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ALVAREZ v. MEADOW LANE MALL3/26/1997
This appeal challenges a trial court order dismissing a tort suit. It was dismissed as to one defendant because of the failure to provide a timely service of original notice. It was dismissed as to other defendants because it was not brought within the statute of limitations. We affirm.
Plaintiff Alicia Alvarez claims to have been injured April 10, 1993, when she fell in a retail parking lot in Marshalltown, Iowa. The property was owned by Spatz Partnership and Meadow Lane Mall Limited Partnership, both of which were owned by individual defendants William and David Spatz.
In May 1993 Alvarez informed Spatz Partnership of the incident and was referred to its insurer, Aetna Insurance Company. In December 1993 Aetna paid Alvarez and her family approximately $5000 under Spatz Partnership's medical payment coverage, but denied any claim for liability damages.
Brian L. Sylvester was Alvarez's original attorney. In February 1995 he wrote Aetna, enclosing a copy of the lawsuit he intended to file, and inquired whether Aetna would accept service of original notice. On April 6 Sylvester filed a petition against Spatz Partnership, but did not arrange for service of original notice as required by Iowa rule of civil procedure 49(a). Sylvester later claimed the insurer's claims representative, Kathy Flynn, indicated during a telephone conversation on April 19 that she thought the [560 NW2d Page 590]
company would accept service on behalf of the defendants. Flynn denied making such a representation.
The district court found that the following occurred during the April 19 phone conversation:
A preponderance of the evidence shows that Mr. Sylvester asked whether Ms. Flynn and Aetna would accept service of the original notice on behalf of their insureds. Ms. Flynn, at the most, replied that she would have to check with her superiors. She did not state that Aetna would definitely accept service.
Later the same day, following the phone conversation, Sylvester wrote to Flynn at Aetna stating:
Thank you for the opportunity to speak with you this morning. This letter is to confirm several aspects of our conversation regarding the above matter.
First, enclosed is an Original Notice, Petition at Law, and Acceptance of Service form for your signature. As I understand it you either already have, by virtue of your company's prior directive, or will have, by virtue of contact with your insured, authorization to execute the Acceptance of Service to avoid the need for personal service on your insured which would be inconvenient for everyone involved. If this is incorrect, you need to notify me immediately so that I can take other steps to secure service on Spatz Partners.
Neither Flynn nor anyone else at Aetna ever responded to this letter.
Sylvester testified he wrote to Flynn again on July 11 asking her to respond to his request for a settlement offer. This letter stated:
If you are not [willing to settle this case], I must insist that according to the terms of our prior agreement that you file an answer so we can proceed with this lawsuit.
Flynn testified she did not receive the July 11 letter from Sylvester and indeed had never heard from him again.
In early August, when Sylvester's license to practice law in Iowa was suspended, Alvarez retained her present counsel. On August 29 Alvarez sought and was granted permission to amend her petition to add Meadow Lane Mall Limited Partnership, William Spatz, and David Spatz as defendants. On September 5 the amended petition was filed. On August 31 Meadow Lane Mall Limited Partnership had accepted serv
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