Esad Osmic v. Nationwide Agribusiness Insurance Company

841 N.W.2d 853, 2014 WL 88240, 2014 Iowa Sup. LEXIS 4
CourtSupreme Court of Iowa
DecidedJanuary 10, 2014
Docket12–1295
StatusPublished
Cited by19 cases

This text of 841 N.W.2d 853 (Esad Osmic v. Nationwide Agribusiness Insurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esad Osmic v. Nationwide Agribusiness Insurance Company, 841 N.W.2d 853, 2014 WL 88240, 2014 Iowa Sup. LEXIS 4 (iowa 2014).

Opinions

MANSFIELD, Justice.

We must decide whether a policy provision limiting the time to file an action to recover underinsured motorist’s benefits is binding on a passenger who was injured while riding in the named insured’s vehicle. The passenger brought this action approximately one month after the deadline set forth in the policy, which required suit to be commenced “within two years after the date of the accident.”

We conclude the passenger, as an insured and a third-party beneficiary of the policy, does not have greater rights than the policyholder. Thus, the passenger cannot avoid the contractual time limitation unless the policyholder under similar circumstances would have been able to avoid it. Because the record, when viewed in the light most favorable to the passenger, does not demonstrate either that the policy’s time limit was unreasonable or that the insurer should be equitably es-topped from enforcing it, we hold the insurer’s motion for summary judgment should have been granted. Accordingly, we vacate the decision of the court of appeals, reverse the order of the district court, and remand for entry of summary judgment in favor of the insurer.

I. Facts and Procedural Background.

On May 23, 2009, Esad Osmic, his wife, and his children were riding as passengers in a Ford Explorer owned and operated by Esad’s brother Selim. Some members of Selim’s immediate family were also riding in the vehicle. As the Explorer was traveling northbound on Washington Street/Highway 218 in Waterloo, a Nissan Sentra that was owned and driven by Rochelle Heasley entered the highway. According to witnesses, Heasley1 s Nissan cut across two lanes without clearance to do so. This forced Selim to take immediate evasive action. He swerved to avoid being hit, but as a result, he lost control of the Explorer. It ended up rolling over in the grass embankment next to the highway. Selim was ejected from the vehicle.

The police responded to the accident. Heasley was cited for improper merging. At the time, Heasley was insured by Progressive Insurance, with coverage limits of $50,000 per claim and $100,000 per occurrence. Selim had coverage with Nationwide Agribusiness Insurance Company (Nationwide), including underinsured motorist (UIM) coverage.

In October 2009, Esad began treatment for right shoulder pain which he attributed to the May 2009 accident. Arthroscopy was recommended in November 2009, and Esad eventually underwent this procedure in November 2010.

Meanwhile, in June 2010, approximately thirteen months after the accident, Esad’s counsel submitted a representation letter to Nationwide. Nationwide’s claims representatives thereafter contacted the office of Esad’s counsel and left phone messages approximately once a month for the next eight months asking for Esad’s medical records. In addition, a letter was sent on December 3, 2010, to Esad’s counsel requesting those records.

[856]*856On September 13, 2010, a Progressive claims representative advised Nationwide’s claim representative that Progressive had settled with Selim and his family for $65,000, leaving only $85,000 in remaining coverage for the accident.

On March 7, 2011, Esad’s attorney submitted a demand on Heasley’s Progressive policy on behalf of Esad and his two children. He asserted that Esad had suffered a right shoulder injury, a left inguinal hernia, and a low back injury as a result of the accident. He also maintained that the children had suffered both physical and psychological injuries from the accident. The demand letter sought $178,500 for Esad and $13,000 each for the two children. The letter added, “The statute is rapidly approaching in this matter. I hope to hear from you soon to see if these matters can be resolved.” At that time, approximately ten weeks remained before the May 23, 2011 expiration of the two-year statute of limitations to bring suit against Heasley. See Iowa Code § 614.1(2) (2011) (requiring actions based on personal injury to be brought within two years).

Upon receipt of this letter, Progressive informed Esad’s attorney that only $35,000 remained on its policy to cover claims arising from the May 23, 2009 accident. Progressive offered to pay $25,000 to Esad and $5000 for each of his children to settle the claims.

In response to the offer from Progressive, Esad’s counsel finally initiated contact with Nationwide by phone on March 25, 2011. During the conversation, Nationwide requested a copy of the demand letter to Progressive and copies of Esad’s and his children’s medical records.

On March 28, 2011, Esad’s counsel provided Nationwide’s claims representative with a copy of his demand letter to Progressive, along with copies of his clients’ medical records and medical bills. The letter also summarized the status of Progressive’s remaining insurance coverage and its outstanding settlement offer of $25,000 for Esad and $5000 each for the two children. The letter further stated:

Please provide me with a copy of your declaration page so I know and can confirm for my client what the underin-sured limits are. Also, please advise in writing if I may proceed with settling with Progressive for the amount identified above.
I realize I have not provided you with the three year prior medical records. I should have those in the very near future and will forward them to you immediately. If you need anything further, please advise. I look forward to hearing from you to conclude the claim with the tortfeasor as our statute is running.

On April 1, 2011, Esad’s attorney sent Nationwide a letter enclosing medical records for Esad for the three years prior to the accident. The letter reiterated:

Please advise as to your policy limits as soon as possible and also provide me with a copy of the declaration page. Also, please let me know if I may proceed to settle the case with Progressive for the tortfeasor’s limits as previously explained. I look forward to hearing from you in the very near future.

On April 12, 2011, Nationwide’s claims representative wrote back to Esad’s attorney. She granted consent to settle the claims with Progressive for $25,000, $5000, and $5000, respectively. She added, “Regarding your request for a copy of the Declaration page, I do not have consent from our Insured to provide this information.” Finally, she stated:

I am currently reviewing the information provided regarding Esad’s injury. I have had the opportunity to review the claim information pertaining to the claims of [the children] and it appears [857]*857the settlement offers presented by Progressive of $5,000 for each of these claims will adequately indemnify them....
I am aware of the fast approaching statute expiration date and will be in contact with you regarding the underin-sured claim of Esad once I have had the opportunity to review the information you have provided.

On May 4 and May 11, Esad’s attorney sent additional medical records and an additional medical bill to Nationwide.

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Cite This Page — Counsel Stack

Bluebook (online)
841 N.W.2d 853, 2014 WL 88240, 2014 Iowa Sup. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esad-osmic-v-nationwide-agribusiness-insurance-company-iowa-2014.