. Legally Entitled to Recover.        On the first issue, American

Family argues a jury found Schmidt was not liable for the collision with

Dennis.    Because the jury found Schmidt was not liable, American

Family insists the Hagenows are not legally entitled to recover.           The

Hagenows respond that Schmidt was negligent but was absolved of

liability by her sudden emergency defense, a type of legal excuse. The

Hagenows argue Schmidt’s legal excuse does not affect their legal

entitlement to recover under the UM coverage.

       We have said that UM coverage applies when four conditions are

met:

       (1) the injured person is an insured under the insurance
       policy provisions; (2) the injured person is “legally entitled to
       recover damages from the owner or operator of an uninsured
       motor vehicle;” (3) the injury to the insured was “caused by
       accident;” and (4) the injury arose “out of the ownership,
       maintenance, or use” of an uninsured motor vehicle.

Id. at 575 n.1 (quoting Iowa Code § 516A.1 (2001)). The terms of the

Hagenows’ UM policy with American Family are consistent with these

conditions. The insured carries the burden under the “legally entitled to

recover” requirement to prove the uninsured motorist was liable and the

extent of the insured’s damages. Id. at 584 n.3. Therefore, the insured

may satisfy the “legally entitled to recover” condition by either obtaining

a valid judgment against the uninsured motorist, or by bringing an
                                       7

action against the insurer.   See id.; see also Leuchtenmacher v. Farm

Bureau Mut. Ins. Co., 461 N.W.2d 291, 294 (Iowa 1990) (concluding in an

underinsured-motorist-coverage (UIM) case that there was “nothing in

the language of [our UM and UIM statute]” suggesting that legal

entitlement to recovery “must be determined by a separate lawsuit”). We

have explained the insured need only “prove the damages he or she

would have been entitled to recover had a lawsuit against the

underinsured motorist been taken to judgment.” Waits v. United Fire &

Cas. Co., 572 N.W.2d 565, 574 (Iowa 1997). The same is true when the

motorist is an uninsured motorist.

      The phrase “legally entitled to recover” contained in the Hagenows’

UM provision is taken from Iowa Code section 516A.1, which requires

that UM coverage must provide “for the protection of persons insured

under such policy who are legally entitled to recover damages from the

owner or operator of an uninsured motor vehicle.” Iowa Code § 516A.1

(2013) (emphasis added). We interpret the UM provision to be consistent

with the legislature’s intent in enacting the UM statute. See Otterberg v.

Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 31 (Iowa 2005) (concluding

claimant was not legally entitled to recover under either his UM coverage

or Iowa Code section 516A.1); Waits, 572 N.W.2d at 573 (explaining the

phrase “legally entitled to recover” in UIM coverage is interpreted to be

consistent with intent behind UIM statute); see also Wetherbee v. Econ.

Fire & Cas. Co., 508 N.W.2d 657, 659 (Iowa 1993) (“[A]n insurer cannot

offer underinsured motorist coverage more restrictive than that required

by the statute.”).   In doing so, we interpret the phrase liberally, not

literally. Waits, 572 N.W.2d at 573.

      We have never addressed the precise issue presented here.       We

have, however, addressed other situations in which the insured sought to
                                     8

recover UM or UIM benefits despite being “unable to recover from the

negligent tortfeasor.”   See Otterberg, 696 N.W.2d at 29 (noting liberal

interpretation of “legally entitled to recover” has in several cases enabled

an insured to recover under UM coverage despite inability to recover from

the tortfeasor).   In Leuchtenmacher, we held a judgment against the

underinsured tortfeasor was unnecessary to seek UIM benefits from an

insurer. 461 N.W.2d at 294.

      In Waits, an insured motorist settled with an underinsured

motorist, then sought UIM benefits. 572 N.W.2d at 568. The insurer

resisted, arguing Waits was not legally entitled to recover because she

had given the underinsured motorist a release instead of giving a

covenant not to sue. Id. at 572. We rejected the insurer’s argument,

reasoning that Waits could still show the damages to which she would

have been entitled had a tort suit been pursued. Id. at 574.

