Vermeer v. Sneller, 54537

• Decision Date: 27 September 1971
• Docket Number: No. 54537,54537
• Citation: 190 N.W.2d 389
• Court: Iowa Supreme Court
• Parties: Marlene VERMEER, by her Father and Next Friend, Bernard Vermeer, and Bernard Vermeer, Appellants, v. Mary SNELLER et al., Appellees.

Page 389

190 N.W.2d 389

Marlene VERMEER, by her Father and Next Friend, Bernard Vermeer, and Bernard Vermeer, Appellants, v. Mary SNELLER et al., Appellees.

No. 54537.

Supreme Court of Iowa.

Sept. 27, 1971.

Norman G. Bastemeyer, of Klay & Bastemeyer, Orange City, for appellants.

Robert E. Beebe, of Kindig, Beebe, McCluhan & Rawlings, Sioux City, for appellees John Wesselink and The Wessenlink Insurance Agency, Inc.

Gerald M. Kraai, of Shull, Marshall, Marks & Vizintos, Sioux City, for appellee Mary Sneller.

REYNOLDSON, Justice.

This is an appeal from the trial court's order sustaining motions by defendants Mary Sneller and Sioux Center Community School District to dismiss plaintiffs' petition for failure to comply with the notice of claim requirement of 62 G.A., ch. 405 (1967), now § 613A.5, Code, 1971.

Plaintiffs' petition, in several divisions, was filed on April 23, 1970. Plaintiff Marlene Vermeer was a minor 15 years old on April 24, 1968, the date she was allegedly injured while participating in a physical education class at defendant district's high school. Defendant Mary Sneller was class instructor at the time of the accident.

The petition further alleges that immediately following the accident Marlene Vermeer reported her injury to the secretary of the principal of the high school.

On May 31, 1968 defendant John Wesselink of Wesselink Insurance Agency prepared a written report of the time, place, circumstances and extent of plaintiff's injuries. Wesselink Insurance Agency was alleged to be agent of defendant school district in the acquisition and administration of group insurance for accidental injury to students and of liability insurance for the school district and its agents and employees. This agency was also alleged to be agent of defendant district for the purpose of receiving all claims against the district for personal injury or medical expense.

After making an investigation and report of the accident, Wesselink is alleged to have retained a copy of the report and to have filed said report with defendant district's group medical insurer under a group medical policy.

Plaintiffs' petition further alleged that subsequently Charles Irwin, superintendent of defendant school district, having knowledge of the time, place, circumstances and nature of plaintiff's accident and injuries, submitted a written claim to the district's liability insurance carrier.

Plaintiffs' petition concludes by alleging they have substantially complied with the requirements of § 613A.5, or in the alternative, that the school district has waived the statutory requirements or is now estopped from claiming such failure as a defense.

Defendant Wesselink and Wesselink Insurance Agency successfully moved to dismiss divisions of the petition affecting them. Plaintiffs do not appeal from this ruling, but do appeal from the trial court's ruling sustaining similar motions filed by defendants Mary Sneller and Sioux Center School District.

Four errors are asserted and relied upon for reversal:

First, plaintiffs allege trial court erred in dismissing plaintiffs' petition as to defendant school district. This ruling impliedly sustained defendant's contention that a municipality cannot waive strict compliance with the statutory notice of claim requirement, and rejected plaintiffs' allegation defendant was estopped from asserting this defense.

Second, plaintiffs contend trial court erred in not finding plaintiffs had alleged facts constituting substantial compliance with the notice of claim requirement.

Third, plaintiffs allege Marlene Vermeer's minority tolled the notice statute and the court thus erred in dismissing her causes of action.

Fourth, plaintiffs allege trial court erred in dismissing plaintiffs' causes of action against Mary Sneller because the notice of claim statute, § 613A.5, is applicable only to actions brought against a municipality and compliance with it is not a condition precedent to an action against the individual agent or employee of a municipality.

We reverse the trial court and remand on the basis of the second and fourth assigned errors.

I. For clarity we first consider the fourth assigned error. We note the statute involved, chapter 613A, provides in relevant sections:

Section 613A.5: 'Every person who claims damages from any municipality * * * 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 * * * loss or injury a written notice stating the time, place and circumstances thereof * * *.'

Section 613A.8: 'The governing body shall defend any of its officers and employees, whether elected or appointed and, except in cases of malfeasance in office or willful or wanton neglect of duty, shall save harmless and indemnify such officers and employees against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of duty.'

