city of schaller dismisses suit against general excavating inc and north american special insurance...
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In the Iowa District Court in and for SAC County
Case No: 02811 LACV019385 Title: CITY OF SCHALLER VS. GENERAL
EXCAVATING INC ET AL
NOTICE REGARDING ELECTRONIC FILINGThis case has been converted to an electronic case by Order of the Court.
New rules apply to electronically filed cases.
Because your case has been converted to an electronic case, it is now governed by Chapter 16 Rules Pertaining
to the Use of the Electronic Document Management System.What is required of you?You must register to use the Electronic Document Management System (EDMS).
If you haven't already registered, please log on to the Iowa Judicial Branch eFiling website at
https://www.iowacourts.state.ia.us/EFile to register.You are required to have a current e-mail account for use with EDMS. Registration requires you to understand
and agree to comply with the rules that govern electronic filing, contained the Chapter 16 Rules Pertaining to
the use of the Electronic Document Management System,available on the Iowa Judicial Branch eFiling website.Your registration constitutes your request for, and consent to, electronic service of court-generated documents
and documents filed electronically by other parties. When you have completed your registration, you can begin
filing and viewing documents on your case and receiving notifications of filings, and events.EXCEPTIONS: For good cause, the court may authorize you to submit a document in paper. Upon showing of
exceptional circumstances, the chief judge of the district in which a case is pending may grant you an exemption
from registering and filing electronically.You must protect private information when using EDMS.
Division VI of Chapter 16 Rules Pertaining to the Use of the Electronic Document Management System
specifies personal information that is now considered protected by the court, as well as what you must do to
keep protected personal information out of the public documents you eFile.Training and technical support are available for EDMS.
Technical support for the Iowa Judicial Branch eFiling website is available at 1-877-369-8324. If you have
questions about court procedures related to electronic filing, contact your county clerk of court office.
E-FILED 2013 MAR 13 6:05 PM SAC - CLERK OF DISTRICT COURT
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We look forward to your comments and suggestions
as we implement electronic filings in the Iowa Courts
In The Iowa District Court for the Second Judicial DistrictIn re the conversion of paper files
to electric documentsAdministrative Order
Iowa Court Rule 16.102 authorizes a chief judge to order the conversion of paper court files to an
electronic file of any case not subject to the Rules Pertaining to the Use of the Electronic Document
Management System (EDMS). It is in the best interest of all for the Court to have access via EDMS to pending
files that exist at the time a county clerk of court office implements EDMS. Accordingly:It is so Ordered that:
1. Each Clerk of Court may take action to convert paper case files that are pending and will likely
appear on a future court schedule as soon as implementation of EDMS begins in their respective
counties.
2. The Clerk shall work with the local Court to identify specific documents that are to be scanned in
each case type. Upon implementation of electronic filing in the County, the security level of
these electronic records shall be as identified by the EDMS Business Advisory Committee.
3. The Clerk shall send the Notice Regarding Electronic Filing to the attorneys and parties
appearing pro se.
4. Once notified, counsel of record or parties appearing pro se shall apply the rules pertaining to
protection of personal privacy (Iowa Ct.R.16.602 through 16.607) to all future filings in that case.
5. After being notified of commencement of the electronic filing in that County, attorneys, parties
appearing pro se and all other shall file all future filings on that case electronically.It is so Ordered:Dated 3rd day of November, 2010
/s/ Kurt L. Wilke
Kurt L. Wilke, Chief Judge of the Second
Judicial District of Iowa
E-FILED 2013 MAR 13 6:05 PM SAC - CLERK OF DISTRICT COURT
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Case ID : 02811 LACV019385 - CITY OF SCHALLER VS. GENERAL
EXCAVATING INC ET AL
Event Cd : NOOT
ALAN EDWARD FREDREGILL filed
E-FILED 2013 MAR 13 6:05 PM SAC - CLERK OF DISTRICT COURT
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We look forward to your comments and suggestions
as we implement electronic filings in the Iowa Courts
In The Iowa District Court for the Second Judicial DistrictIn re the conversion of paper files
to electric documentsAdministrative Order
Iowa Court Rule 16.102 authorizes a chief judge to order the conversion of paper court files to an
electronic file of any case not subject to the Rules Pertaining to the Use of the Electronic Document
Management System (EDMS). It is in the best interest of all for the Court to have access via EDMS to pending
files that exist at the time a county clerk of court office implements EDMS. Accordingly:It is so Ordered that:
1. Each Clerk of Court may take action to convert paper case files that are pending and will likely
appear on a future court schedule as soon as implementation of EDMS begins in their respective
counties.
2. The Clerk shall work with the local Court to identify specific documents that are to be scanned in
each case type. Upon implementation of electronic filing in the County, the security level of
these electronic records shall be as identified by the EDMS Business Advisory Committee.
3. The Clerk shall send the Notice Regarding Electronic Filing to the attorneys and parties
appearing pro se.
4. Once notified, counsel of record or parties appearing pro se shall apply the rules pertaining to
protection of personal privacy (Iowa Ct.R.16.602 through 16.607) to all future filings in that case.
5. After being notified of commencement of the electronic filing in that County, attorneys, parties
appearing pro se and all other shall file all future filings on that case electronically.It is so Ordered:Dated 3rd day of November, 2010
/s/ Kurt L. Wilke
Kurt L. Wilke, Chief Judge of the Second
Judicial District of Iowa
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Case ID : 02811 LACV019385 - CITY OF SCHALLER VS. GENERAL
EXCAVATING INC ET AL
Event Cd : NOOT
ALAN EDWARD FREDREGILL filed
E-FILED 2013 MAR 13 6:05 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 MAR 14 8:52 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 MAR 14 8:52 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 MAR 14 1:03 PM SAC - CLERK OF DISTRICT COURT
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DISCOVERY. All written discovery shall be served no later than 90 days before trial. All depositionsshall be completed no later than 60 days before trial. Or, all discovery shall be completed by .EXPERT WITNESS.a. A party who intends to call an expert witness, including rebuttal expert witnesses, shall certfiy tothe court and all other parties the expert's name, subject matter of expertise and qualifications, withinthe following time period, unless the Iowa Code requires an earlier designation (See, e.g. Iowa Code668.11):
(1) Plaintiff: 210 days before trial or . (2) Defendant/Third Party Plaintiff: 150 days before trial or . (3) Third-Party Defendant/Others/Rebuttal: 90 days before trial or .b. This section does not apply to court appointed experts.(The pleadings, discovery, and expert witness deadlines may be amended, without further leave of court, by
filing a Stipulated Amendment to Scheduling Order with the clerk listing the dates agreed upon and signed by all
counsel and self-represented litigants. Such an Amendment shall not serve as a basis for a continuance of thetrial date or affect the date for pre-trial submissions.)
PRE-TRIAL SUBMISSIONS. At least seven (7) days before trial, counsel for the parties and self-represented litigants shall:a. File a witness and exhibit listwith the clerk, serve a copy on opposing counsel and self-represented litigants and exchange exhibits. Rules governing exhibits and exhibit lists: (1) Plaintiff shall use numbers and Defendant shall use letters. Pre-trial exhibit lists shall identifyeach exhibit by letter or number and description. Exhibits shall be marked by counsel before trial. (2) Immediately before commencement of trial, the court shall be provided with a bench copy,
and the reporter with a second copy, of the final exhibit list, for use in recording the admission ofevidence. (3) In non-jury cases, immediately before commencement of trial, the court shall be provided witha bench copy of all exhibits identified on the exhibit lists. (4) Within 5 days after the filing of an exhibit list, counsel and self-represented litigants shall filewith the clerk, and serve on each party, any identification, authentication, and foundation objections tothe exhibits listed; otherwise such objections shall be deem WAIVEDfor trial purposes.b. File with the clerk, and deliver to the Trial Judge, Motions in Limine, with supporting legalauthority.
c. File with the clerk, and deliver to the Trial Judge, all proposed jury instructionsin a form to bepresented to the jury, including a statement of the case, the stock jury instruction numbers and verdictforms. (The court shall be provided the instructions in written form and by either E-mail attachment;USB Thumb drive download; or on a CD-ROM with MS Word compatible format.)d. Deliver to the Trial Judge and opposing counsel/self-represented litigants a concise trial briefaddressing factual, legal and evidentiary issues, with a citation to legal authorities.
