*1 damages any be so he would not allowed

recovery injuries solely by for caused Shel- ROWEN, Mary Farnsworth, Marla E. For labarger city. city’s and not the attor- Policyhold Themselves Other and all ney requested and received assurance from ers-Members of LeMars Mutual Insur attorney plaintiff’s court before Iowa, Company ance and for Them plaintiff claiming was commencedthat trial Similarly selves and All Others Situ ated, damages only pain suffering Appellants, for his until he the time he was arrested was from reason, jail. this released from For LeMARS MUTUAL INSURANCE denying city’s post-trial trial court IOWA, Appellee, COMPANY OF emphasized: claim for credit Alesch, Alice Throughout Executor of the proceedings, these the court Estate of Alesch, Alesch, John John H. meticulously separated permitted out and a/k/a Clyde Eastman, Alesch, Alice W. M.H. jury the matter for consideration Tappan, Tappan, W.K. P.G. Vander damages only proved damages those meer, Gearke, M.H. John M. Vollmar plaintiff as result of resulted his Dull, and Burton and The Iowa Mutual being city jail confined in the Des Moines DeWitt, Company Iowa, Insurance period with his state of inconsistent Brown, Raymond Couch, A. William No evidence or health. consideration George Howes, Smith, S. Carl J. Car permitted by jury any other Smith, Alesch, Inc., man Marga G. injuries damages or sustained Sevenich, Kay Buffington ret A. Mark plaintiff, any permitted nor was evidence Warnock, and Jane M. Defendants. hospital, actual medical related No. 83-1131. expenses plain- that were incurred as tiff a result of the accident which Supreme of Iowa. Court prior occurred to his aforementioned in- 14, 1984. Nov. city jail. carceration the Des Moines Plaintiff was not even allowed introduce hospital evidence medical and bills

which were incurred after he was released jail. city entirely

from has failed to $22,000 plaintiff that the

establish has re- damages exceeds the

ceived total he would

have been entitled to had the recover ver- measured all injuries

dict he incurred

as a result of the collision and its after-

math.

We do not retreat from our adherence to pro determining tanto rule for what

part of a must settlement be credited recovery.

against damage simply city no basis in

hold established crediting any part record for

this against

Shellabarger plaintiff’s settlement damages proximately caused city’s negligence.

DECISION OF THE COURT OF AP- VACATED;

PEALS DECISION OF DIS-

TRICT COURT AFFIRMED.

Michael R. D.R. Franck of Mundt and Franck, Mundt, Franck, Denison, Nepper & appellants. Klass, Robert D. Whicher & Mishne of Mishne, City, appellee Sioux Company Mutual Insurance of Iowa. Gen., Miller, Atty. Thomas J. and Fred Haskins, Gen., Atty. M. Asst. for amicus curiae Commissioner of Insurance. C.J., REYNOLDSON, Considered McCORMICK, LARSON, SCHULTZ, CARTER, JJ.

