Dennis Lee Anderson v. Depositors Insurance Company

IN THE COURT OF APPEALS OF IOWA
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No. 25-0806
Filed April 29, 2026
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Dennis Lee Anderson,
Plaintiff–Appellant,
v.
Depositors Insurance Company,
Defendant–Appellee.
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Appeal from the Iowa District Court for Jasper County,
The Honorable Terry Rickers, Judge.
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AFFIRMED
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J.M. Boomershine (argued), of Sullivan & Ward, P.C., West Des Moines,
attorney for appellant.

Courtney T. Wilson (argued) of Law Offices of John M. Guthrie, Des
Moines, attorney for appellee.
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Heard at oral argument
by Greer, P.J., and Buller and Langholz, JJ.
Opinion by Greer, P.J.

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GREER, Presiding Judge.

Dennis Anderson appeals the district court order dismissing his
second lawsuit against Depositors Insurance Company arising out of the
same claim. Anderson argues that his second lawsuit is timely under Iowa’s
savings statute, Iowa Code section 614.10 (2025), because he filed it within
six months of dismissing, without prejudice, a prior lawsuit against
Depositors. Upon our review, we conclude that Anderson negligently
prosecuted the first lawsuit and the savings statute does not apply. Because
the savings statute does not apply, and because Anderson’s claims are time-
barred by the contractual limitations period in the insurance policy, we affirm
the dismissal of his second lawsuit.

I. Background Facts and Proceedings.

Anderson alleges he was injured in a November 2021 motor-vehicle
accident with an underinsured motorist. On July 5, 2023, Anderson filed a
lawsuit bringing an underinsured-motorist claim against his insurance
company, Depositors. Anderson set out to serve Depositors with original
notice of the lawsuit through the Iowa Insurance Division (IID). On July 14,
Anderson claims he mailed the petition, original notice, and required fee to
the IID requesting service of the suit papers on Depositors. As Anderson
later learned, the IID failed to serve Depositors, but the IID also never
deposited the check that was sent to pay the fee.

The applicable insurance policy provided that “any suit against
[Depositors] under this Underinsured Motorists Coverage will be barred
unless commenced within two years after the date of the accident.” The two-

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year contractual time limit to file suit on Anderson’s claim expired in
November 2023.1

In July 2024, Depositors moved to dismiss the lawsuit because it was
never served with the suit documents from the IID. On August 12, before
filing a resistance and before the hearing on Depositor’s motion to dismiss,
Anderson voluntarily dismissed the lawsuit without prejudice.

On February 11, 2025, within six months of the voluntary dismissal,
Anderson filed a new lawsuit against Depositors bringing the same claim.
This time, he successfully served Depositors, as shown by an acceptance of
service filed by the Commissioner of Insurance on February 19.

Depositors again moved to dismiss, now arguing the lawsuit was
barred by the two-year contractual time limit to file suit in the insurance
policy. Anderson resisted, arguing Iowa’s savings statute, Iowa Code
section 614.10, permitted him to refile the lawsuit even if it was outside the
contractual time limit.

The district court granted the defendant’s motion, concluding that
Anderson negligently prosecuted his original case. According to the district
court, Anderson was responsible for ensuring that service was accomplished,

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It was not raised below, but we note there is some authority that a previous
savings statute was not applicable to extend a statute of limitations established by contract
between the parties. See Ryan v. Phx. Ins. Co. of Hartford, 215 N.W. 749, 751 (Iowa 1927)
(“It is the rule in this state that the parties may by contract fix the period within which an
action may be commenced for any cause growing out of such contract, and that in such
case [the 1924 savings statute section], which under certain circumstances makes the
commencement of a new action within 6 months after a prior dismissal a continuation of
the original action, is not applicable.”).

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and his failure to verify service was negligent. The court concluded the
savings statute was therefore inapplicable and dismissed the second lawsuit
as time-barred. Anderson appeals.

II. Standard of Review.

“We review a district court’s ruling on a motion to dismiss for the
correction of errors at law.” Benskin, Inc. v. West Bank, 952 N.W.2d 292, 298
(Iowa 2020) (citation omitted).

III. Analysis.

There is no dispute that Anderson’s second lawsuit was filed beyond
the two-year deadline in the insurance policy. The only question on appeal is
whether Iowa’s savings statute applies to save Anderson’s claim from the
time-bar. Anderson argues that the savings statute applies because he was
not negligent in prosecuting the first lawsuit as the failure of service in the
first action was solely attributable to the IID. Depositors argues that
Anderson’s failure “to seek continuance or oppose the motion to dismiss in
the original action” was negligent and his second lawsuit is therefore barred.
We conclude that Anderson negligently prosecuted his first lawsuit, the
savings statute does not apply, and his second lawsuit is therefore time-
barred.

Iowa’s savings statute, Iowa Code section 614.10 provides, “If, after
the commencement of an action, the plaintiff, for any cause except negligence
in its prosecution, fails therein, and a new one is brought within six months
thereafter, the second shall be held a continuation of the first.” “The
purpose of a savings statute is to prevent minor or technical mistakes from
precluding a plaintiff from obtaining his day in court and having his claim
decided on the merits.” Furnald v. Hughes, 804 N.W.2d 273, 276 (Iowa 2011).

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The burden is on Anderson to show that the savings statute applies. Id. at
275.

