American States Ins. Co. v. City of Dubuque, 54514

• Decision Date: 05 May 1971
• Docket Number: No. 54514,54514
• Parties: AMERICAN STATES INSURANCE COMPANY and Aetna Casualty & Surety Company, Appellants, and Transamerica Insurance Company, Plaintiff, v. CITY OF DUBUQUE, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 601

186 N.W.2d 601

AMERICAN STATES INSURANCE COMPANY and Aetna Casualty & Surety Company, Appellants, and Transamerica Insurance Company, Plaintiff, v. CITY OF DUBUQUE, Iowa, Appellee.

No. 54514.

Supreme Court of Iowa.

May 5, 1971.

David W. Leifker, Dubuque, for appellants.

David L. Hammer and Martin D. Hill of O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque; and R. N. Russo, City Solicitor, City of Dubuque, for appellee.

REES, Justice.

This is an action at law in which the plaintiffs, as subrogees of Rainbo Oil Company, seek to recover sums paid by them to their insured under the terms of the plaintiffs' respective fire insurance policies as a consequence of a fire loss at Rainbo Oil Company in Dubuque, Iowa, on February 8, 1969.

The petition of the plaintiffs is in three divisions, in each of which the respective plaintiffs assert negligence on the part of the defendant, City of Dubuque. Division I is the claim of the plaintiff American States Insurance Company seeking to recover the sum of $30,000. Division II is the claim of plaintiff Aetna Casualty & Surety Company seeking to recover the sum of $30,000. Division III is the claim of plaintiff Transamerica Insurance Company seeking to recover the sum of $50,000. The claim pleaded in the petition in Division III, that is to say, the claim of plaintiff Transamerica Insurance Company, is not involved in the matter before us. The several plaintiffs each alleged in the separate divisions of the petition essentially the same facts, attributing the loss of their insured to a shortage of water available to fight a fire which occurred at the place of business of Rainbo Oil Company in the City of Dubuque on February 8, 1969, which destroyed the insured's building and its contents. The plaintiffs allege the loss to their insured resulted from the negligence of the City of Dubuque in not affording sufficient water to fight the fire. The shortage of water is alleged to have been a proximate result of specified negligent acts or omissions of the defendant City.

Upon the filing of the petition of the plaintiffs, defendant City filed its motion to dismiss as to the claims of American States Insurance Company and Aetna Casualty & Surety Company on the grounds that the notice required to be presented to the City within sixty days after loss or injury in accordance with section 613A.5, Code of Iowa, 1966, was not sufficient in that:

(1) It failed to set forth the place of the alleged loss; and

(2) It failed to set forth the circumstances of the alleged loss. Both items are required by the cited statute. The trial court sustained ground two of the motion to dismiss and overruled ground one insofar as the motions applied to both of the appellant-plaintiffs. We affirm the trial court.

Section 613A.5, Code, 1966, which we must apply to the matter before us, is as follows:

'Limitation of actions. Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 shall commence an action therefor within three (3) months, unless said person shall cause to be presented to the governing body of the municipality within (60) days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within fifteen (15) days after demand by the municipality. No action threfor shall be maintained unless such notice has been given and unless the action is commenced within two (2) years after such notice. * * *'

We have been called upon to construe and apply the above cited statute twice since its enactment. See Boyle v. Burt (Iowa 1970), 179 N.W.2d 513, and Sprung v. Rasmussen (Iowa 1970), 180 N.W.2d 430. In Boyle v. Burt we were concerned with the effort of a defendant held liable to attempt recovery from the municipality involved for contribution or indemnity, and in that case there was an entire lack of notice of claim. In Sprung we were concerned with the timeliness of filing of notice of claim in an instance where the claimant was allegedly incapacitated beyond the notice period.

The notices in the case at bar are, to say the least, unusual. The notice in each case is captioned, 'Notice of Subrogation Interest and Lien', is directed to City Clerk, City of Dubuque, Dubuque, Iowa, and embraces the following language:...