McCORMICK,Justice. appeal This is fourth a derivative brought by policyholders action of LeMars (LeMars) Company Mutual Insurance to an- nul the takeover of LeMars capacity Iowa Mutu- their policyholders, objected as (Iowa Company al Insurance of DeWitt plan, hearing and a was held. The Mutual). appeals reported Prior are at 230 court accept decided to and or- (Iowa 1975), N.W.2d 905 282 N.W.2d 639 out, dered it carried reserving jurisdiction (Iowa 1979), (Iowa and 347 N.W.2d 630 police, amend, in the case extend, “to 1984). In the most recent this court *3 disputes and to resolve concerning [the] arising decided certain financial issues plan, any pursuant elections held thereto, separation from the court-ordered of the any and of matters requiring approv- court companies. present appeal two is tak- al appealed thereunder.” Plaintiffs by plaintiff policyholders en the from the this court raised an issue finality of of the district court’s remaining decision of the jurisdictional district court order. The is- case, issue in the an establishing order a sue parties was briefed the and was plan for election of a new board of di- ordered submitted with appeal. the rectors for LeMars. We find that we have I. Appeals Jurisdiction. are jurisdiction appeal of the and that the dis- right only available orders, as of from final trict court did not abuse its discretion in jurisdiction appeals we lack from adopting plan the proposed by the interlocutory permission orders unless to LeMars interim board. appeal granted. is Iowa R.App. See 1 and In its initial ordering separation decree Ordinarily a final conclusively Mutual, of LeMars from Iowa the district adjudicates rights all of the parties. court appoint stated it would an interim stands, If it put the court par cannot govern board of directors to LeMars. The original positions. ties their Shoemaker court also said: Muscatine, City 275 N.W.2d 208 practicable, As soon as the court shall (Iowa 1979). supervise also order and the election of a recognized We have that it is not new board of directors for LeMars Mutu- always clear an whether order is final. To al. Interim eligible directors shall be to allow for the small fraction of eases where succeed themselves. The successor party may improvidently attempt ap an board shall not be elected until the inter- peal right as of from an order that is im opportunity board has had full to as- interlocutory, determined to be we added sess the status of LeMars Mutu- Appellate 1(c) Iowa Rule of Procedure to al, consult with the Iowa insurance com- permit papers in those cases to be missioner, competent management retain application interlocutory treated as an for the company and imple- establish and appeal under rule 2. In doing, so we did plan ment a separation the careful change determining not the standard for LeMars Mutual and Iowa Mutual. interlocutory when grant review should be portion This of the decree was affirmed in ed. See In Long, Interest appeal. the second See N.W.2d at 657. Because interlocuto upholding In provision this court said ry granted very review is sparingly, no policy keep traditional of courts to party should take an right as of corporate hands off give way affairs had to from interlocutory hope order it responsibility to the equity of an court to will be saved from application dismissal fashion unusual relief to meet unusual cir- 1(c). of rule separation cumstances. Id. The companies having subsequently been com- present case, In the district pleted, the time came for the district court court resolved the final litiga issue to decide the manner in which the new tion but did not parties foreclose the from LeMars board was to be elected. raising additional issues the course LeMars, board, through interim implementation its de- of of the election If plan vised an election that plaintiffs was submitted precluded are challenging from Plaintiffs, approval. now, the court for plan however, in the objections their will years it more than two the district court’s took moot because become Finally in separate companies. plan when the the two jurisdiction terminates the LeMars interim board plan If were December 1982 out. has been carried complete determined that its tasks were out, not be able to the court would carried adopt and that the court should positions. former parties to their return supervising the election of a new board. finality only if it adjudication lacks the district court makes a difference plan proposed by LeMars called for jurisdiction to decide issues that reserved members, in board size to nine a reduction adjudication being may arise while the by- the number called for the LeMars adjudica- implemented. We find that The interim board was to laws. be reduced falls within tion is final because the case resignation that size attrition or may have more than the rule that case members, necessary. if named Board Green v. Advance See final order. one categories into three members were divided *4 Homes, Inc., 204, (Iowa 207 293 N.W.2d replaced three directors to be at the with Willie, 884, 1980); Lyon v. 887 meeting company the in annual of each of Johnson, 1980); Johnson v. (Iowa years starting April in three N.W.2d supervised process would com- be pleted April in after which elections in analogous to the one The situation pursuant held to the LeMars were to be a Green. There a landowner sued contrac- bylaws. articles and alleging road excavation had tor that its deprived support. her farmland of lateral supervised for the elections Procedures damages mandatory in- sought She and a included notice on two occasions six des- junction requiring the land to restoration of ignated newspapers in advance of each an- prior The trial court entered its condition. meeting. eligible nual To be for nomina- favor, in- judgment in the landowner’s tion, policy- candidates would have to be cluding provision ordering the contractor holders at the time of election between 21 sup- plan restoring lateral submit nominating A years and 67 old. committee port. Upon 293 N.W.2d at 206. the con- chairman, comprised the of the board com- appeal, tractor’s this court held that the pany president, agent and a LeMars select- final. reasoned that the by ed the directors was to nominate not rights judgment settled the relative of the persons less than three nor more than six parties, “leaving only particulars the directorships for the three to be filled at equitable relief to be worked out.” Id. at meetings. the annual step 207. The district court went one fur- Policyholders propose were to candidates by adjudicating ther in the case by petition letter or addressed to the nomi- relief, particulars equitable leaving.un- of committee, nating signed by not less than only might settled that arise issues policyholders, containing five names and implementation plan. persons proposed, accompa- addresses of We hold that the district court decision by nied a statement of the candidate con- purposes appeal. was final for of Plain- establishing senting eligibility. to serve and right tiffs thus had a and we investigate A credentials committee was to jurisdiction. have eligibility qualifica- each candidate’s and report nominating to the tions commit- II. The merits the election tee. The credentials committee would in- Pursuant to its initial decree the district director, company agent, clude a a LeMars appointed persons court eleven to an inter- “prominent and a businessman or business- im board of directors for LeMars. Iowa,” residing woman in northwestern all employed management board new for Le- appointed by nominating committee. proce- Mars and and carried out established separate policyholders dures to LeMars from Iowa Mutu- All could vote at the annual meeting person by proxy, al as directed the court. Iowa Mutual or but company approximately proxies. controlled LeMars for ten could solicit could, provided company persuaded that the if it de- holder control. The court was sired, procure proxies “solicit and without a number of circumstances to which the any conditions or limitations as to their use parties agreed LeMars’ would witnesses adequate to ensure an order interest testify. argued qualified LeMars that di- representation policyholders at the rectors are difficult to find for a small meeting.” annual company LeMars, insurance like that the litigation had divided employees plan, objected Plaintiffs to the election agents so that fight a destructive asserting effectively poli- it that denied occur, control of the company might cyholders right to elect the board for an immediate election entirely of an new years. proposed three .Plaintiffs that the board would threaten continuity election, directly supervise notify- court management, president selected ing policyholder by inviting each mail and the interim board needed support continued nominations. The court would then screen directors, from the that a change the nominations to sure that sudden be none were jeopardize control company’s op- connected with the defendants in the deriv- could plaintiffs’ proposal ative suit. shortage qualified Under erations because of a subsequently court would mail experienced management ballots to peo- middle policyholders accompanied by a one ple, and that LeMars was in the midst of page statement from each nominee. The establishing system its own pro- of data receiving nine nominees the most mailed cessing which would take several ballots would be declared elected. complete. LeMars contended that an ab- *5 rupt shift of control to a new board in hearing, After a the district court over- these put circumstances would the survival plaintiffs’ objections adopted ruled company resisting plain- at risk. In plan. LeMars Plaintiffs contend the court proposal mailing tiffs’ for notices and bal- failing adopt procedures in erred to for a lots, the board asserted that mutual insur- timely They fair and election. attack the companies generally provide ance do not limitations, proxy nomination and the no- mailings such even under normal conditions provisions, super- tice the duration of court doing and that the cost of so could be as vision, corporate democracy and the lack of $500,000. much as plan. argues in the assuring reasonable means for question parties The that divides the stability of LeMars while control is re- is not whether but when LeMars should policyholders turned orderly to its democratically have a elected board. The process. special procedures limitations on election parties agree that our review imposed by delay the court would the re of the district court’s order is for abuse of poli turn of total control of LeMars to the discretion. This discretion is embraced cyholders years. argue for three Plaintiffs authority, within the court’s affirmed unnecessary that these limitations are appeal, supervise the second to the election undesirable, argues and LeMars otherwise. of a new board of directors for LeMars. by plaintiffs relied on Cases involve suc We reverse for abuse of discretion challenges bylaw cessful to restrictions on when such discretion was exercised on See, regular procedures. e.g., election grounds clearly or for reasons untenable or Minneapolis Society Brennan v. clearly to an extent unreasonable. Glenn Blind, Inc., (Minn.1979), 282 N.W.2d 515 Foods, Inc., v. Farmland and Dozier v. Automobile Club Michi gan, Mich.App. 244 N.W.2d 376 (1976). These inapposite cases are here.