      In another case, we wrestled with the issue “whether an insured is

entitled to recover underinsured motorist benefits from her insurance

company when the insured has no right to bring an action in her own

name against the underinsured motorist.”       Wetherbee, 508 N.W.2d at

658. After her husband James was killed in a car accident, Katherine

Wetherbee sought to recover loss-of-consortium damages under the

couples’ UIM coverage. Id. The insurer insisted that she was not legally

entitled to recover because only the administrator of James’s “estate

could bring an action for post-death loss of consortium.” Id. According

to the insurer, because Katherine was not the estate’s administrator—in

fact, no estate had been opened—she could not recover the damages. Id.

at 658–59.

      In rejecting the insurer’s interpretation of the phrase, we opted for

an interpretation consistent with the legislature’s purpose in requiring
                                     9

UIM coverage and its intent in using “legally entitled to recover.” See id.

at 661 (finding insurer’s interpretation inconsistent with the legislature’s

purpose and intent). The purpose of the UIM statute was, we explained,

to compensate “the victim of an underinsured motorist to the same

extent as if the underinsured motorist were adequately insured.” Id. at

660.   We concluded the “only reasonable interpretation” of the phrase

was “that it means the insured must have suffered damages caused by

the fault of the underinsured motorist and be entitled to receive those

damages.” Id. at 661.

       In Otterberg, we held an insured was not legally entitled to recover

UM benefits because the injuries sustained were covered under the

workers’ compensation system. See 696 N.W.2d at 31. We distinguished

Wait and Wetherbee, explaining that in those cases the “law provided for

an underlying claim, but the claim could not be enforced by the insured

under the particular circumstances.” Id. at 30. By contrast, Otterberg

never had a legal right to recovery against a coemployee. See id. Even

noting the liberal interpretation given to the phrase “legally entitled to

recover,” we said it could not “be stretched so far as to cover situations

when an insured could have never recovered from the uninsured

motorist because the law did not provide for any recovery.” Id.

       In this case, the law provided a mechanism for the Hagenows to

pursue their underlying negligence claim.     They filed a civil tort claim

against Schmidt, and after a period of discovery, proceeded to present

their claim through a jury trial.   Unfortunately for the Hagenows, the

jury, applying principles of negligence and fault, found Schmidt was not

negligent.   As American Family points out, despite the liberality with

which this court has interpreted the phrase “legally entitled to recover,”

the liability requirement has never been abandoned.        Indeed, despite
                                     10

rejecting   the   insurer’s    attempts   to   avoid    paying    benefits    in

Leuchtenmacher, Wetherbee, and Waits, it was recognized that the

insured’s   entitlement   to   recovery   depended     on   establishing     the

underinsured motorist’s liability.   See, e.g., Waits, 572 N.W.2d at 574

(noting Iowa Code section 516A.1 “requires the insured to prove the

damages he or she would have been entitled to recover” in a lawsuit);

Wetherbee, 508 N.W.2d at 661 (concluding “the insured must have

suffered damages caused by the fault of the underinsured motorist”);

Leuchtenmacher, 461 N.W.2d at 293 (noting the statute is written to

protect consumers and applies to a situation in which the insured is

entitled to recover but “the liability of the person legally responsible is

not insured” (citation and internal quotation marks omitted)).

      Undaunted, the Hagenows point to a respected scholar on UM

insurance who they contend argues that tort immunities and other

limitations available to a tortfeasor should not prevent an insured from

recovering UM coverage from an insurer.          Alan I. Widiss, Uninsured

Motorist Coverage: Observations on Litigating over When a Claimant Is

“Legally Entitled to Recover,” 68 Iowa L. Rev. 397, 426 (1983) [hereinafter

Widiss] (arguing a tort immunity or other limitation should not preclude

claims under UM coverage on the ground the insured “would not be

legally entitled to recover from the tortfeasor”); see also 1 Alan I. Widiss

& Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance

§ 7.14, at 432 (3d rev. ed. 2005) [hereinafter Uninsured and Underinsured

Motorist Insurance] (making the same argument).             According to the

Hagenows,     Professor   Widiss’s   commentary        supports   their    legal

entitlement to recovery of UM benefits in spite of Schmidt’s successful

sudden emergency defense.
                                    11

      Professor Widiss challenges insurers’ use of an uninsured

motorist’s tort-immunity defense in proceedings to recover UM benefits.

