Arnold v. Lang, 2-59164
Decision Date | 23 November 1977 |
Docket Number | No. 2-59164,2-59164 |
Citation | 259 N.W.2d 749 |
Parties | Rick ARNOLD, Appellant, v. Joseph H. LANG, d/b/a Joe Lang's Tap, Appellee. |
Court | Iowa Supreme Court |
Seymore M. Raben, Davenport, for appellant.
Gerry M. Rinden, of Klockau, McCarthy, Lousberg, Ellison & Rinden, Rock Island, Ill., for appellee.
Submitted to MOORE, C. J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.
Plaintiff appeals from pretrial dismissal of his dram shop action for failure to comply with the claim notice provision of Section 123.93, The Code 1973. We affirm.
September 14, 1974, plaintiff, Rick Arnold (Arnold), was injured in an altercation with two other patrons at a tavern operated by defendant, Joseph H. Lang (Lang). Arnold subsequently retained attorneys Carlin and Darbyshire to represent him with regard to the incident. However, these lawyers soon withdrew upon discovering they represented Iowa Mutual Insurance Company of DeWitt (Iowa Mutual), with whom Lang apparently had some insurance coverage.
Arnold later engaged the services of other attorneys who in turn notified Iowa Mutual of their representation as to the September 14th incident. July 29, 1975, Arnold sent a "formal writing" to Iowa Mutual.
Sometime thereafter Arnold discovered Lang's dram shop liability carrier was Merchant's Mutual Bonding Company (Merchant's Mutual), not Iowa Mutual. August 11, 1975, or almost eleven months after the event Arnold forwarded a written claim notice to Merchant's Mutual.
October 13, 1975, Arnold filed a petition seeking recovery from Lang for injuries suffered as a result of the above noted dram shop affray. In relevant part plaintiff thereby sought redress under Code § 123.92.
By a December 10, 1975, amendment to his petition, Arnold alleged he had given full and adequate notice of his injury-related claim as required by § 123.93, and in support thereof affirmatively related the foregoing factual situation. Lang nevertheless moved to dismiss Arnold's dram shop action for failure to give a timely and appropriate claim notice. Specifically, Lang alleged no such written notification had been given him or Merchant's Mutual within six months of the incident.
In resisting Lang's dismissal motion Arnold asserted § 123.93 violates equal protection and due process clauses of the Fourteenth Amendment.
January 13, 1976, trial court sustained Lang's aforesaid motion. This appeal followed.
Plaintiff here poses these two basic issues:
(1) Did trial court err in dismissing Arnold's petition for noncompliance with § 123.93?
(2) Is § 123.93 violative of due process or equal protection?
I. Where, as here, a defendant's pretrial motion to dismiss has been sustained we construe pleadings in a light most favorable to plaintiff, with doubts resolved in his favor, and accept challenged allegations as true. Weber v. Madison, 251 N.W.2d 523, 525 (Iowa 1977); Briney v. Katko, 197 N.W.2d 351, 352 (Iowa 1972). However, trial court's conclusions of law and interpretation of pertinent statutes are not binding on appeal. Westhoff v. American Interinsurance Exchange, 250 N.W.2d 404, 408 (Iowa 1977); Wolder v. Rahm, 249 N.W.2d 630, 632 (Iowa 1977).
II. Trial court, in sustaining Lang's motion to dismiss, found proper notice had not been given to defendant or his insurance carrier as required by § 123.93, which states in relevant part "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 his intention to bring an action under this section, indicating the time, place and circumstances causing the injury."
Arnold contends his pleadings sufficed to generate a fact issue as to the timely giving of a § 123.93 claim notice. As best determinable he alternatively maintains any failure of literal compliance with the above quoted enactment should not be fatal because Lang had actual knowledge of the event, therefore he suffered no notice-absent harm.
He also asserts timely notice to defendant's general liability insurer sufficed. We disagree. Assuming, arguendo, Iowa Mutual was Lang's general liability carrier, the giving of a claim notice to that insurer would in no event be of any effect for purpose of the moment. Admittedly, § 123.93 contains the unqualified phrase "insurance carrier ". But these italicized words, when construed according to context and purpose of the enactment, must mean the dram shop insurance carrier. See Code §§ 4.1(2), 4.6, 123.92-123.94; Iowa Departmental Rules (Iowa Beer and Liquor Control Dept.) 8.1(123) (1973). Any other conclusion would be patently unreasonable and beyond the scope of legislative intent. See State v. Berry, 247 N.W.2d 263, 264 (Iowa 1976).
In response to Arnold's other above noted contentions Lang reads the record as conclusively demonstrating the former's fatal failure to follow § 123.93, heretofore quoted. Relying on the Municipal Tort Claims Act, ch. 613A, and interpretive case law, he contends substantial compliance with the notice provision is a condition precedent to Arnold's recovery right, unaffected by the latter's alleged actual knowledge. Lang additionally denies the record reveals any such awareness on his part.
At this point Harrop v. Keller, 253 N.W.2d 588 (Iowa 1977), comes into play. We there determined the presently involved claim notice requirement, extended due to incapacitation, was fulfilled by timely service of an original notice. More to the point, this court said, 253 N.W.2d at 592-593:
In light of the foregoing, Lang's reliance on our analogous construction of ch. 613A is apt.
Pursuing the subject further, our Dram Shop Act (Code ch. 123) created a cause of action unknown to common law. Wendelin v. Russell, 259 Iowa 1152, 1154-1155, 147 N.W.2d 188, 190 (1966). That means § 123.93 must be accepted as a special statutory limitation qualifying a given right, not as a pure statute of limitations. Consequently, this statement in Boyle v. Burt, 179 N.W.2d 513, 515 (Iowa 1970), quoting from Secrest v. Galloway Co., 239 Iowa 168, 173, 30 N.W.2d 793, 796 (1948) is instantly applicable:
See also Lunday v. Vogelmann, 213 N.W.2d at 907, and citations.
Consistent with the above quotes from Harrop v. Keller and Boyle v. Burt, the claim notice provision of § 123.93 must be deemed an inherent element of the new cause of action created by the legislature when it enacted our Dram Shop Act. Cf. Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970).
However, substantial compliance with the notice provisions of § 613A.5 will suffice. As stated in Vermeer v. Sneller, 190 N.W.2d 389, 394-395 (Iowa 1971):
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