E-FILED 2013 APR 01 10:42 AM SAC - CLERK OF DISTRICT COURT
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MOTIONS. All motions, including motions for summary judgment and except motions in limine, shallbe filed with the clerk of court's office at least 60 days before trial, with copies to the assigned judge.SETTLEMENT CONFERENCE. (Check one)
A settlement conference shall be held on . All parties with authority to settle must be present.
A settlement conference may be held upon request.
SETTLEMENTS. The parties shall have the responsibility of immediately notifying the courtadministrator of settlement.LATE SETTLEMENT FEES. Late settlement fees under Iowa Rule of Civil Procedure 1.909 areapplicable.CONTINUANCES. Continuances are discouraged and shall only be granted for good cause.Motions to continue are governed by Iowa Rule of Civil Procedure 1.910. In the event the trial date iscontinued, all time deadlines in this order and stipulated amendments shall remain in effect relative tothe new trial date unless the court approves new deadlines.
NOTICE. A failure to comply with any of the provisions of this order or an amendment to scheduling order
may result in sanctions being imposed by the court pursuant to Iowa Rule of Civil Procedure 1.602(5) including
limitation and exclusion of evidence and witnesses and payment of costs or attorney fees. The original of
this order shall be filed at the time the trial date is obtained. The court shall resolve disputes regarding oral
agreements on scheduling by reference to this scheduling order or any written amendments to this order.
Dated : 04/01/13 /s/ Kellie Orres ________________________________ Judge of the District Court/Court Designee
Original filed with the Clerk of CourtCopies to: counsel of record/self-represented litigants/assigned judge.
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Case ID : 02811 LACV019385 - CITY OF SCHALLER VS. GENERAL
EXCAVATING INC ET AL
Event Cd : OSTR
BENJAMIN B ULLEM filed
DREW J GENTSCH filed
ROSALYND J KOOB filed
ALAN EDWARD FREDREGILL filed
E-FILED 2013 APR 01 10:42 AM SAC - CLERK OF DISTRICT COURT
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IN THE IOWA DISTRICT COURT FOR SAC COUNTY
CITY OF SCHALLER,
Plaintiff,
v.
GENERAL EXCAVATING, INC. AND
NORTH AMERICAN SPECIALTYINSURANCE COMPANY,
Defendants.
No. LACV019385
NOTICE OF SERVING DISCOVERY
COMES NOW Defendant, North American Specialty Insurance Company, provides
notice of service of discovery by regular mail on the Plaintiff pursuant to Iowa Rule of Court
16.401(2). The following discovery requests were mailed to the Plaintiffs attorney at the
address shown below on June, 4, 2013:
1. Supplemental Answers to Plaintiffs Interrogatories
WHITFIELD & EDDY, P.L.C.317 Sixth Avenue, Suite 1200
Des Moines, IA 50309-4195
Telephone: (515) 288-6041
Fax: (515) 246-1474email:[email protected]
email:[email protected]
By:/s/ Drew J. Gentsch
Drew J. Gentsch AT0002739
Benjamin B. Ullem AT0008031
ATTORNEYS FOR DEFENDANT
NORTH AMERICAN SPECIALTY
INSURANCE COMPANY
E-FILED 2013 JUN 04 4:43 PM SAC - CLERK OF DISTRICT COURT
mailto:[email protected]:[email protected]:[email protected]:[email protected] -
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Original to:
Alan Fredregill
Rosalynd KoobSarah Kleber
1128 Historic 4th
Street
P.O. Box 3086Sioux City, Iowa 51102ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrumentwas served upon all parties to the above cause or toeach of the attorneys of record herein at their respectiveaddresses disclosed on the pleadings onJune 4, 2013.
By: X U. S. Mail eMail Hand Delivered Overnight Courier Certified Mail Other: ____________ FAX
Signature:/s/ Makenzie J. Moburg
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E-FILED 2013 JUL 03 9:38 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 JUL 03 9:38 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 JUL 03 9:39 AM SAC - CLERK OF DISTRICT COURT
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INTHE IOWA DISTRICTCOUR T FOR SACCOUN TY
CITYOF SCHALLER,
Plaintiffv
GENERAL EXCAVATING INC., andNORTH AMERICAN SPECIALTYINSURANCE COMPANY.
Defendants.
Law No. LACV 019385
PLAINTIFF SNOTICEOFSERVINGSUPPLEMENTALDISCOVERYRESPONSES
COMES NOW Plaintiff, City of Schaller and hereby gives notice of serving PlaintiffsFifth Supplemental Response to Defendant North American Specialty Insurance Company sRequest for Production of Documents Plaintiffs Supplemental Answers to Defendant North
American Specially Insurance Company s Supplemental Interrogatories and Plaintiffs ThirdSupplemental Answers to Defendant North American Specialty Insurance Company sInterrogatories by U.S. Mail on thisayofAugust 2013.
MEIDMAN LAW FIRM, L.L.P.
OXCAALAN EyFRED RRGILL, AT0002712ROSALYND J kjOB, AT0004380SARAH K. KLEBER, AT0004282 128Historic 4th StreetP.O. Box 3086SiouxCity, Iowa 51102Phone: 712-255-8838Facsimile: 712-258-6714Email: alan fred rea V he i d inan I aw.comEmail: ro/[email protected]: sarah. [email protected] T TORNEYS FOR PLAIN TIFF
E-FILED 2013 AUG 09 8:10 AM SAC - CLERK OF DISTRICT COURT
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Copy to via EDMS:
Benjamin B. UllemDrew J. GcntschWHITFIELD EDDY, P.L.C.317 Sixth Avenue, Suite 1200Des Moines IA 50309-4195ATTORNEYS FOR DEFENDAN TNORTHAMERICAN SPECIALTYINSURANCECOMPANY
PROOFOF SERVICE certify thata true copyof this document wasserved uoon eachof theattorneysof record of ailparlies to this action at the addresses disclosedby the pleadings on20By; Mail HHand Delivered
?Facsimile therEQtiqfkii
Signatuij
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Notice Id: 2CA101
IOWA DISTRICT COURT FOR SAC COUNTY
CITY OF SCHALLER - OTHER PIN,
Plaintiff / Petitioner,
vs.GENERAL EXCAVATING INCNORTH AMERICAN SPECIALTY INSURANCECO,
Defendant / Respondent.
