Country Mutual Insurance Company v. Mcnelly, No. 9-459/08-1880 (Iowa App. 7/22/2009), No. 9-459/08-1880

• Court: Court of Appeals of Iowa
• Writing for the Court: Robinson
• Parties: COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PAMELA MCNELLY and SHAWN MCNELLY, Defendants-Appellants.
• Decision Date: 22 July 2009
• Docket Number: No. 9-459/08-1880

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COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee,
v.
PAMELA MCNELLY and SHAWN MCNELLY, Defendants-Appellants. No. 9-459/08-1880 Court of Appeals of Iowa. Filed July 22, 2009

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

Defendants appeal the district court's grant of summary judgment to plaintiff, and denial of their motion for summary judgment, in this action seeking a declaratory judgment concerning uninsured motorist coverage. AFFIRMED.

Gail E. Boliver of Boliver & Bidwell Law Firm, Marshalltown, for appellants. Wendy D. Boka and Barbara A. Hering of Hopkins & Huebner, P.C., Des Moines, for appellee.

Considered by Sackett, C.J., and Vogel, J., and Robinson, S.J.^*

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ROBINSON, S.J.

I. Background Facts & Proceedings

Pamela McNelly, a resident of Iowa, insured a motorcycle through Country Mutual Insurance Company. The headquarters for Country Mutual are in Illinois. The insurance policy was issued by an Iowa agent. The decision to approve Pamela's application was made by an insurance agent in Iowa. Country Mutual insures drivers in Iowa and Colorado, as well as other states.

On September 1, 2006, in El Paso County, Colorado, Pamela permitted Shawn McNelly to drive the motorcycle. She was the passenger. The McNellys claim that another driver made a sharp and erratic lane change in front of them, and this caused them to lose control of the motorcycle and suffer injuries. The other driver was never identified, and they characterize this as a "miss and run" accident.

The McNellys sought coverage for their injuries under the uninsured motorist provisions of the Country Mutual policy. They rely on a provision which states the company "will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by an insured and caused by an accident." The company denied coverage based on a policy provision stating an uninsured motor vehicle "is a hit and run vehicle" which hits the insured or the insured's vehicle.

On December 6, 2007, Country Mutual filed a petition for declaratory judgment, claiming there was no coverage under Iowa law because there was no

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physical contact between the McNellys' motorcycle and the other vehicle.¹ On May 2, 2008, the district court determined Iowa law should apply in this case. The court found Iowa had the most significant relationship to the transaction in dispute. The court stated, "Iowa, as the place of contracting and negotiation, has a significant interest in regulating the agreed upon exchange between the parties, and in protecting their justified expectations under the contract." The court found the parties had agreed, under the terms of the contract, that physical contact was necessary to invoke the provisions of the uninsured motorist coverage.²

The McNellys filed a motion for summary judgment, claiming "a denial of coverage based on an accident involving a miss-and-run instead of a required hit-and-run is contrary to public policy." They cited cases from several other states, including Colorado, which had found that uninsured motorist coverage could be available based on a "miss and run" accident. See e.g., Farmers Ins. Exch. v. McDermott, 527 P.2d 918, 920 (Colo. Ct. App. 1976) (holding "the physical contact restriction in the policy is an impermissible restriction upon the broad coverage required under the uninsured motorist statute"). Country Mutual resisted the McNellys' motion for summary judgment, and filed its own motion for summary judgment. Country Mutual asserted that under Iowa law, and based on the terms of the policy, it had no obligation to the McNellys. The McNellys resisted Country Mutual's motion for summary judgment.

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The district court granted Country Mutual's motion for summary judgment, and denied the McNellys' motion. The court found that under Iowa law, as stated in Claude v. Guarantee National Insurance Co., 679 N.W.2d 659, 666 (Iowa 2004), physical contact is required for recovery of uninsured motorist benefits. The court rejected the McNellys' public policy arguments. The court concluded Country Mutual had no obligation to the McNellys' under the insurance policy for the accident that occurred in Colorado on September 1, 2006. The McNellys appealed the district court's decision.

II. Standard of Review

We review the district court's ruling on a motion for summary judgment for the corrections of errors at law. See Iowa R. App. P. 6.4. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa 2006). A court should view the record in the light most favorable to the non-moving party. Kern v. Palmer Coll. of Chiropractic, 757 N.W.2d 651, 657 (Iowa 2008). In determining whether there is a genuine issue of material fact, the court affords the non-moving party every legitimate inference the record will bear. Id.

III. Merits

A.

The McNellys contend the district court should have applied the case of Hall v. Allied Mutual Insurance. Co., 261 Iowa 1258, 158 N.W.2d 107 (1968). In Hall, the parties agreed there was uninsured motorist coverage for Iowa plaintiffs who had been injured by a Texas driver in Oklahoma. Hall, 261

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Iowa at 1261, 158 N.W.2d at 109. The only question before the court was the extent of that coverage. Since recoverable damages were different in Iowa and Oklahoma, the court had to determine which law applied. Id. at 1262, 158 N.W.2d at 109. The Iowa Supreme Court concluded that in a...