from the Iowa District Court for Polk County, David May,
plaintiff appeals the summary dismissal of his dramshop
B. Garver, West Des Moines, for appellant.
Henderson and Nick J. Gral of Whitfield & Eddy, P.L.C.,
Des Moines, for appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ. May,
J., takes no part.
Hollingshead appeals the summary-judgment order dismissing
his dramshop claim against DC Misfits LLC.
December 2015, Hollingshead alleges he received personal
injuries due to the intoxication of several individuals while
at a bar called Misfits. On June 8, 2016, Hollingshead mailed
notice to Founders Insurance indicating he intended to pursue
a dramshop action against Leonard LLC. On July 8, Founders
responded to Hollingshead, informing him the policy for
Leonard LLC had been cancelled effective February 1, 2015,
and sending him a copy of the notice of cancellation.
Hollingshead did not amend the notice to Founders Insurance
to inform the company DC Misfits was the insured party
subject to the lawsuit. Nor did Hollingshead provide notice
directly to DC Misfits that he intended to pursue a dramshop
action against them.
April 2017, Hollingshead filed suit bringing one claim
against the individuals alleged to be involved with vicarious
liability against DC Misfits, and a dramshop claim against DC
Misfits for selling and serving alcohol to the
individuals. Hollingshead did not attach to the
petition a notice of intention to bring the action. DC
Misfits moved for summary judgment based on
Hollingshead's failure to comply with statutory notice
requirements for his dramshop claim within the time frame
established by the legislature.
Dramshop Act, Iowa Code chapter 123 (2015), creates a cause
of action previously unknown in common law, establishing
civil liability for persons injured in person or property by
an intoxicated person against the entity selling and serving
alcohol to the intoxicated person. Our legislature may
require compliance with certain conditions before a plaintiff
may assert a dramshop claim. See Grovijohn v.
Virjon, Inc., 643 N.W.2d 200, 203 (Iowa 2002);
Arnold v. Lang, 259 N.W.2d 749, 751-52 (Iowa 1977).
Iowa Code section 123.93 creates a jurisdictional
prerequisite to a plaintiff's dramshop claim requiring
proper notice of the intent to bring a dramshop claim.
Section 123.93 provides requirements for such notice:
Within six months of the occurrence of an injury, the injured
person shall give written notice to the licensee or permittee
or such licensee's or permittee's insurance carrier
of the person's intention to bring an action under this
section, indicating the time, place and circumstances causing
compliance with section 123.93's notice requirements will
suffice. See Arnold, 259 N.W.2d at 752.
judgment is proper when "there is no genuine issue of
material fact and the moving party is entitled to a judgment
as a matter of law." Iowa R. Civ. P. 1.981(3). Appellate
review is "limited to whether a genuine issue of
material fact exists and whether the district court correctly
applied the law." Linn v. Montgomery, 903
N.W.2d 337, 342 (Iowa 2017) (quoting Pillsbury Co. v.
Wells Dairy, Inc., 752 N.W.2d 430, 434 (Iowa 2008)).
notice of his intent to bring a dramshop claim failed to
substantially comply with section 123.93. Among other things,
section 123.93 specifically requires notice be provided by
"the injured person" to the "licensee or
permittee or such licensee's or permittee's insurance
carrier." In Arnold, our supreme court held it
was "essential" for the notice to contain the
licensee or permittee's name. See Arnold, 259
N.W.2d at 752. In Berte v. Bode, 692 N.W.2d 368,
370-71 (Iowa 2005), the court held a notice listing Berte as
"guardian and conservator" of a minor child was
insufficient to serve as notice of claim for Berte
individually to sustain a dramshop claim-indicating proper
identification of the parties to the suit is a requirement of
the notice. As we have previously noted, "notice on
behalf of one party cannot constitute notice on behalf of
another party." Veach v. Prairie Meadows Racetrack
& Casino, Inc., No. ...