Case No: 02811 LACV019385
Amended Trial Notice
The above entitled matter is hereby scheduled for jury trial on 03/18/14 at 09:00 AM .Trial will now begin on March 18th instead of March 19th
/s/ Kellie Orres ----------------------------------- Designee of the Court
Clerk to provide copies or noticeof this document to attorneys of record,parties appearing pro se and
judge if assigned
Docket Code = OSTR
E-FILED 2013 AUG 12 2:52 PM SAC - CLERK OF DISTRICT COURT
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Case ID : 02811 LACV019385 - CITY OF SCHALLER VS. GENERALEXCAVATING INC ET AL
Event Cd : OSTR
BENJAMIN B ULLEM filed
DREW J GENTSCH filed
ROSALYND J KOOB filed
ALAN EDWARD FREDREGILL filed
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E-FILED 2013 AUG 20 3:57 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 AUG 20 3:57 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 AUG 20 3:57 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 04 8:53 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 21 3:44 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 21 3:44 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 22 12:21 PM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 OCT 22 12:21 PM SAC - CLERK OF DISTRICT COURT
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1
IN THE IOWA DISTRICT COURT FOR SAC COUNTY
CITY OF SCHALLER,
Plaintiff,
v.
GENERAL EXCAVATING, INC. AND
NORTH AMERICAN SPECIALTYINSURANCE COMPANY,
Defendants.
No. LACV019385
DEFENDANT, NORTH AMERICANSPECIALTY INSURANCE COMPANY'S,
MOTION FOR SUMMARY JUDGMENTAND REQUEST FOR HEARING
COMES NOW Defendant, North American Specialty Insurance Company (hereinafter
referred to as NAS), and for its Motion for Summary Judgment to Plaintiffs Petition, states
as follows:
1. This case arises out of a construction contract between the City of Schaller
(hereinafter Schaller) and General Excavating, Inc. (hereinafter Gen Ex) for the 2008
Wastewater Improvements for the City of Schaller Section 2 Collection System
Improvements (hereinafter Project). Schaller brought suit against not only Gen Ex, but also
against the performance bond issued by North American Specialty Insurance Company
(hereinafter NAS) for alleged damages to the asphalt surface of the road due to settlement of
the utility trench.
3. In support of the present motion, NAS states that the pleadings on file, along
with the Affidavit in Support of Motion for Summary Judgment, the Statement of Undisputed
Facts, and Memorandum of Authorities in Support of Motion for Summary Judgment
demonstrate conclusively that there is no issue as to any material facts and that Schaller failed
E-FILED 2013 DEC 03 4:37 PM SAC - CLERK OF DISTRICT COURT
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2
to timely file suit under the plain language of the bond contract in this matter. As such, NAS
is entitled to summary judgment against the claims of Schaller.
WHEREFORE Defendant, North American Specialty Insurance Company, requests
that the Court, after review of the parties pleadings and hearing, enter summary judgment
against the City of Schaller, dismissing all claims against North American Specialty Insurance
Company, assess costs to Plaintiff and for such further relief as the Court deems just.
Respectfully Submitted,
/s/ Drew J. Gentsch___________________
Drew J. Gentsch AT0002739Benjamin B. Ullem AT0008031WHITFIELD & EDDY, P.L.C.317 Sixth Avenue, Suite 1200Des Moines, IA 50309-4195Telephone: (515) 288-6041Fax: (515) 246-1474
email: [email protected]: [email protected]
ATTORNEYS FOR DEFENDANTNORTH AMERICAN SPECIALTYINSURANCE COMPANY
Clerk to email copy to:
Alan E. Fredregill
Rosalynd J. KoobSarah K. Kleber1128 Historic 4th StreetP.O. Box 3086
Sioux City, Iowa 51102ATTORNEYS FOR PLAINTIFF
E-FILED 2013 DEC 03 4:37 PM SAC - CLERK OF DISTRICT COURT
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Notice ID: 2RCV29
IN THE IOWA DISTRICT COURT FOR SAC COUNTY
CITY OF SCHALLER - OTHER PIN,
PLAINTIFF(S),
vs.GENERAL EXCAVATING INCNORTH AMERICAN SPECIALTYINSURANCE CO,
DEFENDANT(S).
Case No. 02811 LACV019385
O R D E R
The Defendant North American Specialty Insurance Company has filed a Motion
for Summary Judgment. A hearing on that motion will now be scheduled.IT IS, THEREFORE, THE ORDER OF THE COURT as follows:
1. A Hearing is scheduled on 01/13/2014 at 11:00 AM at the Sac Co. Courthouse,
100 NW State St., Sac City, Iowa.
2. If the parties so desire, they may participate in this hearing via conference
call to be initiated by counsel for the Defendant North American Specialty Insurance
Company. The Court may be reached at 712-662-7419.
If you need assistance to participate in court due to a disability, call the disability coordinator at
641-421-0990. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942).
Disablity coordinators cannot provide legal advice.
CLERK TO FURNISH COPIES TO:1 of 3
E-FILED 2013 DEC 04 3:50 PM SAC - CLERK OF DISTRICT COURT
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ALAN EDWARD FREDREGILLROSALYND J KOOB
DREW J GENTSCHBENJAMIN B ULLEM
2 of 3
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State of Iowa Courts
Case Number Case TitleLACV019385 CITY OF SCHALLER VS. GENERAL EXCAVATING INC ET
ALType: ORDER SETTING HEARING
So Ordered
Electronically signed on 2013-12-04 15:50:45
3 of 3
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E-FILED 2013 DEC 18 11:32 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 DEC 18 11:32 AM SAC - CLERK OF DISTRICT COURT
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E-FILED 2013 DEC 18 2:29 PM SAC - CLERK OF DISTRICT COURT
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IN THE IOWA DIS TRICT COURT FOR SAC COUNTY
CITY OF SCHALLER, ) LawNo. LACVO1 9385
Plaintiff, ))
v- )
GENERAL EXCAVATING INC., and ) PLAINTIFF'S RESISTANCE TONORTHAMERICAN SPECIALTY ) DEFENDANT, NORTH AMERICANINSURANCE COMPANY, ) SPECIALTY INSURANCE COMPANY'S
) MOTION FOR SUMMARY JUDGMENTDefendants.
COMES NOW Plaintiff, City of Schaller, by and through the undersigned counsel, andhereby resists Defendant, North American Specialty Insurance Company s Motion for SummaryJudgment Filed on or about December 3, 2013 and in support thereofstates:
1 . Genuine issues of material fact remain which preclude the application of thecontractual limitations period involved in this case and prevent the entry ofjudgment as a matterof law.
2. Genuine issues of material fact remain regarding whether the City's issuance ofthe Certificate of Substantial Completion somehow bars the City from recovering under theperformance bond and prevent the entry ofjudgment a s a matterof law.
3. Defendant, North American Specialty Insurance Company s ( NAS ) Motion forSummary Judgment should be denied for reasons set out in (1) Plaintiff's Response to NAS
Statement of Undisputed Material Facts and Plaintiffs Statement of Additional DisputedMaterial Facts; (2) Plaintiffs Brief in Resistance; (3) the Affidavit of Brian Woodke; and (4) the
Affidavit of Sarah Kleber. which are being filed contemporaneously herewith and arcincorporated by this reference.
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WHEREFORE, Plaintiff, City of Schaller, respectfully requests the Court deny theDefendant, North American Specialty Insurance Company s Motion for Summary Judgment, inits entirety, as well as any and all other relief the Court deems just and equitable.
Respectfully s u bm i tt ed t hi s 2 0 1 1 1 da y of D e ce m be r, 2 0 1 3.HEIDMAN LAW FIRM, L.L.P.
ALAN C T F RE D E C IL L A T 00027 2ROSALYND J. KDDB, AT0004380SARAH K. KLEBER, AT0004282
1 128 Historic 4th StreetP.O. Box 3086Sioux City, Iowa 5 1 1 02Phone: 712-255-8838Facsimile: 712-258-6714Email: alan.l redreqi I [email protected]: [email protected]: [email protected]
ATTORNEYS FOR PLAINTIFFCopy to via EDMS:Timothy RcicksGeneral Excavating, Inc.
