PROTECTIVE INSURANCE COMPANY, as Subrogee of FEDEX GROUND PACKAGE SYSTEM, Plaintiff-Appellee,
DANIEL GRIFFIN, Defendant-Appellant
This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Louisa County, John M. Wright, Judge. Daniel Griffin appeals from the grant of summary judgment in favor of Protective Insurance Company.
Eric D. Tindal of Nidey Erdahl Tindal & Fisher, PLC, Williamsburg, for appellant.
Shannon D. Adams and Brooke Trent of Nelson Law Firm, PLLC, Waterloo, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
In an action by insurer Protective Insurance Company (Protective) against Daniel Griffin to recover property damages resulting from a motor vehicle collision, Griffin appeals from the grant of summary judgment in favor of Protective. Griffin asserts the district court erred in granting the motion because (1) there is insufficient evidence to establish he was negligent, and (2) there is insufficient evidence " that no comparative fault existed." We affirm.
On March 5, 2011, Griffin was travelling southbound on county road W66 coming out of Cotter, Iowa. Upon entering state Highway 92, Griffin's truck was broadsided by a westbound semi-truck owned by FedEx Ground Package System (FedEx).
Pursuant to a policy of insurance Protective issued to FedEx, Protective paid out $48,467.02 in claims for damages to the FedEx semi-truck and trailer. FedEx paid out its deductible portion of the claim in the amount of $500. Protective, as subrogee of FedEx, filed suit seeking damages of $48,967.02 from Griffin, claiming he was negligent in failing to yield the right of way to the FedEx truck upon entering highway 92. Griffin answered, denying he was negligent and raising the affirmative defenses of comparative fault and " Failure to Avoid Injury or otherwise Mitigate Damages."
Protective's first motion for summary judgment was resisted by Griffin. Concluding Protective's supporting materials were insufficient, the district court denied the motion. Protective then sent a set of requests for admissions to Griffin. When he did not respond to the requests within the requisite thirty days set forth in Iowa Rule of Civil Procedure 1.510(2), Protective filed a second motion for summary judgment on October 18, 2012. This motion was supported by the unanswered requests for admissions directed to Griffin and an investigating officer's affidavit.
A December 7th hearing date was set. On November 26, over five weeks after the summary judgment motion was filed, Griffin filed a motion to extend the time for filing a resistance and to continue the hearing. Griffin explained he had contacted an accident reconstruction expert and needed additional time to raise funds to retain the expert. Griffin, citing rule 1.981(6), asserted he should be given the opportunity to present additional affidavits rebutting Protective's expert.
Protective resisted, noting Griffin had failed to comply with the fifteen-day timeframe for filing a resistance under rule 1.981(3). Additionally, it relied upon rule 1.510(2), which provides that the matter contained in requests for admission are " admitted unless, within [thirty] days after service of the request . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection." Because Griffin failed to answer its requests for admission within thirty days, it argued its requests were deemed admitted under that rule and those admissions established there was no genuine issue of material fact in the matter.
Ultimately, the hearing on the motion for summary judgment was held as scheduled. Griffin filed no written response or resistance to the motion for summary judgment. Although the hearing was unreported, the court ...