Plaintiffs argue the notice of claim requirement stated in § 613A.5 applies only to an action against a municipality and has no application to an action against an employee for the employee's negligence. Therefore, plaintiffs reason defendant-employee Mary Sneller is not entitled to benefit of the 60-day notice of claim provision and trial court erred in dismissing plaintiffs' actions against her, even if the notice to the school district is held to be lacking or defective.

Defendants argue trial court did not err in dismissing the causes of action against Mary Sneller because the requirement in § 613A.8 that employer defend, save harmless and indemnity the employee makes defendant district and not Sneller the real party in interest. They thus contend substantial compliance with § 613A.5 is still a condition precedent to maintaining an action against an individual employee of the municipality under Chapter 613A, Code, 1971.

It is true that § 613A.8 provides for indemnification of the employee by the municipality, except in cases of malfeasance in office or willful or wanton neglect of duty. There is nothing in chapter 613A. Code, 1971, indicating it was the legislature's intent to abolish the right of an injured party to sue a municipal employee for the employer's negligence. Indeed, if this court were to follow the reasoning of defendants we would have the anomalous situation of a statute which on one hand strikes down a municipality's immunity from liability, and on the other hand abolishes a long recognized cause of action against an individual municipal employee for his negligent acts.

Because it provides for indemnification for an employee's liability, § 613A.8 implies an employee can be held liable in an individual cause of action. While we need not undertake a lengthy discussion of the law of indemnity, we observe that as a general proposition a cause of action for indemnity accrues or becomes enforceable when the indemnitee's legal liability becomes fixed or certain as in the entry of a judgment or a settlement. Kroblin Transfer, et al. v. Birmingham Fire Ins. Co., 239 Iowa 15, 18, 30 N.W.2d 325, 327 (1948); Duke v. Tyler, 209 Iowa 1345, 1349, 230 N.W. 319, 320--321 (1930); Samuelson v. Chicago, Rock Island & Pacific R.R. Co., 287 Minn. 264, 268, 178 N.W.2d 620, 624 (1970): Furnish, Distributing Tort Liability: Contribution and Indemnity in Iowa, 52 Iowa Law Review 31, 53.

Generally, the right to indemnification is not automatic and is not an unqualified promise to pay by the indemnitor. See Chicago & N.W. Ry. Co. v. Kramme, 244 Iowa 944, 947, 59 N.W.2d 204, 206--207 (1953). Nor does § 613A.8 impose on the municipality an absolute obligation to indemnify.

A cause of action against a municipal employee individually, for his negligence, has long been recognized in Iowa. The court in Anderson v. Calamus Community Sch. Dist., 174 N.W.2d 643 (Iowa 1970) rejected a contention by the defendant school bus driver that he was protected by the cloak of his employer school district's governmental immunity. The court held an employee of a municipality who commits a wrongful and tortious act violates a duty to the injured party and is personally liable even though his governmental employer may be exempt from liability under the doctrine of sovereign immunity. Anderson v. Calamus Community Sch. Dist., supra, 174 N.W.2d at 644. The Anderson case involved a school bus accident which occurred 11 days before the effective date of what is now chapter 613A, Code, 1971, abrogating a municipality's governmental immunity from liability.

The rule enunciated in Anderson, supra, was followed in Johnson v. Baker, 254 Iowa 1077, 1084--1089, 120 N.W.2d 502, 506--509 (1963); Moore v. Murphy, 254 Iowa 969, 119 N.W.2d 759, 760--761 (1963); Genkinger v. Jefferson County, 150 Iowa 118, 120, 93 N.W.2d 130, 132 (1950); Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608 (1938); see Annotation 32 A.L.R.2d 1163.

We therefore hold the trial court erred in dismissing plaintiffs' causes of action against Mary Sneller. The notice of claim requirements of § 613A.5, Code, 1971, do not apply to an employee of a municipality when that employee is sued in his individual capacity for his negligent acts.

II. Turning now to plaintiffs' second assigned error, we find the factual allegations of plaintiffs' petition show substantial compliance with the notice requirements of § 613A.5, Code, 1971, and we so hold.

Here the petition in part stated,

'11) That on or prior to May 31, 1968, John Wesselink, an employee of Wesselink Insurance Agency, Inc., on behalf of the plaintiffs herein, prepared a written report of the time, place and circumstances of the injury and resultant loss to plaintiffs herein and the nature and extent of the injuries and damages. That at said time and place the Wesselink Insurance Agency, Inc., was the agent of the defendant school district for the purpose of receiving and...