1 25 N. Whitney St.Carrol. IA 51401-2838
Benjamin B. UllemDrew J. GentschWHITFIELD &EDDY, P.L.C.3 1 7 Sixth Avenue, Suite 200Des Moines, 1 A 50309-4195ATTORNEYS FOR DEFENDANTNORTH AMERICAN SPECIALTYINSURANCE COMPANY
trnrf-f, k P R 0 0 F O F S E R V I C ELSff, a r u 6 C 0 D y o f h i s d o c u m e n t w a sP = r t i = s I d M s T i 0 1 t h e a t t o r n e y s o f r e c c r d o f a l l- . es o this action at iheaddresses disclosedlhe P l e a d i n g s o ndp n *B y : ?Facsimile jSLOt(ier_ED v6
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IN THE IOWA DISTRICT COURT FOR SAC COUNTY
CITY OF SCHALLER,
Plaintiff,
v.
GENERAL EXCAVATING, INC. AND
NORTH AMERICAN SPECIALTY
INSURANCE COMPANY,
Defendants.
No. LACV019385
NOTICE OF SERVING DISCOVERY
COMES NOWDefendant, North American Specialty Insurance Company, provides
notice of service of discovery by regular mail on the Plaintiff pursuant to Iowa Rule of Court
16.401(2). The following discovery requests were mailed to the Plaintiffs attorney at the
address shown below on December 19, 2013:
1. Supplemental Response to Plaintiffs Request for Production of Documents.
WHITFIELD & EDDY, P.L.C.
317 Sixth Avenue, Suite 1200
Des Moines, IA 50309-4195Telephone: (515) 288-6041
Fax: (515) 246-1474
email:[email protected]:[email protected]
By:/s/ Drew J. Gentsch
Drew J. Gentsch AT0002739Benjamin B. Ullem AT0008031
ATTORNEYS FOR DEFENDANT
NORTH AMERICAN SPECIALTYINSURANCE COMPANY
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Original to:
Alan Fredregill
Rosalynd KoobSarah Kleber
1128 Historic 4th
Street
P.O. Box 3086Sioux City, Iowa 51102ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrumentwas served upon all parties to the above cause or toeach of the attorneys of record herein at their respectiveaddresses disclosed on the pleadings onDecember 23, 2013.
By: X U. S. Mail eMailHand Delivered Overnight CourierCertified Mail Other: ____________FAX
Signature:/s/ Linda S. Pirkle
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plain meaning of the terms is sufficient to understand the simple language of the bond contract
that Schaller selected and incorporated into the contract documents in this case.
As the Iowa Supreme Court has stated with regard to contract interpretation:
[A]lthough we allow extrinsic evidence to aid in the process of interpretation, the wordsof the agreement are still the most important evidence of the party's intentions at the time
they entered into the contract.
Pillsbury Co., Inc. v. Wells Dairy, Inc., 752 N.W.2d 430, 436 (Iowa 2008).
When a contract is not ambiguous, it will be enforced as written, Spilman v. Board of
Directors, 253 N.W.2d 593, 596 (Iowa 1977), but when there are ambiguities in acontract they are strictly construed against the drafter. Village Supply Co. v. Iowa Fund,
Inc., 312 N.W.2d 551, 555 (Iowa 1981);Fashion Fabrics of Iowa v. Retail Investors
Corp.266 N.W.2d 22, 27 (Iowa 1978);Rector v. Alcorn, 241 N.W.2d 196, 202 (Iowa1976).
Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859, 862-63 (Iowa 1991).
According to Merriam-Websters online dictionary, ceaseis defined as:
:to stop happening; to end;to stop doing (something).
According to Merriam-Websters online dictionary, workis defined as:
:a job or activity that you do regularly especially in order to earn money:the place where you do your job:the things you do especially as part of your job.
Therefore, the plain meaning of the term ceased working can be readily distilled to mean to
stop the things you do especially as part of your job. See Merriam-Websters Online
Dictionary,www.merriam-webster.com,last visited on December 27, 2013.
NAS supported its motion for summary judgment with an affidavit from General
Excavating stating that it had ceased performing work on the subject project by June 11, 2010.
Pursuant to an affidavit in support of Schallers resistance, seeding work may have been
performed by Gen Ex as late as July 2, 2010. While this would appear to create a fact
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question, it is not a material question of fact because, assuming without agreeing that July 2,
2010 is the last work performed by Gen Ex on the project, the lawsuit was still filed well past
the two year statute of limitations stated by the bond when Schaller filed on October 15, 2012.
After July 2, 2010, Schaller can only point to settlement discussions between itself and
Gen Ex, and not evidence, to attempt to show what it alleges as work. Such discussions are
not sufficient evidence of work pursuant to the plain meaning of the terms of the bond
demanded by Schaller to withstand summary judgment as requested by NAS.
Schallers Facts Fail To Demonstrate Estoppel Against NAS
Schaller mistakenly alleges that the case of Christy v. Miulliis controlling to
demonstrate estoppel against NAS to halt the operation of the bonds plain terms. However,
the Christycase is clearly distinguishable as it is based upon a medical malpractice case
wherein the doctor defendant intentionally mislead the Plaintiff as to the nature of the death
complained of in the wrongful death suit. See Christy v. Muilli,692 N.W.2d 694 (Iowa 2005).
A case more on point for the instant case isNorthwest Limestone Co., Inc. v. Iowa DOT, 499
N.W.2d 8 (Iowa 1993). In theNorthwest Limestonecase the Court examined an allegation of
estoppel against a surety company based upon the course of settlement discussions that
exhausted a statute of limitations under the public improvements statute. See id.at 12. In that
case, the surety continued to discuss settlement with the plaintiffs up to the expiration of the 60
day period contemplated by the statute, and requested that the plaintiffs diary ahead their
discussion of settlement beyond the 60 day period. See id. The Court held that such
discussions of settlement gave no assurances of payment or extension of the applicable
timeline, and therefore dismissed the plaintiffs claims as untimely. See id.
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In this case, the settlement discussions alleged are not even alleged to involve NAS, let
alone demonstrate any assurance that NAS would pay the claim or extend the limitations period
under the bond. Nevertheless, just like in theNorthwest Limestonecase, the settlement
discussions herein are insufficient to generate a judgment in favor of Schaller under the bond.
As a result, there can be no estoppel against NAS in this case, and the bond contracts plain
terms apply. Therefore, summary judgment should be entered on Schallers claim against
NAS herein for untimely filing.
WHEREFORE Defendant, North American Specialty Insurance Company, requests
that the Court, after review of thepartiespleadings and hearing, enter summary judgment
against the City of Schaller, dismissing all claims against North American Specialty Insurance
Company, assess costs to Plaintiff and for such further relief as the Court deems just.
Respectfully Submitted,
/s/Drew J. Gentsch______________________Drew J. Gentsch AT0002739
Benjamin B. Ullem AT0008031WHITFIELD & EDDY, P.L.C.
317 Sixth Avenue, Suite 1200Des Moines, IA 50309-4195Telephone: (515) 288-6041Fax: (515) 246-1474email: [email protected]: [email protected]
ATTORNEYS FOR DEFENDANTNORTH AMERICAN SPECIALTY
INSURANCE COMPANY
Clerk to email copies to:
Alan E. FredregillRosalynd J. KoobSarah K. Kleber
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1128 Historic 4thStreetP.O. Box 3086Sioux City, Iowa 51102
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1
IN THE IOWA DISTRICT COURT FOR SAC COUNTY
CITY OF SCHALLER,
Plaintiff,
v.
