Baldwin v. City of Waterloo
372 N.W.2d 486
Iowa
1985
Check Treatment

*1 Debra K. Debra K. BALDWIN f/k/a

Henry, Appellant, WATERLOO, R. John CITY OF

Rooff, Jr., Raymond

White, Appellees. 84-1470.

No.

Supreme Court of Iowa. *2 Gottschalk,

Paul T. Shinkle of Shinkle & Falls, Long, Cedar appellant. for Dutton, Waterloo, David appellee J. City of Waterloo. Waterloo, McCoy,

John T. appellee Rooff, R. John Jr. White, Waterloo,

Frederick G. for appel- Raymond lee White. Thompson, Reinbeck, W.

Robert and Walsh, Clark, Butler, James E. Jr. of McGivern, Waterloo, Walsh & for amicus curiae Estate of James L. Plaehn. LARSON, Justice. interlocutory appeals present

These (1) three cross-petition issues: whether a against required by this estate is a “claim” Iowa Code section 633.410to be filed with- and, so, “peculiar in six months whether circumstances” existed so as to excuse a (2) filing; late whether Iowa Code 668.4, limiting joint liability in circumstances, case; applied in this certain (3) alleged and tortfeasors, nonparties in unidentified action, assessing could be considered respective parties. percentage of fault cross-petition We conclude that was “pecu- but “claim” under section filing. excused the late liar circumstances” also conclude that Iowa Code section We applies, 668.4 but the of uniden- parties may not in as- tified be considered sessing liability under it. May motorcycle operated

On Plaehn, by plaintiff L. on which the James passenger, Baldwin was a collided with a pole, thirty-foot pole, utility “similar to” a Waterloo, lying crossways on a street accident, according prior Iowa. Just to the police reports, pole lying “parking area” between the sidewalk curb, adjacent property owned by defendant Rooff and negligent), leased defend- cent inapplicable ant White. present case. accident, Plaehn, (1)

After the Baldwin and district court ruled: That leave of driver, petition alleging granted filed a court would be third-party to file a Waterloo, city petition against defendants Plaehn, Rooff estate of James negligent allowing against White were but not pole persons; the unidentified placed *3 668.4, to be in the relating street. The defendants Iowa Code section to they place (3) countered that and pole liability, applied; did not the several and in the street that the they persons and that could not have unidentified up They foreseen that it would end there. not be in assigning considered alleged percentages also liability that Baldwin and Plaehn under section 668.4. drinking operat- and that Plaehn had Following rulings, these parties both ed negligent his vehicle in a manner. granted were leave to file interlocutory ap- peals. defendant Rooff filed a compel discovery, motion to claiming that Plaehn respond had failed to discovery to I. Against The Claim the Estate. requests. The trial court ordered him to These attempted defendants bring to respond. 4, 1981, January On Plaehn died Plaehn, the estate of James as an addition- accident, in an unrelated automobile and defendant, al in order to dilute their own his estate plaintiff. was substituted as a percentage thereby and es- discovery request remained unan- cape joint and several See Iowa swered. (1985) Code section (eliminating 668.4 Defendant Rooff moved to dismiss the and liability several as to defendant estate’s suit because of its continued fail- fifty percent found less than negligent). respond ure to discovery to the order. The They argue that the court’s allowing order

