                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1240
                            Filed December 23, 2015


DORETTA DILLEY and JAN C. DILLEY,
    Plaintiffs-Appellants,

vs.

AUTO-OWNERS INSURANCE GROUP,
AUTO-OWNERS INSURANCE COMPANY,
and OWNERS INSURANCE COMPANY,
     Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Marshall County, Michael J. Moon

(Owners Insurance Company summary judgment) and Steven J. Oeth (Auto-

Owners Insurance Company summary judgment), Judges.



      Doretta and Jan Dilley appeal the district court’s grant of summary

judgment in favor of Auto-Owners Insurance Company and Owners Insurance

Company. AFFIRMED.




      Barry S. Kaplan of Kaplan & Frese, L.L.P., Marshalltown, for appellants.

      Bradley M. Beaman, Matthew J. Haindfield, and Catherine M. Lucas of

Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.



      Considered by Tabor, P.J., McDonald, J, and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.

       Doretta and Jan Dilley appeal the district court’s orders granting summary

judgment to Owners Insurance Company (Owners) and Auto-Owners Insurance

Company (Auto-Owners) on their claim for underinsured motorist coverage.

They claim the district court erred in granting summary judgment because:

(1) the amended petition relates back to the original petition; (2) it is contrary to

policy concerns underlying the pleading rules; and (3) there is ambiguity

regarding who issued the insurance policy. We find the district court properly

granted summary judgment for both Owners and Auto-Owners.

       I. Background Facts and Proceedings.

       On November 8, 2010, Doretta Dilley was involved in a motor vehicle

collision. She suffered multiple injuries and some permanent loss of function as

the result of the collision.   Dilley entered into negotiations with the driver’s

insurance company.

       On December 5, 2011, Dilley’s attorney sent a letter to Marty James, a

field claim representative for the Auto-Owners Insurance Group, notifying him

there had been a settlement offer from the other driver and stating in part the

letter “should serve as notice to Auto-Owners that Ms. Dilley may be making a

claim against her underinsured policy in the future.”      On December 8, 2011,

James replied he would need to complete a thorough evaluation of the claim

before approving the settlement. James sent a letter authorizing the settlement

on January 10, 2012.
                                             3



       One day before the contractual limitation period in Dilley’s underinsured

motorist coverage automobile policy (UIM) expired, Dilley filed suit against Auto-

Owners Insurance Group and Auto-Owners Insurance Company claiming UIM

benefits.1   Auto-Owners was served the original notice and petition through

Dilley’s insurance agent, Dan Meade, on November 13, 2012.                   Auto-Owners

Insurance Group and Auto-Owners filed their answer, affirmative defenses, and

jury demand on May 13, 2013, stating Auto-Owners Insurance Group is not a

legal entity and Auto-Owners did not issue Dilley’s policy. On June 27, 2013,

Dilley requested permission to substitute Owners as a party-defendant.                 The

court granted the request the next day.           On July 8, 2013, Dilley requested

permission to clarify she sought to add Owners and not replace Auto-Owners

with Owners. This request was granted July 24, 2013. Dilley then filed a motion

for extension for time to serve original notice. The motion was granted, and

service on Owners was completed October 22, 2013.

       Owners filed its answer asserting Dilley’s suit was barred by the

contractual limitation period in her policy.         Owners then filed a motion for

summary judgment. The court found “insufficient evidence the relation-back test

[was] satisfied” and granted Owners’ motion, dismissing Owners from the action.

       Auto-Owners and Auto-Owners Insurance Group filed their own motion for

summary judgment. The court found there were no genuine issues of material

fact, neither Auto-Owners nor Auto-Owners Insurance Group issued Dilley’s


1
  Dilley’s policy provided any person seeking UIM coverage must “conform with any
applicable statute of limitations applying to bodily injury claims in the state in which the
accident occurred.” The statute of limitations applicable to bodily injury is two years.
Iowa Code § 614.1(2) (2013).
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policy, and Auto-Owners Insurance Group was not a legal entity. The motion for

summary judgment filed by Auto-Owners and Auto-Owners Insurance Group was

granted. Dilley appeals the summary judgments for Auto-Owners and Owners.

       II. Standard of Review.

       We review a summary judgment ruling by the district court for errors at

law. Iowa R. App. P. 6.907; Osmic v. Nationwide Agribusiness Ins. Co., 841

N.W.2d 853, 858 (Iowa 2014). Summary judgment is available to a party when

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Buechel v. Five Star Quality Care, Inc., 745 N.W.2d

732, 735 (Iowa 2008).      “An issue of fact is ‘material’ only when the dispute

involves facts which may affect the outcome of the suit, given the applicable

governing law.”    Wallace v. Des Moines Indep. Sch. Dist. Bd. of Dirs., 754

N.W.2d 854, 857 (Iowa 2008). “The requirement of a ‘genuine’ issue of fact

means the evidence is such that a reasonable jury could return a verdict for the

non-moving party.” Id. The record should be viewed in the light most favorable

to the non-moving party. Id.

       III. Analysis.

       A. Relation Back.

       Dilley first claims the amended complaint adding Owners relates back to

the original filing under the misnomer principle. If the addition of Owners does

not relate back, Dilley’s claim is barred by the contractual limitation in her policy.