GENERAL EXCAVATING, INC. ANDNORTH AMERICAN SPECIALTYINSURANCE COMPANY,
Defendants.
No. LACV019385
DEFENDANT NORTH AMERICAN
SPECIALTY INSURANCE COMPANY'SSUPPLEMENTAL REPLY BRIEF INSUPPORT OF ITS MOTION FORSUMMARY JUDGMENT
COMES NOW Defendant, North American Specialty Insurance Company (hereinafter
referred to as NAS), and for its Supplemental Reply Brief in Support Motion for Summary
Judgment to Plaintiffs Petition, states as follows:
The Supreme Court of Iowa issued a new Opinion on January 10, 2014. SeeOsmic v.
Nationwide Agribusiness Ins. Co., No. 12-1295, (Iowa filed January 10, 2014) (copy attached
for ease of reference). While the case is not directly on point due to its handling of an
underinsured motorist insurance policy, rather than a case of suretyship, it is instructive in key
aspects of the instant case. See id. Namely, the Court recognized its previous case law that
allows parties to modify the limitations period for filing suit, so long as the limitation is
reasonable. See id.at 9. Despite the plaintiffs argument that the contractual limitation period
should not apply to him because he was not a party to the contract, the Court referenced
Restatement Second of Contracts Section 309 in refuting the plaintiffs argument, stating:
Where there is a contract, the right of a beneficiary is subject to any limitations imposed by
the terms of the contract. Id.at 12. Further commentary in the Restatement applies the
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rational of the Section to surety relationships. RESTAMENT(SECOND) CONTRACTS, 309
cmt. b (Illustration 8).
Given the Courts recent pronouncement in the Osmicmatter, the two year limitation
period stated in the bond at issue herein is presumptively reasonable, especially in light of the
one year limitation period that is allowed in relation to performance bonds in Iowa pursuant to
Iowa Code Section 573.6.
WHEREFORE Defendant, North American Specialty Insurance Company, requests
that the Court, after review of the parties pleadings and hearing, enter summary judgment
against the City of Schaller, dismissing all claims against North American Specialty Insurance
Company, assess costs to Plaintiff and for such further relief as the Court deems just.
Respectfully Submitted,
/s/Drew J. Gentsch______________________Drew J. Gentsch AT0002739Benjamin B. Ullem AT0008031
WHITFIELD & EDDY, P.L.C.
317 Sixth Avenue, Suite 1200Des Moines, IA 50309-4195
Telephone: (515) 288-6041Fax: (515) 246-1474email: [email protected]: [email protected] FOR DEFENDANTNORTH AMERICAN SPECIALTYINSURANCE COMPANY
Clerk to email copies to:
Alan E. FredregillRosalynd J. KoobSarah K. Kleber1128 Historic 4thStreetP.O. Box 3086Sioux City, Iowa 51102
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IN THE SUPREME COURT OF IOWA
No. 121295
Filed January 10, 2014
ESAD OSMIC,
Appellee,
vs.
NATIONWIDE AGRIBUSINESS INSURANCE COMPANY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
David F. Staudt, Judge.
An insurer seeks further review of a court of appeals decision
affirming the denial of the insurers motion for summary judgment basedupon the statute of limitations in an insurance policy. DECISION OF
COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT
REVERSED AND CASE REMANDED WITH INSTRUCTIONS.
Sharon Soorholtz Greer and Thomas L. Hillers of Cartwright,
Druker & Ryden, Marshalltown, for appellant.
James F. Kalkhoff of Dutton, Braun, Staack & Hellman, P.L.C.,
Waterloo, for appellee.
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MANSFIELD, Justice.
We must decide whether a policy provision limiting the time to file
an action to recover underinsured motorists benefits is binding on a
passenger who was injured while riding in the named insureds vehicle.
The passenger brought this action approximately one month after the
deadline set forth in the policy, which required suit to be commenced
within two years after the date of the accident.
We conclude the passenger, as an insured and a third-party
beneficiary of the policy, does not have greater rights than the
policyholder. Thus, the passenger cannot avoid the contractual time
limitation unless the policyholder under similar circumstances would
have been able to avoid it. Because the record, when viewed in the light
most favorable to the passenger, does not demonstrate either that the
policys time limit was unreasonable or that the insurer should be
equitably estopped from enforcing it, we hold the insurers motion for
summary judgment should have been granted. Accordingly, we vacate
the decision of the court of appeals, reverse the order of the district
court, and remand for entry of summary judgment in favor of the
insurer.
I. Facts and Procedural Background.On May 23, 2009, Esad Osmic, his wife, and his children were
riding as passengers in a Ford Explorer owned and operated by Esads
brother Selim. Some members of Selims immediate family were also
riding in the vehicle. As the Explorer was traveling northbound on
Washington Street/Highway 218 in Waterloo, a Nissan Sentra that was
owned and driven by Rochelle Heasley entered the highway. According to
witnesses, Heasleys Nissan cut across two lanes without clearance to do
so. This forced Selim to take immediate evasive action. He swerved to
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avoid being hit, but as a result, he lost control of the Explorer. It ended
up rolling over in the grass embankment next to the highway. Selim was
ejected from the vehicle.
The police responded to the accident. Heasley was cited for
improper merging. At the time, Heasley was insured by Progressive
Insurance, with coverage limits of $50,000 per claim and $100,000 per
occurrence. Selim had coverage with Nationwide Agribusiness Insurance
Company (Nationwide), including underinsured motorist (UIM) coverage.
In October 2009, Esad began treatment for right shoulder pain
which he attributed to the May 2009 accident. Arthroscopy was
recommended in November 2009, and Esad eventually underwent this
procedure in November 2010.
Meanwhile, in June 2010, approximately thirteen months after the
accident, Esads counsel submitted a representation letter to Nationwide.
Nationwides claims representatives thereafter contacted the office of
Esads counsel andleft phone messages approximately once a month for
the next eight months asking for Esads medical records. In addition, a
letter was sent on December 3, 2010, to Esads counsel requesting those
records.
On September 13, 2010, a Progressive claims representative
advised Nationwides claim representative that Progressive had settled
with Selim and his family for $65,000, leaving only $35,000 in remaining
coverage for the accident.
On March 7, 2011, Esads attorney submitted a demand on
Heasleys Progressive policy on behalf of Esad and his two children. He
asserted that Esad had suffered a right shoulder injury, a left inguinal
hernia, and a low back injury as a result of the accident. He also
maintained that the children had suffered both physical and
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psychological injuries from the accident. The demand letter sought
$178,500 for Esad and $13,000 each for the two children. The letter
added, The statute is rapidly approaching in this matter. I hope to hear
from you soon to see if these matters can be resolved. At that time,
approximately ten weeks remained before the May 23, 2011 expiration of
the two-year statute of limitations to bring suit against Heasley. See
Iowa Code 614.1(2) (2011) (requiring actions based on personal injury
to be brought within two years).
Upon receipt of this letter, Progressive informed Esads attorney
that only $35,000 remained on its policy to cover claims arising from the
May 23, 2009 accident. Progressive offered to pay $25,000 to Esad and
$5000 for each of his children to settle the claims.
In response to the offer from Progressive, Esads counsel finally
initiated contact with Nationwide by phone on March 25, 2011. During
the conversation, Nationwide requested a copy of the demand letter to
Progressive and copies of Esadsand his childrens medical records.