See Widiss, 68 Iowa L. Rev. at 426. He contends that the tort immunity

absolved only the tortfeasor from liability; the UM coverage is not related

to the tortfeasor, so the tort immunity should not affect whether the

insurer pays the UM benefit.    Id. Professor Widiss argues further the

question whether a tort immunity can protect an insurer should be

resolved by balancing the public policy in favor of protecting victims of

uninsured drivers against the public policy interests behind tort

immunities. See id. at 426–27. Also, he points to the gradual abolition

of some tort immunities, which he argues indicates an increasing

concern for compensating tort victims.     Id. at 427.   Professor Widiss

concludes, “Determining the rights of an insured under the uninsured

motorist coverage in terms of whether the tortfeasor was negligent,

without regard to a tort immunity, is consistent with this trend.” Id. at

427 (emphasis added).

      The Hagenows’ reading of Professor Widiss’s commentary is flawed

for at least two reasons. First, the sudden emergency defense is not a

type of immunity, but rather a distinct defense that, if proved, excuses

the alleged tortfeasor from liability.   Compare Vasconez v. Mills, 651

N.W.2d 48, 54 (Iowa 2002) (explaining the fact finder may excuse an

alleged tortfeasor’s violation of statutory law if the alleged tortfeasor

proves he or she was confronted with an unforeseen emergency), with W.

Page Keeton, et al., Prosser and Keeton on The Law of Torts § 131, at

1032 (5th ed. 1984) (“An immunity is a freedom from suit or liability.”).

Unlike immunity defenses, which for policy reasons prevent a protected

party from being held liable, the sudden emergency defense recognizes

the difficulty a person has considering reasonable alternatives when
                                    12

confronted by an unforeseen emergency and therefore modifies the

standard of care. Compare Hook v. Trevino, 839 N.W.2d 434, 445 (Iowa

2013) (declining to extend state volunteer’s immunity to the state after

considering policy consequences, among other considerations); Turner v.

Turner, 304 N.W.2d 786, 787–89 (Iowa 1981) (abrogating absolute

parental immunity for negligence after considering “the values which that

doctrine purports to foster”), with Vasconez, 651 N.W.2d at 54

(explaining the rationale of the sudden emergency defense); Jones v.

Blair, 387 N.W.2d 349, 352 (Iowa 1986) (noting a person acting in an

emergency “is not held to the same standard of care as one who has had

time to reflect”). Thus, the Hagenows’ argument misses the mark as a

definitional matter.

      Furthermore, though Professor Widiss is critical of immunity

defenses, he accepts that the uninsured motorist must be negligent for

the insurer to pay UM benefits. A broader review of his work confirms

his focused critique is not directed at defenses that challenge the merits

of the insured’s negligence case. For instance, in a well-known treatise,

Professor Widiss declares that “[t]he language ‘legally entitled to recover’

is undoubtedly intended to mean that a claimant is only entitled to

indemnification for injuries resulting from the tortious conduct of an

[uninsured] motorist.” 3 Uninsured and Underinsured Motorist Insurance

§ 34.1, at 168 (footnotes omitted). The treatise also counsels that the

right to recover UM benefits is “contingent on the insured being legally

entitled to recovery because the injuries were caused by the negligent

operation of” a vehicle. 1 Uninsured and Underinsured Motorist Insurance

§ 7.2, at 363 (emphasis added).

      Notably, insurers’ use of other types of defenses to liability goes

unchallenged by Professor Widiss and other leading commentators.
                                     13

Although   Widiss’s   treatise   questions   the   overall   fairness   of   the

contributory negligence defense, in light of the widespread adoption of

comparative fault, it does not quibble with the defense’s use by insurers

in states where the defense is available. See id. § 7.4, at 378–81. In

addition, Widiss does not challenge insurers’ use of an available workers’

compensation system, so long as the insured is compensated by workers’

compensation.    See 3 Uninsured and Underinsured Motorist Insurance

§ 34.2, at 178–79.

      Noting that comparative fault has replaced contributory negligence,

another well-known treatise approves of insurers using comparative fault

as a defense to paying UM benefits because “the purpose of uninsured

. . . motorist insurance is to put the claimant in the same position the

claimant would have been had the tortfeasor been adequately insured.”