The district court was convinced that the present plan proposed by the case does not involve the valid election interim board ity bylaws. policyhold- served the interests of the of LeMars Nor does it involve best by ensuring stability company mutual ers of LeMars insurance normal cir policy- the transition from court to cumstances. Instead it a mutual involves at a illegally taken over

company that was ATLAS, LTD., Plaintiff, procedures election time when democratic governance whose has place were v. complex litigation for subject of been the VIII; CO. KINGMAN WAREHOUSE years. As a result of the than ten more Hall; Ertl, Jr.; Fred F. John James W. corporation was run more litigation the Stoneman; Brown; E. David Dean W. ap- directors of those than two Bemus; Zuber; Ralph H. Gilbert Wes Charged equity court. with pointed by an sel; Yoder; Ronk; Fred J. Walter C. the transition from the duty supervise Kingman Warehouse Co. VIII Sub board, it to an elected interim board group, Defendants. impose the court to not unreasonable ERTL, Jr., Fred F. proce- election temporary restraints on Cross-Petitioner, Appellant, stability compa- ensure the dures to period. ny during the transition in the find no abuse of discretion INGERSOLL, & A SHUTTLEWORTH adopting the LeMars court’s order

district Bickel; Partnership; M. John Thomas Collins; Collins; Wayne M. C. Robert Daniel; Fry; Richard O. S. C.W. Gar AFFIRMED. berson; Hall; James W. Robert D. McDermott; Houghton; Michael O. CARTER, J., except All concur Justices Nemmers; Roby; Patrick M. James C. specially. who concurs Streit; Shuttleworth; Gary J. W.R. Car Reasoner; Pace, H. roll J. and Steven CARTER, (concurring specially). Justice Cross-Petition/Appel Defendants majority appears approve a court- lees. proxies imposed limitation on solicitation of No. 83-1209. ground in the interests on the that it is best Supreme Court Iowa. company to retain the di- *6 I part. do not be- rectors whole or Nov. equity should condition lieve that a court of membership of a the election of directors favors a

association in a manner which

particular process. elective outcome believe, however,

I that there are other do

reasons, promoting on fairness in the based justify the process, which limita- imposed. I

tions which the district court result.

therefore concur in the