On March 28, 2011, Esadscounsel provided Nationwides claims
representative with a copy of his demand letter to Progressive, along with
copies of his clients medical records and medical bills. The letter also
summarized the status of Progressives remaining insurance coverage
and its outstanding settlement offer of $25,000 for Esad and $5000 each
for the two children. The letter further stated:
Please provide me with a copy of your declaration pageso I know and can confirm for my client what theunderinsured limits are. Also, please advise in writing if Imay proceed with settling with Progressive for the amountidentified above.
I realize I have not provided you with the three yearprior medical records. I should have those in the very nearfuture and will forward them to you immediately. If youneed anything further, please advise. I look forward to
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hearing from you to conclude the claim with the tortfeasor asour statute is running.
On April 1, 2011, Esads attorney sent Nationwide a letter
enclosing medical records for Esad for the three years prior to the
accident. The letter reiterated:
Please advise as to your policy limits as soon aspossible and also provide me with a copy of the declarationpage. Also, please let me know if I may proceed to settle thecase with Progressive for the tortfeasors limits as previouslyexplained. I look forward to hearing from you in the verynear future.
On April 12, 2011, Nationwides claims representative wrote back
to Esads attorney. She granted consent to settle the claims with
Progressive for $25,000, $5000, and $5000, respectively. She added,
Regarding your request for a copy of the Declaration page, I do not have
consent from our Insured to provide this information. Finally, she
stated:
I am currently reviewing the information providedregarding Esads injury. I have had the opportunity toreview the claim information pertaining to the claims of [the
children] and it appears the settlement offers presented byProgressive of $5,000 for each of these claims will adequatelyindemnify them . . . .
I am aware of the fast approaching statute expirationdate and will be in contact with you regarding theunderinsured claim of Esad once I have had the opportunityto review the information you have provided.
On May 4 and May 11, Esads attorney sent additional medical
records and an additional medical bill to Nationwide.
On May 27, 2011, Nationwides claims representative wrote Esads
attorney, advising that the UIM coverage under Selims policy has now
expired per the contract language which states Underinsured Motorists
coverage will be barred unless suit filing is commenced within two years
after the date of the accident. The letter enclosed a copy of the policys
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UIM endorsement. The policy language limiting the time to bring suit
read, [A]ny suit against us under this [UIM] Coverage will be barred
unless commenced within two years after the date of the accident.
Esad brought this action against Nationwide and Westfield
National Insurance Company (his own insurance carrier) on June 23,
2011, alleging he had suffered damages in excess of the Progressive
policy limits and seeking recovery on both Nationwides and Westfields
UIM coverage. Nationwide then moved for summary judgment, claiming
Esads petition was untimely becausehe had failed to file it within the
policys two-year deadline. Esad resisted the motion. Nationwide
supported its motion with an affidavit from its claims representative, but
Esad did not submit an affidavit or other statement from his attorney.
Esad did, however, furnish an affidavit from Selim. Therein, Selim stated
he would have granted consent to share the declarations page for the
Nationwide policy with Esad if asked.
The district court denied Nationwides motion, citing several
considerations. First, the court emphasized that Esad was not a party to
Nationwides insurance policy. As the court put it, The court knows of
no reason that Esad should be bound by contractual provisions in which
he did not participate. The court further found that even though
Nationwide had not waived its statute of limitations defense, it
intentionally did not provide plaintiff with a copy of the policy which
would have revealed the contractual limitations within the two-year time
period. The court noted Nationwides agreement that it would have
provided a copy of the relevant policy language if requested. Lastly, the
district court observed that Nationwide could have completed its claims
investigation and responded to Esads UIM claim before the contractual
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limitations period expired. For this combination of reasons, the court
denied Nationwides summary judgment motion.
We granted Nationwides application for an interlocutory appeal
and transferred the case to the court of appeals. In a well-written and
lively opinion, the court of appeals upheld the district courts ruling.
Initially, it determined the contractual two-year period of limitation in
Selims Nationwide insurance policy was valid and enforceable as to
Selim. However, the court also found Nationwide had a duty under the
facts of the case to advise Esads attorney of the contractual deadline for
bringing UIM claims under the policy. As the court explained:
Esad was not a party to the Nationwide policy and had noknowledge of the contractual time limitation for filing suit.Nationwide had knowledge of Esads claim within thecontractual time limitation, but chose to withhold theinformation until after the limitations period expired.
One member of the panel dissented from this ruling, reasoning that
third-party beneficiaries are bound by contractual provisions, that Esads
attorney never asked for the policy itself, and that the requested
declarations page would not have provided any information regarding
the contractual limitations period.
We granted Nationwides application for further review.
II. Standard of Review.
We review the district courts summary judgmentruling for errors
at law. Iowa R. App. P. 6.907; Farm Bureau Life Ins. Co. v. Holmes
Murphy & Assocs., Inc., 831 N.W.2d 129, 133 (Iowa 2013). We can
resolve a matter on summary judgment if the record reveals a conflict
concerning only the legal consequences of undisputed facts. Boelman v.
Grinnell Mut. Reins. Co., 826 N.W.2d 494, 501 (Iowa 2013). When the
facts related to the limitations issue are undisputed, the enforceability of
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the contractual limitations period is a question of law for the court.
Robinson v. Allied Prop. & Cas. Ins. Co., 816 N.W.2d 398, 401 (Iowa
2012).
III. Legal Analysis.
A. The Terms of the Policy. We begin our analysis with a review
of the policy. See, e.g.,Thomas v. Progressive Cas. Ins. Co., 749 N.W.2d
678, 68182 (Iowa 2008). Our first step in insurance coverage matters is
to consider what the policy itself says. Id. at 683 (internal quotation
marks omitted). Interpretation requires us to give meaning to
contractual words in the policy. Boelman, 826 N.W.2d at 501.
Under Iowa Code section 516A.1, UIM coverage must be included
in every motor vehicle liability insurance policy unless the insured rejects
it. SeeIowa Code 516A.1; Robinson, 816 N.W.2d at 402. Selims policy
contained a UIM endorsement. That endorsement provided:
We will pay compensatory damages which an insuredis legally entitled to recover from the owner or operator of anunderinsured motor vehicle because of bodily injurycaused by an accident.
The endorsement defined insured to include [a]ny other person
occupying your covered auto. Hence, Esad was an insured for
purposes of the UIM coverage. Additionally, as noted above, the
endorsement provided that any suit against us under this [UIM]
Coverage will be barred unless commenced within two years after the
date of the accident.
The policy also had a separate declarations page that identified the
Ford Explorer as an insured vehicle, indicated the vehicle had UIM
coverage with limits of $100,000 per person and $300,000 per accident,
and disclosed the premium charged to Selim for that coverage.
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B. The Reasonableness of the Contractual Two-Year Limit on
Filing Suit. Because UIM claims are contractual, they are presumptively
subject to a ten-year statute of limitations. See Iowa Code 614.1(5);
Robinson, 816 N.W.2d at 402; Douglass v. Am. Family Mut. Ins. Co., 508
N.W.2d 665, 666 (Iowa 1993), overruled on other grounds by Hamm v.
Allied Mut. Ins. Co., 612 N.W.2d 775, 784 (Iowa 2000). However, we have
held that parties to an insurance contract can modify the deadline for
bringing suit. See Robinson, 816 N.W.2d at 402 (Under general
contract law, it is clear that the parties may agree to a modification of
statutory time limitations . . . . Iowa has long recognized the rights of
insurers to limit time for claims, irrespective of a legislative imprimatur
on such provisions. (quoting Douglass, 508 N.W.2d at 66667)); Faeth
v. State Farm Mut. Auto. Ins. Co., 707 N.W.2d 328, 334 (Iowa 2005);
Nicodemus v. Milwaukee Mut. Ins. Co., 612 N.W.2d 785, 787 (Iowa 2000).