trial court sustained the motion. In addi- against a claim proper Plaehn’s estate was tion, claims of the against estate of Plaehn (1) for three reasons: Iowa Rule of Civil all of the dismissed, other defendants were claim; (2) Procedure 34 allows such a January on under Iowa Rule of applicable statute of limitations was not Civil Procedure 215.1. that of section 633.410 but the five-year 614.1(4), statute of section relating to “oth- On June defendants Rooff and actions”; er even if proper attempted White bring to the Plaehn estate 633.410, statute of limitations is section back into by filing the suit a motion for “peculiar existed, per- circumstances” thus leave of court to file a third-party petition mitting filing. a late The estate of James against it. The sought defendants also to Plaehn, curiae, as amicus plaintiff and the cross-petition file a against certain “uniden- Baldwin, challenge the order granting the who, contended, tified vandals” they actual- cross-petition against the estate. ly placed pole on the roadway. It is the attempts estate, defendants’ bring true, claim, A. It is as defendants that a vandals,” and the “unidentified which implead motion to party third after the spawn the appeal. issues on ten-day period provided by the rules lies within the sound discretion of the district Defendant adjudica- Rooff moved for an Atlas, court. Kingman Ltd. v. Ware- points, asserting that, tion of law even Co., (Iowa house the court joinder would not allow formal 1984). vandals, the unidentified liability parties these should nonetheless be con- discretion, No amount of trial court how- sidered in assessing negligence. ever, Baldwin can reinstate a case once the limita- requested ruling resisted and period that section tion expired, section 633.410 has (barring joint 668.4 liability “peculiar unless circumstances” exist. where the defendant is fifty per- 633.410, less than probate Section claims statute (often referred our “nonelaim” opened. to as stat- before his estate was If they had ute) provides: spread desired liability around, (and estate, estate) Plaehn against

