Lemrick v. Grinnell Mutual Reinsurance Co.
263 N.W.2d 714
Iowa
1978
Check Treatment

*1 Volk, 220 N.W.2d at 610- also State See

611. entitled total defendant was

In sum of the date fixed days least 15 notice

to at appeal to district court so trial on his desired, could, effect a 762.15

that he days “at least ten before

jury demand (Emphasis supplied). for trial’’.

time set fail- follows district court’s

It therefore 762.12 served in effect to

ure to observe § 762.15

unlawfully deny Uebberheim by jury. Consequently, denial

right to trial request continuance consti-

of defendant’s which

tuted an abuse of discretion dictates

a reversal. Finally

IV. considered is Uebberheim’s “parole” district court’s terms.

challenge to reversal, necessitating a remand for

Our trial, makes resolution thereof unnec-

new

essary. Accordingly, express no view as procedure employed proba- either the presently imposed. conditions

Reversed and remanded to district court

for trial anew. Leroy LEMRICK, Appellee, MUTUAL

GRINNELL REINSURANCE

COMPANY, Appellant. LEMRICK, Individually, and Bar- Lemrick, Executor of the Estate of

ton Lemrick, Deceased, Appellees,

GRINNELL MUTUAL REINSURANCE

COMPANY, Appellant.

No. 60317.

Supreme Court of Iowa.

March

Smith, Peterson, Willson, Beckman & Bluffs, Council appellant. Leonard, Sidney, appellees. Robert F. MOORE, J., REES, Considered C. UHLENHOPP, HARRIS, and McCOR- MICK, JJ. principal, together with

