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Hollingshead v. DC Misfits, LLC

Court of Appeals of Iowa

May 15, 2019

JERAMY HOLLINGSHEAD, Plaintiff-Appellant,
v.
DC MISFITS, LLC, Defendant-Appellee.

          Appeal from the Iowa District Court for Polk County, David May, Judge.

         A plaintiff appeals the summary dismissal of his dramshop claim.

          Robert B. Garver, West Des Moines, for appellant.

          Thomas 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.

          BOWER, JUDGE

         Jeramy Hollingshead appeals the summary-judgment order dismissing his dramshop claim against DC Misfits LLC.

         In 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.

         In 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.[1] 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.

         Iowa's 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 the injury.

         Substantial compliance with section 123.93's notice requirements will suffice. See Arnold, 259 N.W.2d at 752.

         Summary 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)).

         Hollingshead's 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. ...


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