In order to relate back the claim to a new defendant, Dilley must satisfy a four-
                                         5



prong test.   See Estate of Kuhns v. Marco, 620 N.W.2d 488, 491–92 (Iowa

2000). These four prongs are:

       First, the same relation back test for amendments that add claims is
       considered. Second, a party against whom a claim is asserted
       must receive such notice of the institution of the action that the
       party will not be prejudiced in maintaining a defense on the merits.
       Third, the party against whom the claim is asserted must know or
       should have known that, but for a mistake concerning the identity of
       the proper party, the action would have been brought against the
       party. Finally, the second and third factors must occur within the
       period provided by law for commencing the action against the party.

Id. (citing Porter v. Good Eavespouting, 505 N.W.2d 178, 181 (Iowa 1993)).

       The district court found Dilley had not met her burden to show the relation-

back doctrine applied as she presented no evidence to show Owners received

any notice of the lawsuit within the prescribed limitations period. See id. at 492.

Dilley may not rely on notice served on her insurance agent after the

commencement of the suit. The suit was initiated one day before the statute of

limitations and contractual limitation periods had run, and Dilley’s agent was not

served until five days after the statute of limitations period expired. Instead,

Dilley claims the letter, sent December 5, 2011, stating it “should serve as notice

to Auto-Owners that Ms. Dilley may be making a claim against her uninsured

policy in the future” fulfills the requirement for notice to be served on Owners.

Dilley argues the agent could also be served on Owners’ behalf and therefore

service was accomplished.

       The relation-back doctrine requires the party to be added receive “notice

of the institution of the action.” Iowa R. Civ. P. 1.402(5). “[T]he notice to the

party to be brought into the action must be notice of the institution of the action,
                                         6



not simply notice of the possibility of a lawsuit.” Butler v. Woodbury Cty., 547

N.W.2d 17, 19 (Iowa Ct. App. 1996). Notice of intention to file an action is not

sufficient. Id. at 19-20. No notice of the institution of the action was received by

Auto-Owners until November 13, 2012, and no notice was received by Owners

until October 22, 2013. We hold the court did not err in granting Owners’ motion

for summary judgment.

       B. Policy Concerns.

       Dilley claims the district court erred in granting summary judgment

because doing so violated the spirit of the pleading rules and is contrary to public

policy. Our supreme court has held “when the relation back rule is applied to

amendments that add a defendant, we strictly adhere to the clear language of the

rule and have refused to extend the notice period beyond the time for

commencing the action.” Estate of Kuhns, 620 N.W.2d at 492. We are not free

to disregard controlling authority from our supreme court. See State v. Hastings,

466 N.W.2d 697, 700 (Iowa Ct. App. 1990). We therefore conclude the district

court did not err in granting summary judgment.

       C. Ambiguity.

       Dilley claims the district court erred in granting summary judgment

because there was ambiguity regarding which company issued the insurance

policy. In support of this claim Dilley relies heavily on a Kansas Supreme Court

case holding summary judgment is inappropriate when there is ambiguity as to

which company issued the insurance policy. Bussman v. Safeco Ins. Co., 317
                                          7



P.3d 70, 80 (Kan. 2014). No similar holding exists under Iowa law. However

Iowa case law does hold:

              The cardinal principle in the construction and interpretation
       of insurance policies is that the intent of the parties at the time the
       policy was sold must control. Except in cases of ambiguity, the
       intent of the parties is determined by the language of the policy. An
       ambiguity exists if, after the application of pertinent rules of
       interpretation to the policy, a genuine uncertainty results as to
       which one of two or more meanings is the proper one. Because of
       the adhesive nature of insurance policies, their provisions are
       construed in the light most favorable to the insured.

LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998) (internal

citations and quotation marks omitted).

       Bussman is distinguishable from the instant case. Bussman involved an

insurance policy which contained references to multiple insurance companies

throughout the insurance policy itself. Bussman, 317 P.3d at 79. The insurance

policy at issue in this case identifies the parties as Jan and Doretta Dilley and the

insurer as Owners Insurance Company. Nowhere in the policy is Auto-Owners

mentioned.

       The trial court properly chose not to consider the extrinsic evidence

offered by Dilley because it violated the parol evidence rule. See Pitts v. Farm

Bureau Life. Ins. Co., 818 N.W.2d 91, 107 (Iowa 2012) (“The parol evidence

rules forbids use of extrinsic evidence to vary, add to, or subtract from a written

agreement.”). An issue is genuine when a reasonable juror could return a verdict

in favor of the non-moving party. Wallace, 754 N.W.2d at 857. We conclude no

reasonable juror could return a verdict in favor of Dilley. Because there is no
                                         8



genuine issue of material fact we find the court did not err in granting summary

judgment for Auto-Owners.

      IV. Conclusion.

      We hold Dilley did not properly relate the amended filing back to the

original petition, we are not free to overrule controlling precedent to consider

policy concerns, and there was no genuine ambiguity as to which company

issued the policy to Dilley. Therefore, we affirm the district court and find it did

not err in granting summary judgment for Owners and Auto-Owners.

      AFFIRMED.
