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IN THE COURT OF APPEALS OF IOWA No. 1-763 / 11-0219 Filed November 23, 2011

ROBERT E. BLANCHARD, JR., Plaintiff-Appellant, vs. COUNTRY PREFERRED INSURANCE COMPANY, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Gary D. McKenrick, Judge.

A plaintiff appeals the district court's ruling granting an insurance carrier's motion for summary judgment, contending that the court erred in determining that the contractual limitations period for filing a claim for underinsured motorist benefits was reasonable and enforceable. REVERSED AND REMANDED.

John O. Moeller, Davenport, and James A. Tappa, Rock Island, Illinois, for appellant. Michael C. Walker and Amanda R. Newman of Hopkins & Huebner, P.C., Davenport, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2 VAITHESWARAN, P.J. Robert Blanchard Jr. was injured in a motorcycle accident. At the time of the accident, Blanchard had automobile insurance coverage, including underinsured motorist coverage, through Country Preferred Insurance Company. Blanchard's policy provided that any suit against Country Preferred for underinsured coverage would "be barred unless commenced within two years after the date of the accident." Blanchard timely sued the woman who collided with him and the owner of the vehicle she was driving, but he did not add Country Preferred as a defendant until well over two years after the accident. Country Preferred filed a motion for summary judgment on the ground that Blanchard's claim against the company was time-barred. The district court granted the motion, reasoning that "[t]he

policy clearly and unambiguously states that any suit against the insurer by the insured to recover benefits under the underinsured provisions of the policy must b[e] commenced within two years of the accident giving rise to the claim." Blanchard appealed. On appeal, Blanchard cites Nicodemus v. Milwaukee Insurance Co., 612 N.W.2d 785 (Iowa 2000), for the proposition that Country Preferred's limitation provision is unreasonable. See Nicodemus, 612 N.W.2d at 787 ("[A] contractual limitations provision is enforceable if it is reasonable."). In Nicodemus, the

insured's policy required her to sue her insurance company for underinsured benefits "within two years after the date of the accident." Id. at 786. Nicodemus argued the provision was unreasonable when read in the context of other policy provisions. Id. at 787. She specifically noted that her insurer was "not obligated

3 to make any payment" until the liability limits of the tortfeasor's insurance policy were "exhausted by payment of judgments or settlements." Id. at 786.

Additionally, no suit could be brought against her insurer until she had "fully complied with all the terms of" her policy. Id. The Iowa Supreme Court stated that the practical effect of these policy provisions is that an insured has no claim for UIM benefits and may not even institute suit against the insurance carrier until she has obtained a judgment against the tortfeasor or reached a settlement with the tortfeasor. Id. at 787

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