6 Jeffrey E. Thomas & Christopher J. Robinette, New Appleman on

Insurance Law Library Edition § 65.03[2], at 65-65 (2013) [hereinafter

New Appleman]; see Rodman v. State Farm Mut. Auto. Ins. Co., 208

N.W.2d 903, 909 (Iowa 1973) (explaining the purpose of the UM statute

is to provide the insured the same protection he or she would have had if

the tortfeasor had been minimally insured).           Hence, “because the

tortfeasor would be entitled to raise the defense and obtain a reduction

in damages, it is appropriate for the insurer to receive the same benefit.”

New Appleman § 65.03[2], at 65-65.        Thus, although Professor Widiss

pointedly challenges insurers’ use of immunity defenses, he and other

leading commentators do not question insurers’ use of other defenses to

negligence in deciding whether an insured is legally entitled to recover.

On the contrary, it is accepted that “[a]n insurer may assert as defenses

to a claim under [uninsured] coverage the nonnegligence of the
                                    14

uninsured.” 9 Steven Plitt, et al., Couch on Insurance 3d § 123:16, at

123-58 (rev. ed. 2008).

      High courts in other states hold defenses aimed at negating an

element of the negligence claim are part of the determination whether an

insured is legally entitled to recover.   See, e.g., Ex parte Mason, 982

So. 2d 520, 521 (Ala. 2007) (rejecting insurer’s use of statute of

limitations defense but stating “the uninsured motorist’s substantive

defenses are available to the insurer”); Williams v. State Farm Mut. Auto.

Ins. Co., 641 A.2d 783, 787 (Conn. 1994) (“Whether the uninsured

motorist was legally liable must be determined in light of any substantive

defenses that would have been available to the uninsured motorist.”);

Stemple v. Md. Cas. Co., 144 P.3d 1273, 1275–76 (Kan. 2006) (explaining

insurer can use “the substantive defenses that would have been available

to the uninsured motorist” (citation and internal quotation marks

omitted)); Brown v. Lumbermens Mut. Cas. Co., 204 S.E.2d 829, 834 (N.C.

1974) (“Any defense available to the uninsured tort-feasor should be

available to the insurer.”); Snyder v. Am. Family Ins. Co., 871 N.E.2d 574,

581 (Ohio 2007) (observing that insurers should have the same defenses

available to them as the allegedly negligent uninsured motorist); Vega v.

Farmers Ins. Co. of Or., 918 P.2d 95, 102–04 (Or. 1996) (explaining

possible reasonable interpretations of the phrase “legally entitled to

recover” and holding it requires the insured to prove elements of

negligence and overcome defenses).        Even a case cited by Professor

Widiss for its criticism of immunity defenses and relied on by the

Hagenows interprets the phrase “legally entitled to recover” to mean “that

the claimant must be able to prove the elements of her claim necessary

to entitle her to recover damages.” Allstate Ins. Co. v. Elkins, 396 N.E.2d

528, 531 (Ill. 1979); Widiss, 68 Iowa L. Rev. at 425; see also Karlson v.
                                    15

City of Okla. City, 711 P.2d 72, 74–75 (Okla. 1985) (rejecting use of

governmental immunity defense by insurer while noting requirement that

insured establish uninsured motorist’s fault); accord 3 Uninsured and

Underinsured Motorist Insurance § 34.2, at 175. Many courts and leading

commentators agree the determination whether an insured is legally

entitled to recover includes considering the defenses available to the

uninsured motorist.    It follows that if an uninsured motorist is not

negligent, because a defense negated an element of the negligence claim

or otherwise, then the insured motorist is not legally entitled to recover

UM benefits from the insurer.

      At the underlying civil trial, Schmidt asserted the defense of

sudden emergency, contending that although she pled guilty to violating

a traffic ordinance in connection with the collision with Dennis, she was

not liable because she suffered a stroke prior to the collision. The Iowa

State Bar Association Civil Jury Instruction 600.75, captioned “Sudden

Emergency,” which is to be used “in conjunction with an instruction on

legal excuse where a statutory violation is claimed,” provides:

            A sudden emergency is an unforeseen combination of
      circumstances that calls for immediate action or a sudden
      or unexpected occasion for action. A driver of a vehicle
      who, through no fault of [his] [her] own, is placed in a
      sudden emergency, is not chargeable with negligence if the
      driver exercises that degree of care which a reasonably
      careful person would have exercised under the same or
      similar circumstances.

