                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0429
                             Filed March 12, 2014


PROTECTIVE INSURANCE COMPANY, as
Subrogee of FEDEX GROUND PACKAGE SYSTEM,
     Plaintiff-Appellee,

vs.

DANIEL GRIFFIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Louisa County, John M. Wright,

Judge.




      Daniel Griffin appeals from the grant of summary judgment in favor of

Protective Insurance Company. AFFIRMED.




      Eric D. Tindal of Nidey Erdahl Tindal & Fisher, PLC, Williamsburg, for

appellant.

      Shannon D. Adams and Brooke Trent of Nelson Law Firm, PLLC,

Waterloo, for appellee.




      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
                                             2


DOYLE, J.

       In an action by insurer Protective Insurance Company (Protective) against

Daniel Griffin to recover property damages resulting from a motor vehicle

collision, Griffin appeals from the grant of summary judgment in favor of

Protective. Griffin asserts the district court erred in granting the motion because

(1) there is insufficient evidence to establish he was negligent, and (2) there is

insufficient evidence “that no comparative fault existed.” We affirm.

       On March 5, 2011, Griffin was travelling southbound on county road W66

coming out of Cotter, Iowa. Upon entering state Highway 92, Griffin’s truck was

broadsided by a westbound semi-truck owned by FedEx Ground Package

System (FedEx).1

       Pursuant to a policy of insurance Protective issued to FedEx, Protective

paid out $48,467.02 in claims for damages to the FedEx semi-truck and trailer.

FedEx paid out its deductible portion of the claim in the amount of $500.

Protective, as subrogee of FedEx, filed suit seeking damages of $48,967.02 from

Griffin, claiming he was negligent in failing to yield the right of way to the FedEx

truck upon entering highway 92. Griffin answered, denying he was negligent and

raising the affirmative defenses of comparative fault and “Failure to Avoid Injury

or otherwise Mitigate Damages.”

       Protective’s first motion for summary judgment was resisted by Griffin.

Concluding Protective’s supporting materials were insufficient, the district court

denied the motion. Protective then sent a set of requests for admissions to


       1
         The parties’ district court pleadings and appellate filings erroneously refer to the
semi-truck’s owner as “FedEx Group Package System.”
                                             3


Griffin. When he did not respond to the requests within the requisite thirty days

set forth in Iowa Rule of Civil Procedure 1.510(2), Protective filed a second

motion for summary judgment on October 18, 2012. This motion was supported

by the unanswered requests for admissions directed to Griffin and an

investigating officer’s affidavit.

       A December 7th hearing date was set. On November 26, over five weeks

after the summary judgment motion was filed, Griffin filed a motion to extend the

time for filing a resistance and to continue the hearing. Griffin explained he had

contacted an accident reconstruction expert and needed additional time to raise

funds to retain the expert. Griffin, citing rule 1.981(6), asserted he should be

given the opportunity to present additional affidavits rebutting Protective’s expert.

       Protective resisted, noting Griffin had failed to comply with the fifteen-day

timeframe for filing a resistance under rule 1.981(3). Additionally, it relied upon

rule 1.510(2), which provides that the matter contained in requests for admission

are “admitted unless, within [thirty] days after service of the request . . . the party

to whom the request is directed serves upon the party requesting the admission

a written answer or objection.” Because Griffin failed to answer its requests for

admission within thirty days, it argued its requests were deemed admitted under

that rule and those admissions established there was no genuine issue of

material fact in the matter.

       Ultimately, the hearing on the motion for summary judgment was held as

scheduled.     Griffin filed no written response or resistance to the motion for

summary judgment. Although the hearing was unreported, the court noted in its

later ruling that the motion was resisted.
                                               4


         In granting Protective’s motion for summary judgment, the district court

concluded:

                  In [Protective’s] second attempt at summary judgment, the court
         notes the affidavit by the law enforcement officer contains information he
         gleaned from his personal investigation of the accident. This information,
         if offered at trial, would be relevant and admissible evidence that would
         help the jury in deciding the issue of negligence. . . . Furthermore,
         [Griffin] failed to answer requests for admissions propounded by
         [Protective]. [Rule] 1.510(2) deems requests for admissions admitted
         unless the defendant serves a written answer or objection within thirty
         days after service. In this case, [Griffin] failed to file a written answer or
         objection within thirty days of service. Therefore, the court deems the
         requests for admissions admitted.
                  Based upon the record of undisputed facts, the affidavit of Officer
         Jonah Grier, and the answers to requests for admissions, the court
         concludes [Protective] has provided sufficient evidence to support its
         motion for summary judgment. The court would note that [Griffin] failed to
         abide by [rule] 1.981 by failing to file any of the necessary pleadings in
         response to the motion. [Griffin] cannot rest merely upon his answer to
         the petition in order to overcome the motion for summary judgment.
                  Liability is conclusive upon the foregoing findings. Furthermore,
         request for admission [numbers 6 and 7] set forth the amount of damages
         paid by [Protective] and the deductible paid by [FedEx] for which [Griffin]
         should be liable. It is therefore the court’s conclusion that [Griffin] should
         be liable for damages in the amount of $48,967.02.

         After the court entered judgment consistent with its ruling, Griffin

appealed.

         “We review the district court’s grant of summary judgment for correction of

errors at law.”      See Sallee v. Stewart, 827 N.W.2d 128, 132 (Iowa 2013).

Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits show there is no genuine issue

of material fact and the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 1.981(3); Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 Iowa

2012).     “The burden is on the moving party to demonstrate it is entitled to

judgment as a matter of law,” and we “view the evidence in the light most

favorable to the nonmoving party.” Sallee, 827 N.W.2d at 133. It is well-settled
                                          5


that “questions of negligence or proximate cause are ordinarily for the jury,” and

“only in exceptional cases should they be decided as a matter of law.”