Our caselaw indicates a contractual limitation of the statutory deadline
is enforceable if it is reasonable. See Robinson, 816 N.W.2d at 402;
Nicodemus, 612 N.W.2d at 787 (The basic rule was established in
Douglass: a contractual limitations provision is enforceable if it is
reasonable.).
In certain prior cases, we have upheld contractual limitations
provisions that require suit to be brought for UIM or uninsured motorist
(UM) benefits within two years of the accident. See Robinson, 816
N.W.2d at 409; Douglass, 508 N.W.2d at 668. There is no question that
the two-year contractual limit was reasonable in this case. Esad was
represented by counsel who made contact with Nationwide nearly a year
before the two-year limitations period ran out. Esad could have sued for
UIM benefits during that period. There was no barrier in the insurance
policy to his doing so. See Robinson, 816 N.W.2d at 403; cf. Faeth, 707
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N.W.2d at 335 (finding a two-year limitations period unreasonable where
the provision left the insured no time to file suit after the claim accrued);
Nicodemus, 612 N.W.2d at 78889 (holding a two-year limitations period
was unreasonable because there was no contractual basis for bringing
the suit until after the limitations period had expired). This is not even a
case where the insured failed to appreciate the extent of her injuries.
See Robinson, 816 N.W.2d at 403. At least six months prior to the
expiration of the two-year contractual limitations period, Esad knew the
extent of his injuries, and at least two months before the end of that
period, Esads attorney knew Progressives coverage for those injuries
would be inadequate.1
C. Esads Rights Under Selims Policy. Esad argues, however,
that he is not the policyholder and therefore cannot be bound to all the
terms of Selims contract with Nationwide. We cannot accept this
proposition.
A policy of automobile liability insurance is a contract, therefore
generally governed by those accepted rules applicable to contracts. Gen.
Cas. Co. of Wis. v. Hines, 261 Iowa 738, 745, 156 N.W.2d 118, 122
(1968); see Talen v. Emprs Mut. Cas. Co., 703 N.W.2d 395, 407 (Iowa
2005) (Insurance policies are contracts between the insurer and the
insured and must be interpreted like other contracts . . . .).
1Esad concedes in his brief that he knew the extent of his injuries on November
11, 2010, when arthroscopic surgery on him revealed a torn shoulder labrum. He
argues the limitations period should not have commenced until that date, based on the
discovery rule. This is incorrect. We have previously stated an insurance company
has the ability, if it so chooses, to clearly articulate the applicable limitations period for
claims against the tortfeasor and the insurer, and the event upon which the limitations
period begins to run. Hamm, 612 N.W.2d at 784. Nationwides policy stated that any
suit for recovery of UIM benefits would be barred unless commenced within two years
after the date of the accident.
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A contract may benefit and give rights to third parties. See RPC
Liquidation v. Iowa Dept of Transp., 717 N.W.2d 317, 320 (Iowa 2006)
(A third party . . . has an enforceable right by reason of a contract
made by two others . . . if the promised performance will be of pecuniary
benefit to [the third party] and the contract is so expressed as to give the
promisor reason to know that such benefit is contemplated by the
promisee as one of the motivating causes of his making the contract.
(quotingVogan v. Hayes Appraisal Assocs., Inc., 588 N.W.2d 420, 42324
(Iowa 1999))). We have adopted the Restatement (Second) of Contracts
section 302 concerning third-party beneficiaries. See RPC Liquidation,
717 N.W.2d at 319; Midwest Dredging Co. v. McAninch Corp., 424 N.W.2d
216, 224 (Iowa 1988). Illustration 4 to that section indicates a
beneficiary of a life insurance policy would be considered a third-party
beneficiary of the life insurance contract. SeeRestatement (Second) of
Contracts 302 cmt. c, illus. 4, at 441 (1981).
When an insurance contract extends coverage to someone like
Esad who is not the policyholder, this additional insured becomes a
third-party beneficiary of the contract. As the Wisconsin Court of
Appeals has put it:
Jones also made an uninsured motorist claim against StateFarm. Once Jones opted to make that claim, we hold that hewas properly bound to the provisions of the policy relating tothat claim. Functionally, the insurance policy made Jones athird-party beneficiary of the contract. When a right hasbeen created by a contract, the third party claiming the
benefit of the contract takes the right subject to all the termsand conditions of the contract creating the right.
Jones v. Poole, 579 N.W.2d 739, 741 (Wis. Ct. App. 1998); see also
Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla. 1996)
(characterizing lawful occupants of an insured vehicle as third party
beneficiaries to the named insureds policy); 2 William J. Schermer &
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Irvin E. Schermer, Automobile Liability Insurance 26:19 (4th ed. 2013)
(The fact that a Class II or additional insured (such as a pedestrian or
passenger) is not a signatory to the contract does not exempt such an
insured from the application of policy conditions and requirements to
which a named insured is subject. A Class II insured is deemed a third-
party beneficiary of the policy and bound by all its provisions when a
claim for uninsured motorist coverage is made against the policy.).
However, the rights of a third-party beneficiary are controlled by
the terms of the contract. See Olney v. Hutt, 251 Iowa 1379, 1383, 105
N.W.2d 515, 518 (1960) (The [third-party beneficiarys] rights can rise
no higher than those of the promisee.); Restatement (Second) of
Contracts 309 cmt. b, at 459 (Where there is a contract, the right of a
beneficiary is subject to any limitations imposed by the terms of the
contract.).
Thus, Esad is subject to the provisions of Selims insurance policy,
including the one requiring any suit under the UIM coveragei.e.,
regardless of claimantto be brought within two years of the accident.
See Williams v. Progressive Ne. Ins. Co., 839 N.Y.S.2d 381, 382 (App. Div.
2007) (holding that a passenger seeking UM benefits is a third-party
beneficiary of the insurance policy and subject to any provisions of the
policy that apply to all insureds).
An injured person who makes a claim for uninsuredmotorist benefits under a policy to which he is not a
signatory is in the category of a third party beneficiary.Historically, this Court has held that third partybeneficiaries are bound by the same limitations in thecontract as the signatories of that contract. The third partybeneficiary cannot recover except under the terms andconditions of the contract from which he makes a claim.
Johnson v. Pa. Natl Ins. Cos., 594 A.2d 296, 299 (Pa. 1991); see also Ex
parte Dyess, 709 So. 2d 447, 45051 (Ala. 1997) (noting that an insured
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who did not sign the policy and is seeking UM benefits is a third-party
beneficiary of the policyand cannot pick and choose the portions of the
contract that he wants to apply); Jeanes v. Arrow Ins. Co., 494 P.2d
1334, 1337 (Ariz. Ct. App. 1972) (finding that a passenger seeking UM
benefits has become a third party beneficiary andmust abide by the
terms of the contract in order to obtain benefits under a UM policy);
Bantz v. Bongard, 864 P.2d 618, 623 (Idaho 1993) ([A] third party
beneficiary of an insurance policy must comply with all the terms and
provisions of an insurance policy which apply to that beneficiary.).
Allgor v. Travelers Ins. Co., 654 A.2d 1375, 1379 (N.J. Super. Ct. App.
Div. 1995) (As an intended third-party beneficiary of the contract,
plaintiff in this case simply does not have greater rights than his father
has as the named insured and maker of the contract.).2
D. Is There an Affirmative Duty to Advise an Insured of the
Policys Limitations Period? The next question is whether Nationwide
had an affirmative duty to disclose the contractual deadline for filing suit
to Esads attorney. The court of appeals found that it did. For the
reasons discussed herein, we respectfully disagree.