UHLENHOPP, Justice. collision, case from the date of the prob- legal involves several appeal This appealed costs. Mutual in this unin- connection which arose lems presents four contentions. coverages in two automobile sured policies. I. Limitations. Grinnell Mutual *3 first the contends that statute of limitations Lemrick, spouses, Barton and Barton bars the action of and Laura’s es on their Olds- policy in a insureds” “named question tate. The here is whether their Rein- car, Mutual by Grinnell issued mobile is action Grinnell Mutual based on Leroy son Paul Their Company. surance (written policy contract), the insurance policy under that “insured” was an Lemrick negligence (tort); motorist’s the insured if Paul occupying the Oldsmobile. while former, the the action barred as the policy insured” in a “named also 1977, period years, is ten Code applicable car, by likewise issued Grinnell own Ford latter, 614.1(5), but if the it is barred oc- him while policy That covered Mutual. 614.1(2). period is two years. cars, provi- to certain subject cupying have recognize that some courts held an contained uninsured policy sions. Each applicable period ap is the one which $10,000 per with limits motorist clause to an action the insured plies accident, $20,000 per and the person and (tort). weight also policy were identical. Each clauses however, holds that the authority, action clause. payments a medical contained longer period on contract and the con except These were likewise identical Transnational Ins. applies. tract actions per person in the Olds- the limit was $5000 Simmons, 354, v. 507 Ariz.App. Co. 19 P.2d policy per person and in $1000 mobile 693; Hartford & Indem. v. Accident Co. policy. Ford Mason, (Fla.App.); Burgo 210 So.2d 474 v. Barton, Laura, occupants and Paul were Co., 259, Ill.App.3d Illinois Farmers 8 Ins. unin- of the Oldsmobile Idaho when an 371; v. 290 N.E.2d Booth Fireman’s Fund it, negligently sured motorist collided 580; Co., 521, Ins. La. 253 So.2d Detroit 218 causing bodily injuries Paul to Barton and Auto. Inter-Insurance v. Exch. Hafendor and the death of Laura. The fer, 709, 155; Mich.App. 38 197 N.W.2d Se Barton, Paul, and Laura’s estate each ex- Dierolf, lected Ins. v. Risks 138 N.J.Su $10,000 ceed exclusive of medical and burial 526; 287, A.2d per. 350 In the Matter of the expenses. Arbitration between DeLuca and Motor Ve in the payments clause Under hicle Corp., Accident Indemnification 17 paid Mutual policy, Grinnell 76, 289, N.Y.2d 268 215 N.Y.S.2d N.E.2d $5000, $3,658.07, Barton Paul and Laura’s 482; v. Schultz Allstate Ins. Ohio corresponding estate Under $2924.95. 546; 83, Misc. v. Turlay N.E.2d Farmers policy, in the Ford Grinnell Mutual clause 406; Exch., Ins. Or. P.2d Pick paid Paul $1000. ering v. American 584; collision, years two R.I. 282 A.2d Within Schleif Hardware Grinnell Mutual under uninsured Dealer’s Mut. Fire Ins. sued Tenn. 490; in the About policy. clause Ford S.W.2d Franco Allstate Ins. (Tex.); colli- years eight months after the 505 S.W.2d 789 two and Sahloff Western sion, Barton and Laura’s estate sued Grin- Cas. & Sur. 45 Wis.2d 171 N.W.2d 914; Mutual under the uninsured motorist see Anno. A.L.R.3d nell policy. clause the Oldsmobile weight have decided to follow the parties stipulated authority, the facts as we agree basically with the actions, analysis True, and submitted in those an two consolidated decisions. to the trial court on briefs. The extent the uninsured motorist clause puts cases position in a he Barton and Laura’s estate would occupy awarded principal and awarded Paul the uninsured motorist had insurance and sued him. Yet the insured is the insured and Laura’s estate motorist, suing in fact the uninsured Under that payments $2924.95. Indeed, the situa- may never sue him. clause and under the corresponding clause hit-and-run driver who is involve a in the Ford paid Mutual Actually, the insured has parties stipulat- never identified. Paul a total $6000. Barton, Paul, bought paid for a contract insur- ed that him if he has the misfortune to be Laura’s estate is each at pay er to above uninsured motorist or injured by culpable expenses. the medical and burial The lim- If the insured and in- of the uninsured hit-and-run driver. its motorist clause in the agree policy cannot and the insured is com- Oldsmobile are surer the insurer under the unin- the effective limit in pelled sue the Ford clause, reality only sured motorist we think in since Paul is covered. The action is bottomed on the To be coverages poli- in both sure, the circumstances of the paragraph: cies contain this *4 culpability motorist’s and of the insured’s company obligated shall not be [T]he damages are propositions which the insured pay under this Coverage part of the prove must in order to recover from the damages which the insured may be enti- insurer, but these are really conditions of tled to recover from the owner or opera- the insurer’s contract. The action itself tor of an uninsured automobile which appears upon us to be the uninsured represents expenses for medical services clause, without which the insurer paid payable under Medical Payments nothing irrespective would owe of the fla- Coverage grancy of the uninsured culpabil- motorist’s Grinnell Mutual contends that under this ity and the extent of the damage. insured’s paragraph it is entitled to deduct from the Mutual argues per- Grinnell with some uninsured motorist insurance the medical suasiveness, however, that if its insured payments it made. does not sue it under the clause until two We discussed the validity para of years have elapsed, longer then it can no graphs of this nature in McClure v. Employ successfully sue the uninsured motorist ers Mut. Cas. 238 N.W.2d 321 way subrogation, of as two on the years The courts are divided on the validity of against tort action him would have run having such clauses states statutes con citing Farm Mut. State Auto. Ins. Co. out— taining only provisions corresponding to our Wharton, 183, 359, 88 Nev. 495 P.2d 516A.1 of the Code. Anno. 24 A.L.R.3d Ins. Signal Citizens Co. of N. J. v. Ins. 1353, 1356-1358. But our statute contains 294, 261 Or. 493 P.2d 46. Lemricks do not additional (“duplication 516A.2 of insur deny them, pays if Grinnell Mutual it benefits”), ance or other and under that will subrogated pro rights be to their tanto section paragraphs of this nature are valid. against the uninsured motorist. do not McClure v. supra. Mut. Cas. pursue argument, this and make See also Westhoff v. American Interinsu upon it, pronouncement no as we think the Exch., (Iowa); rance Fisher insured’s action on the uninsured motorist v. State Farm Mut. Auto. Ins. clearly clause is so contractual 721; Cal.App.2d 52 Cal.Rptr. North subrogation matter of cannot change the Rhodes, western Mut. Ins. Co. v. 238 Cal. injustice If an regarding result. exists time 467; App.2d Cal.Rptr. Stuyvesant suits, subrogation proper limits on ave- Johnson, Ins. (Fla. So.2d legislature. nue would be to the App.); Cooper v. Currigan, Mich.App. 451; that the action by hold Barton and Terry v. Aetna Cas. & timely. Laura’s estate was (Tenn.). Sur. 510 S.W.2d II. Expenses. Deduction of Medical question applica- thus relates to the payments the medical bility Under clause of the paragraph of this under present facts. paid exist, Grinnell Mutual Two situations illustrated fol- clause, he only an insured