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Beirnes v. Vecellio

Court of Appeals of Iowa

February 7, 2018

HENRY BEIRNES, Claimant-Appellant,
v.
ADRIENNE DENISE VECELLIO and JEFFREY JOHN VECELLIO, as Executors of the Estate of CLAUDIA J. VECELLIO, Respondents-Appellees.

         Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

         Henry Beirnes appeals the order dismissing his personal injury claim against the Estate of Claudia Vecellio.

          L. Craig Nierman and Nicholas J. Kilburg of Phelan, Tucker, Mullen, Walker, Tucker & Gelman, L.L.P., Iowa City, for appellant.

          Jeffrey D. Ewoldt of Hopkins & Huebner, P.C., Des Moines, for appellees.

          Considered by Danilson, C.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         Henry Beirnes appeals the order dismissing his personal injury claim against the Estate of Claudia Vecellio as untimely under Iowa Code section 633.410(1) (2014), which bars claims against a decedent's estate unless filed "within the later to occur of four months after the date of the second publication of the notice to creditors or, as to each claimant whose identity was reasonably ascertainable, one month after service of notice by ordinary mail to the claimant's last known address." Beirnes contends his claim was timely because he was a reasonably ascertainable creditor and, therefore, the limitation period could not expire until he was served notice by mail. He also contends the court erred in dismissing his claim to the extent Vecellio's insurance covers it because the statute "does not bar claims for which there is insurance coverage." Iowa Code § 633.410(3).

         I. Background Facts and Proceedings.

         On September 18, 2014, Vecellio rear-ended a motorcycle owned by John French, which Beirnes was driving. The investigating officer's accident report indicates neither driver was injured, and approximates the cost to repair Vecellio's vehicle as $0, and the motorcycle as $500. The following day, both French and Beirnes spoke with representatives of Vecellio's insurance carrier, Esurance Insurance Services, Inc. (Esurance), about the incident. Vecellio spoke to Esurance about the incident on September 22. She emailed photographs of her car to Esurance on September 30. Esurance had no further contact with Vecellio thereafter.

         In October 2014, Beirnes advised Esurance that he had sought medical treatment as a result of the collision. Esurance attempted to contact Biernes in November and December 2014 but was unsuccessful as Biernes did not respond to the messages left for him. As a result, Esurance closed its file relating to the collision on December 29, 2014. On July 20, 2015, an attorney representing Biernes contacted Esurance to advise he was preparing a settlement demand letter, but no such letter was received. In March 2016, the same attorney again advised Esurance he would be preparing a settlement demand, but that he did not have any information regarding the amount of special damages incurred by Biernes up to that time, but again, Esurance did not receive any settlement demand from Biernes or his attorney.

         Vecellio died on July 28, 2015. Her will was admitted to probate, and the estate published a notice to creditors in the Cedar Rapids Gazette on August 18 and 25, 2015. The notice was not mailed to Beirnes.

         In June 2016, Beirnes filed a $250, 000 claim against the estate. New counsel for Beirnes then filed a request for hearing and jury demand. The estate moved to dismiss the claim as untimely under section 633.410(1) because Beirnes filed his claim more than four months after the second publication of notice to creditors.[1] Beirnes resisted the motion, arguing he was entitled to service of the notice by mail because his identity as a creditor was reasonably ascertainable. In a supplemental resistance filed prior to hearing, Beirnes argued in the alternative that section 633.410(3) allowed him to pursue his claim to the extent insurance coverage was available.[2]

         On April 13, 2017, after conducting a hearing on the matter, the district court dismissed Beirnes's claim against the estate as untimely after determining Beirnes was an unknown creditor and, accordingly, the estate was not required to mail him the notice. Because Beirnes filed his claim more than four months after the second publication of notice to creditors, the court held his claim was barred under section 633.410(1). The court did not address Beirnes's alternative argument concerning Vecellio's insurance coverage.

         On April 24, 2017, Beirnes moved the court expand its ruling to address his argument regarding the section 633.410(3) exception for claims covered by insurance. In the motion, he also argued the estate had constructive notice of his claim because Vecellio's insurance company had knowledge of it. However, on May 15, 2017, before obtaining a ruling on his motion to expand, Beirnes filed a notice to appeal from the district court's April 13, 2017 ...


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