Iowa State Bar Ass’n, Iowa Civil Jury Instruction 600.75 & cmt. (2012)

(emphasis added). The Iowa bar association instruction on legal excuse

provides:

      (Name) claims that if you find that [he] [she] violated the law
      in the operation of [his] [her] vehicle, [he] [she] had a legal
      excuse for doing so because (excuse) and, therefore, is not
      negligent. “Legal excuse” means that someone seeks to avoid
                                         16
       the consequences of [his] [her] conduct by justifying acts
       which would otherwise be considered negligent. The burden
       is upon (name) to establish as a legal excuse:

              1.     Anything that would make complying with the
                     law impossible.

              2.     Anything over which the driver has no control
                     which places [his] [her] vehicle in a position
                     contrary to the law.

              3.     Failure to obey the law when the driver is
                     confronted with sudden emergency not of [his]
                     [her] own making.

              4.     An excuse or exception provided by the law.

             If you find that (name) has violated the law as
       submitted to you in other instructions, and that [he] [she]
       has established a legal excuse for doing so under any one of
       the four definitions set forth above, then you should find that
       (name) was not negligent for violating the particular law
       involved.

Id. 600.74 (emphasis added). 2
       The sudden emergency instruction “is merely an expression of the

reasonably prudent person standard of care.” Weiss v. Bal, 501 N.W.2d

478, 481 (Iowa 1993). Therefore, a driver confronted with an emergency

must still exercise reasonable care. Bannon v. Pfiffner, 333 N.W.2d 464,

470 (Iowa 1983).          The decision whether a person has exercised
reasonable care during an emergency is typically for the jury.                See id.

Having been given instructions similar to the uniform instructions, the

jury in the negligence case between the Hagenows and Schmidt

concluded Schmidt exercised reasonable care under the circumstances.

After the trial, in response to the question on the verdict form, “ ‘Was the

       2We    noted in Hagenow v. Schmidt that “[t]he Restatement (Third) of Torts:
Liability for Physical and Emotional Harm includes a separate section for disability—
which does not require advanced awareness or a rapid response.” 842 N.W.2d at 676.
We observed that section 11(b) on sudden incapacitation best fit the facts of the
underlying negligence action. See id.; see also Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 11(b), at 130 (2010). Schmidt, however, did not request a
jury instruction based on that provision. See Hagenow, 842 N.W.2d at 677.
                                     17

defendant, Betty Schmidt, at fault?,’ ” the jury answered “ ‘no.’ ”

Hagenow v. Schmidt, 842 N.W.2d 661, 669 (Iowa 2014).

      Proof of the uninsured motorist’s liability is an element that must

be established by the insured to recover UM benefits. See Petersen, 679

N.W.2d at 584 n.3 (explaining an insured establishes he or she is legally

entitled to recover by proving the uninsured motorist’s liability and

damages). Permitting the Hagenows to recover UM benefits when they

were unable to show Schmidt’s fault would be inconsistent with the

purpose of UM insurance. See Rodman, 208 N.W.2d at 909 (“It is plain

the legislature intended to assure protection to an insured against

motorists whose liability to the insured is not covered.”). Because the

jury found Schmidt was not at fault for the collision with Dennis, we hold

the Hagenows are not legally entitled to recover UM benefits from

American Family.

      B. Uninsured Motor Vehicle.         Even if we were to conclude the

Hagenows were legally entitled to recover, the Hagenows would still have

the burden of showing that Schmidt was an “uninsured motorist” as

defined under their insurance policy. See Wetherbee, 508 N.W.2d at 660

(observing that in addition to being legally entitled to recover, the insured

must satisfy the insurance policy’s other terms and conditions).         The

Hagenows concede there is only one provision in their UM policy under

which Schmidt’s vehicle could have been defined as uninsured. Under

that provision, an uninsured motor vehicle is one that is “[i]nsured by a

bodily injury liability bond or policy at the time of the accident but the

company denies coverage.”       The Hagenows argue Schmidt’s vehicle,

which was undisputedly covered by liability insurance at the time of the

accident, was uninsured under this provision.
                                   18

      We acknowledge American Family’s capacity as both Schmidt’s

liability insurer and the Hagenows’ UM carrier adds a unique wrinkle to

the interpretative exercise. However, for our analysis, we must separate

the two different legal capacities involving American Family and the

respective insurance policies.    American Family, in its capacity as

Schmidt’s liability insurer, is best thought of as a distinct liability

insurer. The Hagenows argue that by refusing to pay UM benefits under

their policy, American Family has made Schmidt’s vehicle into an

uninsured motor vehicle for purposes of the UM policy.