All claims a decedent’s later his were obvious charges, other than candidates. circumstances, due or to Under these due, contingent, become or the need liq- filing contingent absolute claim was unliquidated, uidated or reasonably Based foreseeable. on these founded otherwise, contract or shall be circumstances, forever and the broad estate, against personal barred 633.410, section we believe that this claim representative, distributees of subject was one filing provisions estate, unless filed with the clerk and the claim of cross-peti- within six after the months date of the tioners is barred section 633.410 unless publication second of the notice to credi- peculiar are circumstances established. tors; however, provided, person- that the B. The district court ruled that representative al may waive such limita- “peculiar circumstances” existed so as to filing; provision tion on *4 and this shall not excuse the filing. late claimant’s We first equitable bar claimants entitled relief scope note the of our review. While sec peculiar due to circumstances. tion 633.410 says “equitable” that relief added.) (Emphasis granted peculiar be under circum (The period claims has now been reduced stances, probate a proceeding court to four, from six months to but this amend- peculiar establish law, circumstances is at ment does this not affect case. See 1984 equity. Therefore, our review is not de 1080, 9.) eh. Acts § novo, and the district court’s fact-finding is that this obvious is It will be supported by affirmed if substantial very broad, covering claims ... “[a]ll evidence. See In re Estate Northrup, of due, whether due or to become absolute or (Iowa 918, 1975); 230 N.W.2d In re contingent, liquidated or unliquidated....” Vance, 875, Gwynne Claim v. 258 Iowa of It suggested, has been reading based on a 877, 917, (1966); 140 N.W.2d 918-19 Rind Harsh, 117, of Nichols v. 202 Iowa Estate, 1124, v. Mundt 247 Iowa fleisch (1926), N.W. 297 the test for determin 1128, (1956). 643, 77 N.W.2d ing contingent whether a claim will be however, case, In this there is no barred if not filed under section 633.410 is dispute parties agree about the facts. The requiring the practicality timely a filing. delayed filing that the reason for of the example, For decedent had a cross-petition defendants’ was the desire to grantor deed, in a warranty it would not be advantage newly-enacted take of the stat practical require filing of a contin modifying ute the rule gent by every subsequent claim grantee on liability. 668.4. The See Iowa Code is § day basis that might some there be fact, law, sue is therefore not one but hand, practical On the other these by and we are not bound the district court’s problems do not exist same extent in Rohm, application of the law. Wolder v. guaranteed case where the decedent had (Iowa 1977); Northr There, a note. basis liability, and 921; up, 230 N.W.2d at Farmers Insur based, the circumstances on which it is are Group ance Merryweather, v. N.W.2d readily foreseeable. See S. Kurtz & It. 1974). (Iowa 186-87 Reimer, Iowa Estates: Taxation and Ad 13.13, (1975). at 441 ministration We § strong showing We have held that agree analysis with Nichols and peculiar necessary, is not circumstances es- apply that test here. pecially open when and the estate unset- addition, case, tled. In cross-petitioners peculiar-circumstanc- In this by exception liberally been sued and es Plaehn Baldwin while should be construed Plaehn They justice. plead- was still were to effectuate The burden of alive. there- ing fore aware of proving exception Plaehn’s involvement even is on the many gave seeking equitable rule of earlier cases which person relief. Northr- weight to factors. We up, 230 N.W.2d at 921-22. little those said Northrup that “peculiar indicate that circum Our cases [pjeculiar entitling a claim- circumstances include fraud or concealment. stances” equitable relief when “the ant to exist Donohue, v. 254 Iowa Groves delay period by fixed statute between (1962); Estate, 's N.W.2d 65 re Sterner filing claims be so excused and ex- (1938); 224 Iowa 278 N.W. 216 Mullen that, plained as considered in con- when Callanan, v. 167 Iowa 149 N.W. 516 nection with the claim asserted and the (1914). also Peculiar circumstances have estate, good conscience condition of promise in cases where a has been found dealing hearing and fair demand that a filing pay been made to without the the merits afforded the claimant.” be claim, Fahan, v. 249 Iowa e.g., Cave v. quoting James, 92 N.W.2d 434 Smallwood 230 N.W.2d at Ball v. O’Bryan, 208 Iowa 225 N.W. 848 176 Iowa 158 N.W. (1929), (1916). Brooks, or where there is a similar course Evjen See also debtor, part e.g., 1985)(filed of the (Iowa conduct on the today). N.W.2d (1873). McLain, 37 Iowa 189 Burroughs v. The district court did not elaborate Reimer, Kurtz & R. generally S. su finding peculiar circum on the basis pra, at 431. § that, believe, however, stances. in ad We hand, recog- On the other we have not change dition to the law of where the de- nized circumstances liability brought several about the en lay to a mistake of law or lack is attributed chapter undisputed actment of *5 See, knowledge applicable law. of surrounding the claim establish that facts McPheeters, 233 Iowa e.g., In re Will peculiar circumstances existed. These (1943)(fact that claimant 8 N.W.2d 588 following: facts include the The Plaehn improperly (and it, himself) was a nonresident and was ad- Plaehn estate before had period vised as to the of time allowed in actively pri- involved in the same suit been filing Iowa for a claim held insufficient as Plaehn; the or to its dismissal as to extent peculiar matter of law to constitute circum- negligence previously of Plaehn’s been stances.); Palmer, 212 In re Estate contributory put by in issue the claims of 58 Iowa N.W. see also defendants; asserted Roof (1889). 