To invoke the savings statute: (1) the second lawsuit must be brought
within six months of the dismissal of the first lawsuit; (2) the parties must be
the same as in the original suit; (3) the cause of action must be the same as in
the original suit; and (4) the failure of the original suit must not be caused by
the plaintiff’s negligence. See Sautter v. Interstate Power Co., 563 N.W.2d 609,
611 (Iowa 1997) (“Bringing and pressing the federal suit in the face of facts
that would deprive that court of diversity jurisdiction” was the failure of the
first action caused by the Sautters’s negligence, thus dismissal was required).
The parties do not contest the first three requirements. The dispute is
whether Anderson was negligent in his prosecution of his first lawsuit.
“[T]he word ‘prosecution’ includes ‘every step in [an] action, from its
commencement to its final determination.’” Id. (citation omitted).

Our case law “stands for the proposition that for a voluntary dismissal
to be within the scope of the term ‘fails’ under the savings statute, there must
be compulsion to the extent that a plaintiff’s entire underlying claim has
been, for all practical purposes, defeated.” Furnald, 804 N.W.2d at 282. “If
the claim can still be pursued in the underlying action, it has not ‘failed’ and
it is ‘negligence’ in the prosecution of the case not to press the matter to
conclusion.” Id. Additionally, “[n]egligence in prosecution of an action is
surely inherent when the plaintiff is lacking in diligence and so suffers a
dismissal.” Sautter, 563 N.W.2d at 611 (alteration in original) (citation
omitted). Anderson must show “strict” proof that he was not negligent in
the prosecution of the first action. Furnald, 804 N.W.2d at 279.

After Anderson filed the first lawsuit, he had ninety days to serve
Depositors. Iowa R. Civ. P. 1.302(5). Anderson elected to serve Depositors

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through the IID. Under Iowa law, all insurance companies that sell insurance
policies within the state must “consent to having the commissioner [of the
IID] serve as agent for the individual or entity for the purpose of receiving
service of process.” Iowa Admin. Code r. 191–1.7(505) (2025); see also Iowa
Code § 505.30. The IID must accept service of process for the named
insurance company. Iowa Admin. Code r. 191–1.7(2)(a). After receiving a
valid request for service and payment of the service fee, the IID must forward
the documents onto the named insurance company and must e-file a notice
of acceptance in Iowa’s electronic filing system. Iowa Admin. Code
r. 191–1.7(2)(b)–(c).

We do not have the record from the first lawsuit before us. However,
it does not appear that the IID ever filed the notice of acceptance signifying
that it had received the documents. Additionally, as the district court noted,
“[t]he check for the filing fee was never endorsed or deposited” by the IID.
The district court concluded,
there was apparently no effort to monitor the [IID’s] efforts, or lack
thereof, to effectuate service upon Depositors until more than a year had
passed from the filing of the original lawsuit. A review of the court file
would have revealed that no proof of service upon Depositors had been
filed with the court. Presumably, [Anderson’s] counsel’s staff would have
noticed that the filing fee check sent to the [IID] never cleared the firm’s
bank account for over a year. At least two “red flags” were missed while
the original lawsuit moved forward.

While the failure to serve Depositors was attributable to the IID,
Anderson offers no explanation for his failure to confirm that service was
effectuated for over one year. See Mokhtarian v. GTE Midwest Inc., 578
N.W.2d 666, 669 (Iowa 1998) (“Once a plaintiff files a petition, we believe it
only appropriate that the plaintiff should bear the burden of ensuring that
service of the original notice and petition on defendant is both proper and

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timely.”). Likewise, the defendant’s “pre-answer” motion to dismiss
assumes that the insurance defendant never filed any pleading in the year
before the motion to dismiss was filed, which should have alerted Anderson
to a potential problem with service.

Still, rather than voluntarily dismissing the first lawsuit, Anderson
could have filed a motion to extend the service deadline or resisted the
motion to dismiss. While the district court concluded that he likely would
have been unsuccessful given the amount of time that had passed without
service, we cannot say for certain that would have been the result as
Anderson did not attempt to pursue either of those options. But see Palmer
v. Hofman, 745 N.W.2d 745, 748 (Iowa Ct. App. 2008) (finding no good cause
for 184-day delay in service beyond statutory limit where attorney’s office
made “[n]o effort to complete service . . . after delivery of the documents to
the Mills County Sheriff.”). Because we cannot know what would have
happened had Anderson sought a service extension or resisted the motion,
we cannot conclude that dismissal of the first lawsuit was “compelled” or
that the first lawsuit “failed.” Furnald, 804 N.W.2d at 282–83.

Like the district court, we are “sympathetic to the fact that the process
server in this case clearly failed in its duty.” We conclude, however, that
Anderson was negligent in failing to ensure service had been effectuated.
There is no explanation for Anderson’s failure to confirm that Depositors was
served within the ninety-day service window, and further no explanation for
how the lack of service went unnoticed for over one year. Through the
exercise of reasonable diligence, Anderson would have realized Depositors
had not been served and either rectified the issue or sought an extension of
time to serve under Iowa Rule of Civil Procedure 1.302(5). Plus, based on
Anderson’s failure to pursue other options within the first lawsuit before a

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voluntary dismissal, Anderson cannot establish compulsion to the extent that
the claim, for all practical purposes, was defeated. Id. at 282. Because the
first lawsuit failed due to negligence in Anderson’s prosecution of the suit,
the savings statute does not apply and his claim is therefore untimely.

IV. Conclusion.

We conclude the failure of Anderson’s first lawsuit against Depositors
resulted from his negligence and therefore Iowa’s savings statute does not
apply. Because the savings statute does not apply, and because Anderson’s
second lawsuit was filed outside the two-year contractual time-bar in the
policy, the district court properly dismissed the second lawsuit.

AFFIRMED.

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