      We believe the Hagenows’ policy is susceptible of only one

reasonable interpretation. In the Hagenows’ policy, the terms “[w]e, us,

and our” refer to American Family in its capacity as the Hagenows’ UM

insurer. Under the liability coverage section of the Hagenows’ insurance

policy, for example, the policy states, “We will pay compensatory

damages . . . .” It also explains, “We will defend any suit . . . .” Also,

their UM policy provides, “We will pay compensatory damages for bodily

injury which an insured person is legally entitled to recover from the

owner or operator of an uninsured motor vehicle.”

      In the definition of an “uninsured motor vehicle” in the Hagenows’

policy, however, the denial of coverage is made by “the company.” We

have said “[a] cardinal rule of contract interpretation is that the use of

substantially different language in provisions of a contract must have

been intentional and must be recognized by a reviewing court.”

Greenfield v. Cincinnati Ins. Co., 737 N.W.2d 112, 120 (Iowa 2007). Thus,

the Hagenows’ UM policy draws a clear distinction between its capacity

as their UM insurer—by using “[w]e, us, [or] our”—and other liability

insurers, or in this case, American Family in its capacity as Schmidt’s

liability insurer—by using “the company.”
                                     19

      And this makes sense.      The determination whether an allegedly

negligent motorist is covered by insurance turns on the terms and

conditions of that allegedly negligent motorist’s liability insurance policy,

which in many cases will be provided by another insurance company.

American Family, acting as the Hagenows’ insurer, plays no role in

deciding whether another motorist is insured under the terms of that

motorist’s policy. In other words, acting as the Hagenows’ UM insurer,

American Family’s denial that the UM benefits must be paid to the

Hagenows under the UM policy has no effect on whether Schmidt’s

vehicle was uninsured for purposes of the UM policy. The determination

whether the allegedly uninsured motorist is covered by insurance is

made by that person’s insurance company, “[t]he company.”

      To be more concrete, “the company” in the Hagenows’ UM policy

refers in this case to American Family in its capacity as Schmidt’s

liability insurer.   In acting as Schmidt’s liability insurer, American

Family obviously had to decide whether to cover Schmidt’s liability

according to the terms and conditions of Schmidt’s liability policy. Had

American Family, in its capacity as Schmidt’s liability insurer, denied her

coverage, then Schmidt’s vehicle would have been, for purposes of the

Hagenows’ policy, uninsured.

      But American Family did not deny Schmidt was covered by

insurance; it denied she was liable for the accident with Dennis and

raised an affirmative defense.       Interpreting nearly identical policy

language in Petersen, we explained UM coverage applied when the vehicle

was “insured but the insurer denies coverage.” 679 N.W.2d at 580. It

was clear, we said, these “provisions contemplate coverage to include

situations . . . when the victim could not recover under the tortfeasor’s

liability policy due to an exclusion.” Id. Presumably finding no exclusion
                                     20

with which to deny her coverage, American Family denied Schmidt’s

liability and defended her in the negligence case with the Hagenows, as it

was contractually obligated to do.

      Neither American Family’s defense of Schmidt in one capacity, nor

American Family’s denial she was an uninsured motorist in another

capacity, transformed Schmidt into an uninsured motorist.        Because

American Family, acting as Schmidt’s insurer, covered Schmidt, she was

not an uninsured motorist for purposes of the Hagenows’ UM coverage.

Therefore, even if the Hagenows had been legally entitled to recover, they

could not satisfy the terms of their UM policy entitling them to benefits.

The Hagenows have not met their burden that they are legally entitled to

recover damages from the owner or operator of an uninsured motor

vehicle.

      IV. Conclusion.

      We conclude the district court erred by denying American Family’s

motion for summary judgment. The Hagenows were not “legally entitled

to recover” under Iowa Code section 516A.1 or their UM policy.         In

addition, Schmidt’s vehicle was not an uninsured motor vehicle under

the terms of the Hagenows’ UM provision. Accordingly, the district court

is reversed, and the matter is remanded to the district court for entry of

judgment in favor of American Family.

      REVERSED AND REMANDED.
