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HALE v. CLASSIFIED INS. CO.5/30/1995
Marsha Jo Hale was injured in an automobile accident in 1985 involving a truck owned by Lange Tire Service (Lange Tire) and driven by Roderick Harding during his course of employment with Lange Tire. At the time of the accident, Classified Insurance Company (Classified) provided Hale with underinsured and uninsured motorist coverage. Lange Tire's insurance carrier denied coverage because the agent failed to forward a renewal premium. The agent's errors and omissions carrier, Employers Reinsurance Corporation (Employers), agreed to defend and indemnify Lange Tire and Harding up to its policy limits.
In November 1990, Hale settled with Employers and released and discharged Lange Tire , Harding and Employers from any and all past, present or future claims, demands or obligations resulting from the accident with Hale. Hale did not inform Classified of the lawsuit or the settlement until she later made a demand for underinsured motorist coverage. Classified refused the claim and Hale filed a petition seeking the policy limits of her underinsured motorist coverage.
Classified filed a motion for summary judgment, claiming Hale breached the consent-to-settlement clause of the underinsured/uninsured provisions in the policy. The district court granted the motion. Hale appeals.
I.
The scope of review is for errors of law. Iowa R. App. P. 4.
Summary judgment is appropriate only if there exists no genuine issue of material [535 NW2d Page 166]
fact. Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). The moving party has the burden to show the nonexistence of a material fact. Id. The evidence must be viewed in the light most favorable to the nonmoving party. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). This procedure is functionally akin to a directed verdict, and every legitimate inference that reasonably can be deduced from the evidence should be afforded the nonmoving party. Id. A fact issue is generated if reasonable minds can differ on how the issue should be resolved. Id. If the conflict in the record consists only of legal consequences flowing from undisputed facts, entry of summary judgment is proper. Milne, 424 N.W.2d at 423.
II.
There are a number of undisputed facts in this case. Hale is an insured under a policy issued by Classified. This policy included both uninsured and underinsured coverage. The limits of both types of coverage were $20,000 per person with maximum coverage of $40,000. The uninsured and underinsured motorist section of the policy includes the following exclusion:
EXCLUSIONS
This coverage does not apply to bodily injury sustained by a person:
(2) If that person or the legal representative of the person makes a settlement without our written consent.
The policy also includes the following provision regarding Classified's subrogation and reimbursement rights.
OUR RECOVERY RIGHTS
In the event of any payment under this policy, we are entitled to all the rights of recovery of the person to whom payment was made against another. That person must sign and deliver to us any legal papers relating to that recovery, do whatever else is necessary to help us exercise those rights and do nothing after loss to prejudice our rights.
When a person has been paid damages by us under this policy and also recovers from another, the amount recovered from the other shall be held by that person in trust for us and reimbursed to us to the extent of our payment.
The parties do not dispute these provisions are included in the policy issued by Classified.
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