We have previously said, An insurer does not have the duty to
warn its policyholders that the time period for filing suit against it is
running out. Morgan v. Am. Family Mut. Ins. Co., 534 N.W.2d 92, 100
(Iowa 1995),overruled on other grounds by Hamm, 612N.W.2d at 784. In
2Of course, obligations that an insurer owes to an insured under Iowa law wouldapply here. Our point is simply that Esad is bound by the policy terms to the same
extent as Selim, the policyholder.It should be noted, however, that Iowa Code section 507B.4(19) (2011)now
Iowa Code section 507B.4(3)(s) (2013)which indicates it is an unfair insurance
practice for an insurer to fail to provide upon a reasonable request, information to
which that individual is entitled, applies only to a policyholder or applicant. Esad is
neither of these.
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Morgan, the plaintiffs alleged their insurer, American Family Mutual
Insurance Company (American Family) acted in bad faith when it refused
to pay benefits under the Morgansuninsured motorist policy for injuries
suffered by their daughter during an automobile accident. Id.at 94. The
Morgans did not learn the full-extent of their daughters injuries until
more than a year after the accident. Id. at 95. Sixteen months after the
accident, and approximately eight months before the expiration of a two-
year contractual limitations period that was added to their policy by
American Family the year before the accident, the Morgans informed
American Family of their intention to seek damages under the uninsured
motorist policy. Id. at 95, 98. After reviewing the claim, American
Family denied it about six weeks before the contractual limitations period
expired. Id. at 95. The Morgans filed suit eighteen months later, sixteen
months after the deadline for filing suit had passed. Id. Among other
things, the Morgans argued American Family failed to warn them of the
approaching deadline and, therefore, should be barred from asserting the
limitations period defense. Id. at 100. We explained:
The Morgans also assert American Family should beestopped from asserting the contractual limitations defensebecause when it denied the Morgans claim for uninsuredmotorist benefits on July 8, 1987, it did not alert them thatit intended to rely on the limitations provision as a defenseafter August 19, 1987. The Morgans argue that AmericanFamily should have warned them of the approachinglimitations deadline. We disagree. An insurer does not havethe duty to warn its policyholders that the time period forfiling suit against it is running out. We also note the
Morgans are in a poor position to complain that they werenot warned about the approaching limitation period becausethey retained an attorney to represent them in this mattersix months before the limitation period ran, yet did not bringsuit until January 1989.
Id. at 100.
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We believe Morgancontrols here.3 Just as there is no general duty
to affirmatively disclose the limitations deadline to policyholders, no duty
arises to affirmatively disclose it to additional insureds. Any other
conclusion would undermine the principle, just discussed, that a third-
party beneficiarys rights under a contract do not exceed those of the
primary party. Notably, Esad, like the Morgans, had retained counsel
well before the limitations period ran.
The Morgan approach appears to be in accord with prevailing
caselaw. A number of authorities indicate that an insurer has no
affirmative obligation to disclose a contractual limitations period, such as
by providing a copy of the insurance policy, absent a specific request.
The plaintiff here argues that although defendant didnot refuse to deliver the policy, the failure to deliver was inessence a tacit refusal to deliver. He maintains since he didnot have the policy and was not aware of the provisionrequiring suit against the company be brought within oneyear of the loss, the company should be estopped fromasserting that provision.
We disagree. The plaintiff here, unlike in [Union Fire
Inc. Co. v.] Stone, [152 S.E. 146 (Ga. Ct. App. 1930)] neverrequested a copy of the policy, and the defendant neverrefused to give the policy. Defendants failure to deliver thepolicy did not amount to a tacit refusal to deliver.
Schoonover v. Am. Family Ins. Co., 572 N.E.2d 1258, 1265 (Ill. App. Ct.
1991) (citing cases). In Schoonover, the court held summary judgment
should be granted based upon a policys contractual statute of
limitations when the insureds attorney never asked for a copy of the
policy, even though a copy had not been provided to the insured. Id. at
1266 (citing prior cases).
3Notably, our court decided Morganafter Weber v. State Farm Mut. Auto. Ins. Co.,
873 F. Supp. 201, 209 (S.D. Iowa 1994) (finding an insurance company had a duty to
disclose coverage to injured passengers considered insureds under the policy).
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Where the insurer wrongfully and unjustifiablywithholds the policy from the insured, the insurer may beestopped from relying on the suit limitation clause. . . .
On the other hand, an insurers failure to provide acopy of a policy did not create a waiver or estoppel regardingthe policys limitation provision under the following
circumstances:
. . . .
There was no request for a copy of the policy.
17 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d 238:22, at
238-40 to -41 (2005) [hereinafter Couch on Insurance 3d].
Esad cites us to decisions from Indiana and Ohio, but we find
them unpersuasive here. In Stewart v. Walker, the Indiana Court of
Appeals declined to enforce a contractual limitations period for bringing a
UM lawsuit as to a passenger in the insured vehicle. 597 N.E.2d 368,
37476 (Ind. Ct. App. 1992). In that case, the third-party beneficiary,
Stewart, had written the insurer to advise it of the claim three months
before the expiration of the limitations period, had asked the insurer to
advise if it needed any further information. . . to process this uninsured
motorist claim, and had received no responseuntil after the limitations
period. Id. at 374. The court found an affirmative duty to disclose the
limitations period, flowing from the insurers overall duty of good faith:
We cannot but conclude that a duty of good faith dealingcertainly must include an obligation to inform such aclaimant of conditions precedent in the insurance contract,the more so when the nonparty claimant has asked whetherthe insurer requires any additional information in order to
process the claim.
Id.at 37576.
However, subsequent authority from the Indiana Supreme Court
has clarified that Indiana does not recognize a general duty of disclosure,
based on principles of good faith, running from insurers to third-party
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beneficiaries. See Cain v. Griffin, 849 N.E.2d 507, 51112 (Ind. 2006). In
the Indiana Supreme Courts view, Stewartwas driven by the facts and
circumstances of [that] case. See id. at 512 (quoting Stewart, 597
N.E.2d at 376). As the Indiana Supreme Court explained in Cain,
Stewart was correctly decided because the insurance company had
attempted to rely upon a third-party insureds failure to comply with a
condition that the same insurance company had refused to disclose.
See id.
The facts of Esads situation differ significantly from those in
Stewart. Here, Esad was represented by counsel who contacted
Nationwide nearly a year before the expiration of the contractual
limitations period. Esads counsel then failed to respond to a series of
inquiries from Nationwide over many months. When Esads counsel
resumed contact with Nationwide, he never asked about policy
conditions or asked for a copy of the policy itself. In any event, the
lesson of Cainis that Indiana does not recognize a broad-based duty on
the part of insurers to affirmatively disclose contractual limitations
periods to third-party beneficiaries.
Esad also relies on an Ohio case that found a three-year
contractual limitations period unenforceable as to a nonpolicyholder.
See Wilson v. Ohio Cas. Ins. Co., 923 N.E.2d 1187, 1190 (Ohio Ct. App.
2009). In Wilson, the plaintiff was injured while driving a vehicle owned
and insured by his employer and later brought a UM/UIM claim. See id.
at 118889, 1191. The court noted that under Ohio law, insurance
companies have a duty of good faith to inform insureds of limitations
periods when faced with potential claims. Id. at 1190. [W]here the
insurer has been made aware that an insured has a potential claim
under a policy providing UM/UIM coverage, the insurer must inform the
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insured of any applicable limitations period contained in the policy. Id.
at 1191. The court found