Opinion
No. 1-734 / 99-1940.
Filed July 3, 2002.
Appeal from the Iowa District Court for Polk County, JACK D. LEVIN, Judge.
Lori and Timothy Hommer appeal from the district court ruling dismissing their personal injury action as barred by the statute of limitations. AFFIRMED.
Greg S. Noble of Murray, Jankins Noble, Des Moines, for appellants.
Janice M. Thomas of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker, Ordway, L.L.P., Des Moines, for appellees.
Heard by SACKETT, C.J. and HUITINK and EISENHAUER, JJ.
Timothy and Lori Hommer appeal from a district court ruling dismissing their negligence claims against Lloyd and Marguerite Marek. We affirm.
I. Background Facts and Proceedings .
The automobile accident resulting in this litigation occurred July 20, 1997. The Hommers filed this lawsuit seeking personal injury damages on July 16, 1999, naming Marguerite and Lloyd Marek as individual defendants. On August 31, 1999, the Hommers filed an application to substitute the respective personal representatives of the Mareks' estates, because both Lloyd and Marguerite died shortly after the accident in 1998. In their contemporaneous motion to dismiss, the Mareks' executors argued that the Hommers' claims were time barred by Iowa Code section 614.1(2), the two-year statute of limitations on personal injury claims. The Hommers resisted, citing the provisions of Iowa Code section 633.410 granting equitable and other relief from the time limits for filing claims against decedents' estates. The district court concluded that section 614.1(2) rather than section 633.410 was the controlling standard by which the timeliness of the Hommers' action against the Mareks should be determined. Because more than two years elapsed from the date of the accident until the Hommers' claims were filed against the Mareks' estates, the district court granted the Mareks' executors' motion to dismiss, resulting in this appeal.
II. Standard of Rreview .
Our standard of review is for correction of errors at law. Iowa R. App. P. 6.4.
III. The Merits .
The Hommers argue that, when measured against the terms of Iowa Code section 633.410, the district court erred by concluding their claims against the Mareks' estates were time barred. This section provides as follows:
All claims against a decedent's estate, . . . absolute or contingent, . . . are forever barred against the estate, the personal representative, and the distributees of the estate, unless filed with the clerk within the later to occur of four months after the date of the second publication of the notice to creditors or, as to each claimant whose identity is reasonably ascertainable, one month after service of notice by ordinary mail to the claimant's last known address. . . . This section does not bar claims for which there is insurance coverage, to the extent of the coverage . . . or claimants entitled to equitable relief due to peculiar circumstances.
Iowa Code § 633.410 (1999). The Hommers contend that because they were reasonably ascertainable creditors and had not been provided notice of the opening of the estate, this section should be read to toll the statute of limitations on their claims against the Mareks' estates. See In re Estate of Renwanz, 561 N.W.2d 43, 44 (Iowa 1997) (due process requires reasonably ascertainable creditors of estate be given notice by mail). They further contend that their claims should not be barred because the Mareks had liability insurance covering their injuries and that they are entitled to equitable relief due to genuine questions about whether the Mareks' deaths had been concealed. See In re Estate of Herron, 561 N.W.2d 30, 32 (Iowa 1997) (hearing on possible insurance coverage mandatory prior to dismissal of case pursuant to section 633.410); Baldwin v. City of Waterloo, 372 N.W.2d 486, 490 (Iowa 1985) ("peculiar circumstances" under section 633.410 include fraud or concealment). We disagree.
We have previously held that section 633.410's limitation on claims against an estate does not preclude application of the two-year statute of limitations on personal injury actions. Healy v. Carr, 449 N.W.2d 883, 885 (Iowa Ct.App. 1989). Thus, even if the Hommers had filed their action within the time limits provided for in section 633.410, their claims would still be barred if not filed within two years of the date of injury. See Thompson v. Estate of Herron, 612 N.W.2d 798, 800 (Iowa 2000). Accordingly, the district court correctly determined that Hommers' claims were time barred, and we affirm on this issue.
We decline to address the Hommers' final assertion that their amended petition is a continuation of their initial action pursuant to Iowa Code section 614.10. We find no indication in the record that this argument was asserted before the district court. It is a basic rule of appellate practice that questions not presented to nor passed on by the district court cannot be raised or reviewed on appeal. Shill v. Careage Corp., 353 N.W.2d 416, 420 (Iowa 1984).
The district court decision is affirmed in its entirety.
AFFIRMED.