City of Schaller Dismisses Suit Against General Excavating Inc and North American Special Insurance Company

8/12/2019 City of Schaller Dismisses Suit Against General Excavating Inc and North American Special Insurance Company

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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



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Case ID : 02811 LACV019385 - CITY OF SCHALLER VS. GENERAL


Event Cd : NOOT

ALAN EDWARD FREDREGILL filed



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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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Event Cd : NOOT




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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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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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Event Cd : OSTR

BENJAMIN B ULLEM filed

DREW J GENTSCH filed

ROSALYND J KOOB filed




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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

E-FILED 2013 JUN 04 4:43 PM 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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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

E-FILED 2013 AUG 09 8:10 AM SAC - CLERK OF DISTRICT COURT


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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




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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 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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1


CITY OF SCHALLER,

Plaintiff,

v.


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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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



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Notice ID: 2RCV29


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



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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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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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CITY OF SCHALLER,

Plaintiff,

v.


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

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[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 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

http://www.merriam-webster.com/http://www.merriam-webster.com/http://www.merriam-webster.com/http://www.merriam-webster.com/


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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.


that the Court, after review of thepartiespleadings and hearing, enter summary judgment




/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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5

1128 Historic 4thStreetP.O. Box 3086Sioux City, Iowa 51102



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1


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

E-FILED 2014 JAN 10 2:49 PM SAC - CLERK OF DISTRICT COURT


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2

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.


that the Court, after review of the parties pleadings and hearing, enter summary judgment




/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



103/314

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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2

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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3

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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5

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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6

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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7

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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8

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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10

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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12

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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13

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