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MATTER OF ESTATE OF SYLVESTER2/19/1997
rer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made. . . .
For reasons discussed in the following division, loss-of-consortium damages are not subject to the insurer's indemnity rights. Cincinnati argues, however, that the district court did not even have jurisdiction to determine what part of the settlement would be allocated to loss of consortium and what part to a wrongful death recovery by Sylvester's estate.
Lauer, however, offered nothing for the wrongful death claim by Sylvester in the settlement, and no reasonable fact finder could conclude that the $35,000 included anything for Sylvester's wrongful death claim. Here, Sylvester's estate paid $800,000 in damages to Lauer for Sylvester's negligence. The consortium claimants assert, and Cincinnati does not dispute, that Sylvester struck Lauer entirely on Lauer's side of the highway. Under these facts, there is no chance that Sylvester's estate would be allocated any of the $35,000; he was clearly over fifty percent at fault.
We have held that the district court has original jurisdiction over all three aspects of such a claim: the common-law tort claim, the consortium claim, and the indemnity claim. Shirley, 508 N.W.2d at 716. In accordance with this rule, the district court thus made a threshold finding that these settlement proceeds were solely for the loss of consortium and thereby abrogated the need for referral to the industrial commissioner. It would be an exercise in futility and an unwarranted delay for these consortium claimants if we were to require that the industrial commissioner make an allocation that, as a matter of law, could not include any damages that would be subject to Cincinnati's subrogation claim.
This case is unique because the worker's own claim lacks any chance of success. It must therefore be distinguished from both Shirley and Mata v. Clarion Farmers Elevator Cooperative, 380 N.W.2d 425 (Iowa 1986), cases on which Cincinnati relies. In Shirley the employee who received workers' compensation benefits had been injured by a third-party driver who ran a stop sign. 508 N.W.2d at 713. The parties attempted to structure the settlement to award the worker a relatively small amount of the payment by the third party and a large amount to his family's consortium claim. We agreed with the insurance company that " here seem to be a clear effort to simply avoid the workers' compensation lien to the detriment of the Employer and Insurance Carrier and in contravention of Iowa Code ยง 85.22." Shirley, 508 N.W.2d at 713. We concluded that such an arrangement, without the consent of the insurer or the approval of the industrial commissioner, was not valid under Iowa Code section 85.22(3). Shirley, 508 N.W.2d at 717.
In Mata a worker who was injured while repairing a grain elevator sued third parties. The parties attempted to arrange a method of settlement by which the claims attributed to the third-party recovery would be reduced in favor of increased damages under the loss-of-consortium claim. We held that this would not be permitted; the settlement could not impair the insurer's right of indemnity "by the third party's simply paying the family members for loss of consortium and having the employee himself dismiss his third-party claim. . . ." Mata, 380 N.W.2d at 429.
We conclude that the fund in question was purely for loss of consortium, to which Cincinnati's indemnity claim does not attach. The district court therefore had jurisdiction to approve the settlement. Shirley, 508 N.W.2d at 716.
II. Indemnification from Loss-of-Consortium Proceeds.
Cincinnati apparently concedes on appeal that, i
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