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[T] American Economy Insurance Company v. Simon2/12/2003
that at issue here. American Family Mut. Ins. Co. v. DeGroot, 543 N.W.2d 870, 872 (Iowa 1996); Essex Ins. Co. v. Fieldhouse, Inc., 506 N.W.2d 772, 775 (Iowa 1993); AMCO Ins. Co. v. Haht, 490 N.W.2d 843, 845 (Iowa 1992); Altena v. United Fire & Cas. Co., 422 N.W.2d 485, 490 (Iowa 1988); McAndrews v. Farm Bureau Mut. Ins. Co., 349 N.W.2d 117, 120 (Iowa 1984). Coverage has also been excluded under these circumstances even if the insured acted in self-defense. McAndrews, 349 N.W.2d at 120.
Our review of the cases upon which American relies indicates that none involved the savings self defense clause included in Russ, Inc.'s policy. In the absence of such a provision, we do not find the reasoning in McAndrews controls the outcome here. To hold otherwise would render the savings language of the policy meaningless under these circumstances.
In an affidavit filed with his resistance to American's motion for summary judgment Simon claims Schurman was the first aggressor and he struck or otherwise subdued Schurman to protect himself and others. We find these assertions and the evidence supporting them sufficient to generate a genuine issue of material fact precluding summary judgment. The trial court erred by concluding otherwise. We therefore reverse on this issue.
Like the trial court, we find Schurman's claims that Simon's presence constituted a "dangerous condition" on the premises insufficient as a matter of law to implicate Russ, Inc.'s duty to Schurman under any theory of premises liability. The duty implicated by Simon's allegation concerns the control of third-party conduct, not the physical condition of the premises or activities of the possessor. As such, it states something other than a premises liability claim. See Morgan v. Perlowski, 508 N.W.2d 724, 727 (Iowa 1993). We affirm on this issue.
Lastly, we decline to consider Russ, Inc.'s reasonable expectation argument because it was neither raised nor considered in the trial court. See DeVoss, 648 N.W.2d at 63.
The judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings in conformity with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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