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FRUNZAR v. ALLIED PROPERTY AND CAS. INS.5/22/1996
[548 NW2d Page 882]
The overall issue in the present case is whether the district court properly awarded plaintiff Elizabeth Frunzar uninsured motorist coverage under an insurance policy issued to her father for injuries she sustained in an automobile accident. We affirm in part, reverse in part, and remand with instructions.
I. Background facts and proceedings. On March 26, 1993, plaintiff Frunzar was a passenger in an automobile driven by a friend named Bobby Kilgore. At approximately 3:00 a.m., Frunzar and Kilgore were involved in an automobile accident at an intersection on a Des Moines street in which Kilgore's vehicle was struck on the passenger side by another vehicle and propelled into a light pole. Frunzar, who was thrown thirty feet from Kilgore's vehicle upon impact, suffered severe facial and other bodily injuries in the accident and was hospitalized for five days following the accident.
Frunzar, age twenty-nine at the time of the accident, is the biological daughter of Alan and Diana Elder of Urbandale. At the time of the accident, Alan (Frunzar's father) maintained an automobile insurance policy with defendant Allied Property and Casualty Insurance Company (Allied). The insurance policy contained uninsured motorist (UM) coverage as required by Iowa Code section [548 NW2d Page 883]
516A.1 (1993). The limit of liability for UM coverage in Alan's policy with Allied was $300,000 per accident.
After the accident, Frunzar sought UM coverage from Allied as an insured under her father Alan's insurance policy. In a letter to Frunzar, Allied denied her claim for UM coverage under the policy because, in Allied's opinion, Frunzar was not an "insured" or "family member" as defined in the policy. In its letter denying coverage, Allied expressly reserved "all other rights, defenses or contentions" which were available to it under the policy and stated it did not "waive any rights or defenses which it . . . or which may become known to it in the future."
In November 1993, after Allied denied her claim for UM coverage under her father Alan's policy, Frunzar filed a petition in district court seeking contract damages against Allied. In her petition, plaintiff alleged neither the driver of the automobile in which she was riding nor the driver of the vehicle which struck the vehicle in which she was riding had bodily injury liability coverage at the time of the accident. Although Allied denied this averment in its answer for lack of sufficient information to respond, it later stated in its answers to plaintiff's request for admissions that discovery was ongoing concerning this issue.
The case proceeded to a bench trial. The district court believed the fighting issue at trial was whether or not Frunzar was a resident of her father Alan's household at the time of the accident to qualify for coverage under the UM coverage section of his automobile insurance policy.
At the close of plaintiff's case-in-chief and at the close of all of the evidence, Allied moved for a directed verdict. See Iowa R. Civ. P. 216. In its motion, Allied contended:
laintiff must prove . . . that either the owner or the operator of the vehicle at fault [for the accident] was uninsured. There has been absolutely no competent evidence in this trial at all, even if the court could make findings . . . of insurance or lack thereof.
That is a matter of proof that the plaintiff has. It's a matter that the plaintiff certainly was aware of when . . . filed petition. It was certainly something that plaintiff was aware of in the request for admissions. It's not a [surprise] in this case that those are matters that need
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