has motorist recovering first situation lows. In the that clause other expense damage; other there- medical $2000 quoted policy paragraph in the fore the does not damage for a play. position medi- come into His is that $2000 situation second quoted only paragraph applies when the expense and cal $8000 expense up part $10,000. In the in- medical makes of the dam- each situation total of age limit of an insured seeks to recover an uninsured motorist sured has motorist clause. pays each the insurer and in payments under the medical insured $2000 Is such the of the policy para- intention clause. graph, or is intention that Barton’s expense shall be deduct- $3658.07 McClure, poli 516A.2 and Under § ed limit of cy paragraph can be drafted enforced $10,000, leaving uninsured mo- the insurer to deduct $2000 which allows torist insurance Barton? para- the uninsured mo payments from point graph clear on and we in either of two situa insurance torist resolve therefore the issue tions, each insured collects total of so that Mutual. claim before us we allo- language But the insurance. payments cate the medical made to must show that such is the paragraph leaving over and above intent, ambiguity paragraph and an $10,000 of uninsured motorist resolved insurer. is of course available. Melson v. Illinois National Ins. Mut. Benzer v. Iowa Tornado *5 1025, 1028, Ill.App.3d 274 1 N.E.2d Moreover, (Iowa). exist 385 (“We proven 666 hold that where such as 516A.2 does not a statute § ence of incurred the in- undisputed damages of such insur automatically allow deduction greater sured are than combined total An payments. appropriate ance medical of uninsured and medical cover- implementing paragraph policy age, crediting provision apply.”). cannot essential. Cannizzo v. Guarantee Ins. Wittig See also v. United Services Auto Cal.App.2d Cal.Rptr. (N.D.Ind.); F.Supp. Taylor present Each of the three claims is Mut. State Farm Auto. Ins. 237 So.2d situation, is, the like the first that insured (La.App.); Hutchison v. Hartford Acci- damage has of at his least above dent & Indem. A.D.2d expense. take Barton’s 789; Lyon v. Hartford Accident & N.Y.S.2d parties stipulated claim as illustrative. The Indem. 25 Utah 2d 480 P.2d 739. $10,- more Barton’s than Paragraphs. III. “Other-Insurance” medical expense, 000 over and above his Only policy the Oldsmobilie covered Barton present which was As between $3658.07. Laura, but both parties, Barton is therefore to re entitled Ford The policy covered Paul. uninsured $13,658.07 cover from the at uninsured clauses policies each contain quoted policy paragraph motorist. paragraphs, having “other-insurance” two states that Grinnell Mutual liable parts. part provision is an “excess” One coverage under uninsured motorist for that “pro provision. and the other rata” part of Barton’s which is payable anti-duplication paragraphs initially These payments coverage. under medical present complication no as to the claims of may reasonably argue that he therefore estate, but they present Barton and Laura’s expense cannot recover his medical problem as to Paul’s claim because of his under the uninsured motorist cov coverage. double problem That in turn erage but he still of other dam spills over into the claims of Barton and ages he can which recover the unin Laura’s estate. coverage. sured motorist Stated another way, is not recovering Barton contends he In essence Grinnell Mutual contends that expense his under the paragraphs virtue of other-insurance motorist, look to own Paul must first unless in Paul’s an insur- writing rejects the coverage. object the Oldsmobile Paul, Barton, Laura’s es- permit Hence 516A.2is to § ance. insurers to hold maxi- $20,000of that recovery divide the limit of mum tate must to the minimum required them, among can then and Paul amount. the Ford uninsured motorist insur- look to The insurer here relies on the other- make up balance of ance insurance paragraphs to reduce the recov The net result be to re- maximum. would ery of Barton and Laura’s estate below recovery of Barton and duce each. think 516A.2 not § does $10,000 each below from the permit other-insurance paragraphs to be Mu- uninsured motorist insurance. Grinnell used in way; this constitutes a misuse tual relies McClure v. Mut. McClure, As 516A.2. we § stated in we Co.,supra, (Iowa). Cas. N.W.2d 321 See would not an uphold other-insurance policy also Westhoff v. American Interinsurance paragraph but for 516A.2. The purpose § Exch., supra, of that section is not permit an insurer to case, however, present goes step reduce claims below minimum lim required McClure and With re- beyond Westhoff. its, but to hold claims within re minimum present to the spect issue McClure dealt quired limits. The para other-insurance stacking with of uninsured motorist cover- graphs do simply apply here, for no one insured; appropri- an ages by held that is seeking to break through the limits. We may, paragraphs ate other-insurance agree thus with the insureds that Barton 516A.2,effectively recovery prevent of an § estate may Laura’s recover the limit of exceeding highest coverage amount lim- $20,000 on the Oldsmobile policy any one policy. it of Westhoff reaffirmed may recover under the Ford position. We think that result is consonant purpose of 516A.1 in requiring minimum But here we have the reverse: not coverage and does not legisla conflict with by any attempt insured to stack and collect tive intent in 516A.2in insur permitting attempt by more than but an *6 ers to limit their liability to the minimum three of the insureds to recover required coverage. particular In the situa bodily-injury damage when of each is at the here, the insureds rightly can demand $10,000 and the motorist not only the minimum uninsured motorist $30,000. up to The insureds con- limits add insurance but also the entire amount of under tend that should receive insurance, minimum uninsured motorist and and Lau- the Ford and that Barton rightly the insurer cannot invoke the other- should each un- receive ra’s estate paragraphs 516A.2 to § limit to its of der the defeat that demand. $20,000. The three their of them framed on that two lawsuits basis. IV. The Interest. trial court awarded interest on the recoveries from the of date problem This takes the intent us into the collision. Grinnell Mutual asserts legislature in enacting our uninsured interest should commence with the date law, Code, chapter 516A the the or at judgments, very the from earliest enacting in the section particularly second parties the date the fixed the damages law, the 516A.2. We discussed stipulation. legislation of that McClure and purpose in Ass’n, v. Iowa Mut. in in Benzer Tornado all were three claims (Iowa). courts supra, unliquidated. Kellogg Other v. State See Iowa subject discussed the at general have Traveling Men’s Iowa 551, 556 et poli- See Anno. 28 A.L.R.3d N.W.2d 559. This is true length. although the object assure all seq. imposed ceiling of 516A.1is to cies on the amounts recov- erable; ceiling motorists at insur the least minimum before amounts recoverable, against culpable the the the prove ance hazard of the claimants had to claims, uphold judgment the entered the unliquidated of their amounts exceed except to the equal had trial modification as amounts those then ceiling amounts. interest. the rule is MODIFIED AND AFFIRMED. general due money becomes time that from the

