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Kevin M. Jones, Debra Johnson Jones, and Kevin M. Jones, As Parent and v. Nathan William Lockner

March 13, 2013

KEVIN M. JONES, DEBRA JOHNSON JONES, AND KEVIN M. JONES, AS PARENT AND NEXT FRIEND OF ABBY JONES AND EMMA JONES, PLAINTIFFS-APPELLEES,
v.
NATHAN WILLIAM LOCKNER, DEFENDANT, AND NATIONWIDE MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.

The opinion of the court was delivered by: Vogel, P.J.

An insurance company appeals the denial of its motion for summary judgment. REVERSED AND REMANDED.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ.

Nationwide Mutual Insurance Company appeals the district court's decision denying its motion for summary judgment against its policy holders, Kevin and Debra Jones and their children (collectively the Joneses). Nationwide argues its two year limitation on underinsured motorists coverage is reasonable and enforceable as a matter of law based on Robinson v. Allied Prop. & Cas. Ins. Co., 816 N.W.2d 398, 404-05, 409 (Iowa 2012). The Joneses argue notwithstanding Robinson, the district court's decision should be affirmed on a ground the district court did not expressly rely upon-that they "substantially complied" with the notice provision in Nationwide's policy. Because the Joneses admit they did not add Nationwide as a defendant until after the contractual time limitation, there is no material fact which remains in dispute. We therefore reverse the district court's denial of Nationwide's motion for summary judgment and remand for entry of summary judgment in favor of Nationwide.

I. Background Facts and Proceedings

This case arises from an August 16, 2009, automobile accident in which Kevin Jones alleges he was injured after being rear ended by Nathan Lockner. Kevin and Debra Jones had an automobile insurance policy through Nationwide which provided for underinsured motorists ("UIM") coverage. The UIM contract required the claimant to file the claim within two years from the date of the accident. The UIM endorsement policy states:

No one may bring a legal action against us under Underinsured Motorists Coverage until there has been full compliance with all the terms of this policy. Further, any suit against us under this Underinsured Motorists Coverage will be barred unless commenced within two years after the date of the accident.

A lawsuit listing only Lockner as a defendant was filed on August 11, 2011. The two year period allowed by the policy for commencement of UIM claims against Nationwide closed on August 16, 2011. The UIM claim was not brought against Nationwide by the Joneses until November 4, 2011, well after the two year period ended. The Joneses claim they did not know the extent of their medical injuries until after the two year time period had run. Additionally, they claim their insurance agent was well aware of the fact that Kevin Jones was suffering from back pain sustained as a result of the car accident. Moreover, the Joneses claimed they "substantially complied" with the notice provision of the UIM policy.

The district court in large part relied on our case of Robinson v. Allied Prop. & Cas. Ins. Co., File No. 10-1721, 2011 WL 2556951 (Iowa Ct. App. June 29, 2011), and found there were genuine issues of material fact remaining concerning whether the Joneses made every effort to determine the extent of injuries within the two-year time period and whether the two-year time limit prevented them from recovering under the UIM provision of the contract. The district court did not make any findings regarding the Joneses' other arguments.

Nationwide filed an application for interlocutory appeal on May 14, 2012, which was granted on June 6. On June 29, 2012, our supreme court reversed our holding in Robinson, finding a contractual UIM limitation matching the two-year statute of limitations for personal injury tort claims is per se reasonable. 816 N.W.2d at 404. Nationwide then filed a motion to summarily reverse the district court's decision based on our supreme court's opinion in Robinson. It was resisted and denied, which leads us to the issues in this appeal.

II. Standard of Review

We review a district court decision to grant or deny a motion for summary judgment for correction of errors at law. Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Griffin Pipe Products Co., Inc. v. Bd. of Review, 789 N.W.2d 769, 772 (Iowa 2010). As this case arises from a denied motion for summary judgment, we view the record in the light most favorable to the Joneses as the nonmoving party. See Kern v. Palmer College of Chiropractic, 757 N.W.2d 651, 657 (Iowa 2008).

III. Issue Preservation

The Joneses argue denial of Nationwide's motion for summary judgment should be affirmed as factual questions exist with regard to the Joneses' substantial compliance with the notice provision, and if they did not substantially comply there are factual questions as to whether Nationwide suffered any prejudice.*fn1 Nationwide responds that the language of the contract required filing of the action, not just ...


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