Clinkscales v. Nelson Secs., Inc., 697 N.W.2d 836, 841 (Iowa 2005); see also

Virden v. Betts & Beer Constr. Co., Inc., 656 N.W.2d 805, 807 (Iowa 2003)

(noting summary judgment is usually inappropriate in negligence cases).

       Griffin never did respond to the requests for admissions and does not

challenge the court’s ruling deeming the requests as admitted. Rather, Griffin

claims the admitted requests for admissions and the officer’s affidavit are “a far

distance from proving that [Griffin] was negligent” and that “[v]irtually none of the

requests for admissions go to the elements of negligence.”              Deeming the

requests admitted, we disagree.

       Protective’s request for admission number 3 states: “[Griffin] failed to yield

the right of way upon entering Highway 92 and subsequently struck [Protective’s]

insured.”   Additionally, the affidavit of the investigating officer states: “[Griffin]

failed to yield the right of way of [Protective’s] insured upon entering Highway 92

and subsequently struck [Protective’s] insured.”           The record conclusively

establishes Griffin failed to yield the right of way to the FedEx truck upon entering

Highway 92 from a county road. Failure to yield the right of way is a violation of

the statutory rules of the road. See Iowa Code §§ 321.319 (two vehicles entering

intersection at same time), .321 (entering a through highway), .322 (entering a

stop or yield intersection) (2011). “Absent legal excuse, a violation of [a statutory

rule of the road] constitutes negligence per se or as a matter of law.” Machmer v.

Fuqua, 231 N.W.2d 606, 607 (Iowa 1975); see also Bangs v. Keifer, 174 N.W.2d

372, 374 (Iowa 1970).
                                           6


       Here, Griffin advances no legal excuse. Furthermore, Protective’s request

for admission number 4 states: “As a result of the negligent and careless

operation of the automobile driven by [Griffin], [Protective’s] insured sustained

damages to his vehicle.” Request for admission number 8 states: “[Protective]

and their insured were compelled to make all of said expenditures solely by the

reason of [Griffin’s] negligent operation of said vehicle at said time and place of

the accident.” Based upon these admissions, we, like the district court, find no

genuine issue of material fact that Griffin was negligent.

       Additionally, requests for admissions numbers 4 and 8 establish Griffin’s

negligence proximately caused the damages. Consequently, there is no genuine

issue of material fact that Griffin’s negligence proximately caused the damages.

       Although Griffin does not challenge the amount of damages on appeal,

requests for admissions numbers 6 and 7 establish the amount of damages.

Consequently, there is no genuine issue of material fact concerning the amount

of damages claimed.

       In view of the above, the record establishes there is no genuine issue of

material fact as to negligence, proximate cause, and damages. Therefore, we

find this to be one of those exceptional negligence cases where summary

judgment is appropriate.

       Next, Griffin alleges “virtually none of [Officer Grier’s] statements support

the absence of comparative fault” and the admitted requests for admissions and

the officer’s affidavit are “a far distance from proving . . . that no comparative fault

existed in [this] negligence action.” Griffin’s assertions harken back to Iowa’s

jurisprudence discarded nearly fifty years ago.        Prior to 1965, plaintiffs were
                                            7

required to prove their freedom from contributory negligence. See Peterson v.

Davis, 121 N.W.2d 111, 113 (Iowa 1963) (quoting the 1895 case Gregory v.

Woodworth, 61 N.W. 962, 963 (Iowa 1895): “It is a general a rule, established by

a long line of authority, . . . that the burden is on the plaintiff to show his freedom

from [contributory] negligence.”).     In 1965, our legislature abolished this rule.

1965 Iowa Acts ch. 430, § 1, codified at Iowa Code § 619.17 (1966).2 Protective

had no burden to plead and prove freedom from contributory fault. See Iowa

Code § 619.17; see also Johnson v. Junkmann, 395 N.W.2d 862, 868 (Iowa

1986). Griffin’s argument that Protective’s evidence fails to establish an absence

of comparative fault is therefore meritless.

       Additionally, Griffin’s mere assertion of the affirmative defense of

comparative fault in his answer provides him no assistance. In responding to a

motion for summary judgment, a party “may not rest upon the mere allegations or

denials in the pleadings, but the response, by affidavits or as otherwise

provided . . . must set forth specific facts showing that there is no genuine issue

for trial.” Iowa R. Civ. P. 1.981(5); see also Schulte v. Mauer, 219 N.W.2d 496,

500 (Iowa 1974) (considering Iowa R. Civ. P. 237, now renumbered 1.981).

Griffin advances no facts. “Our rules of summary judgment do not permit the

nonmovant [Griffin] to rest on conclusory allegations in the pleadings in the face

       2
         Iowa Code section 619.17 stated at that time:
               In all actions brought in the courts of this state to recover
       damages of a defendant in which contributory negligence of the plaintiff
       . . . was heretofore a complete defense or bar to recovery, the plaintiff
       shall not hereafter, have the burden of pleading and proving his freedom
       from contributory negligence, and if the defendant relies upon the
       negligence of the plaintiff as a complete defense or bar to plaintiff’s
       recovery, the defendant shall have the burden of pleading and proving
       negligence of the plaintiff, if any, and that it was a proximate cause of the
       injury or damage.
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of a properly supported motion for summary judgment.” Castro v. State, 795

N.W.2d 789, 795 (Iowa 2011).

      We find no error in the district court’s grant of summary judgment in favor

of Protective. Accordingly, we affirm.

      AFFIRMED.