runs unliquidated case of payable, and concur, All except Justices McCORMICK contract, claims, those founded including JJ., HARRIS, who concur specially. liquidated, they become the is date McCORMICK, spe- Justice judgment. (concurring Thomas ordinarily date of the & cially). v. Buffalo Caster & Caster

Truck Corp., N.W.2d 532 Wheel opinion except I concur in ex Iowa, exception In basis of II. accordance with division when the claim rule unliquidated my special views concurrence McClure ists to at a time. complete particular damage Mut. Cas. although from that time interest runs (Iowa 1976),

Then I would hold specific in a not been fixed be payments cannot deducted because they Ry., City v. Iowa Electric Bridenstine sum. duplication do constitute benefits N.W. Actions for Iowa meaning within the of Code § 516A.2. ordinarily come within this wrongful death Thorpe, 215 N.W.2d exception, Wetz HARRIS, J., special concurs in this con- ac injury personal (Iowa), whereas currence. do unless the ordinarily do not so tions at complete damage appears to have been States time. Jacobson United

particular 330, 130 N.W. 122. 150 Iowa

Gypsum appears estate

The claim of Laura’s exception. While us to come within contract, the measure of

the action is on

recovery applicable measure poli to the (subject In re the MARRIAGE OF Jean Ann $10,000), but Wetz the ceiling cy Short, Michael SHORT and E. Jr. We thus complete at Laura’s death. SHORT, Upon Ann Petition Jean as the court did that interest runs hold trial Appellee, concerning Michael E. her death. Jr., SHORT, Appellant. *7 show, The record does No. 60210. damages were com- of Barton time, particular and those cases plete at Iowa. Supreme Court of general under the rule that fall March deter- runs from the date amounts not, however, at the date This was mined. prior at the date of the judgment, but 10,1976, which fixed

stipulation, September damages excess each.

their as in each, ceiling their the.

Since from recoverable

amount their recoverable, Mutual, any was stipulation. by the

became fixed September runs cases interest

their judgments

10, 1976, modify their

accordingly.