42 N.W. Knight, Iowa and, perhaps important, the Plaehn most open still and unsettled. If estate was case, In this there is no claim that the dismissed, Plaehn’s suit had not been estate the claimants or misled concealed fact, his would have been necessary file In information to a claim. weighed together with that of these de fact, noted, already they were aware as because the estate would have fendants the facts of the accident even before “party” section under Iowa Code been opened. change estate was The in the law (which will discussed 668.2 and 668.4 be affecting joint liability during and several later). pendency of this case was a circum- reasonably stance which could not have only the Plaehn The reason estate does anticipated, regardless of the dil- case, in not remain in the which he was claimants, pre- igence of these because the originally plaintiff, is that it was dis- liability joint vious law of and several provide him missed as to for his failure to firmly seemed to be entrenched. Was this discovery prosecute promptly and failure to peculiar the kind of circumstances envi- procedure under rule of civil 215.1. The by section 633.410? sioned lack dismissal therefore resulted from a (and diligence part on the of Plaehn his Recently, ri- our cases have shown less estate), part of the claim- gidity resolving peculiar cir- and not on the claims anamolous, cumstances, say opting "good ants. It would be to for a test of con- least, dealing” preference deny and fair to the claimants relief here on science .-to ground the dismissal relieved Plaehn’s tent legislature. of the Welp, See application estate from the of section 668.4. N.W.2d at 483. Northrup, Under test of we conclude wording The of this act could hardly that the district properly court allowed the says: Act, be clearer. It “This except for filing late under the circumstance 4, applies section to all cases filed on or exception to section 633.410. July after 1984. Section 4 of this Act applies to all cases tried on or July after II. The Application Section 668.f 1984.” 1984 Iowa Acts ch. 15. We § Iowa provides: Code section 668.4 decline to any attribute other meaning to brought actions chapter, under this provision this in view of the clear language. liability rule of and several shall B. The question apply remains to defendants who are found to application of bear fifty percent less than 668.4 would of the total be vio lation of plaintiffs assigned parties. fault to all pro substantive due rights. cess It is well established that a applies issue is whether this section presumed statute is prospective to be only case, this which July was filed before unless expressly made retrospective. 1984, the chapter effective date of 668. Code 4.5. Statutes specifically which § af chapter While the remainder of applies fect rights substantive are construed to to all cases on July or after filed operate prospectively legislative unless in specifically section 668.4 applies to all cases tent to the contrary clearly appears from tried or after express byor necessary and Iowa Acts Ch. 15. The trial court § implication. unavoidable See Matter ruled that applied section 668.4 therefore Mil, Chicago, R.R., St. P. & Pac. this action. The effect ruling of such is to (Iowa 1983). N.W.2d Conversely, preclude application of our rule of solely the statute remedy relates to a or liability as to of the named procedure, ordinarily applied it is pro both defendants who are fifty found less than spectively retrospectively. State percent ex negligent. O’Neil, rel. Leas in Interest presents Plaintiff arguments two in at- (Iowa 1981). tacking ruling: Other language con- *6 tained in section suggests 668.4 previously that this We have discussed the distinc- should, 668, like the chapter rest of tions between procedural substantive and apply only 1, 1984; to cases after creates, law. Substantive law defines and filed application that the of section 668.4 regulates rights. ex State rel. Turner v. a taking is of a right, vested thus a viola- Limbrecht, 330, (Iowa 246 N.W.2d 332 tion of her process substantive due rights 1976). law, hand, Procedural on the other under both the United States and Iowa method, practice, “is the procedure, or le- Constitutions. gal machinery by which the substantive law is enforced or made effective.” Id. at A. meaning of a statute is al “[T]he 332, quoting Schmitt v. Jenkins Truck ways law, a matter of and final construc Lines, Inc., 260 Iowa 149 N.W.2d interpretation tion and statutory of Iowa 789, (1967). 791 Finally, a remedial statute law is for lp this court.” We v. Iowa De is one that private intends to afford a reme- Revenue, partment 481, 333 N.W.2d 483 of dy person injured by to a wrongful act. (Iowa 1983), quoting Sorg v. Depart generally designed It is to correct an exist- Revenue, 129, ment 269 N.W.2d 131 of ing law or existing grievance. redress an (Iowa 1978). legislature The intent of the Noting Id. that there is no constitutional polestar construing is the in the statute. prohibition against retrospective laws, Yetter, we 245, (Iowa Khort v. 344 N.W.2d have said that 1984). Ordinarily, meaning the usual statutory words are attached to express absence of an constitu- [i]n manifest, contrary absence of a in- tional retrospective inhibition laws are Moreover, the III. The prohibited not as such. Unidentified Tortfeasors. of the United States does Constitution requesting filed a motion The defendants prohibit in the enactment not terms that, the trial court did not in the event do retrospective laws which states joinder of the unidentified permit actual impair obligation of contracts or not permit jury parties, it nevertheless post facto partake of the character of ex compare assessing in lia- their Thus, refused, prior to the enactment of bility. laws. The district court and we correctly to the Feder- so. the Fourteenth Amendment think Constitution, law, retrospective un- al argument heavily Defendants’ relies in- falling within other constitutional less Wichern, N.W.2d Goetzman hibitions, constitutionally operate could (Iowa 1982), adopted which we pas- property rights. After the to divest comparative negli- common-law doctrine of Amendment, sage Fourteenth gence. compara- We said the doctrine of however, by the protection afforded “assigns responsibility tive so as to process damages proportion party’s due clause was extended to a fault in proximately causing them.” at 752. retrospective laws from divest- Id. prevent standard, upon this Based “fairness” de- rights rights property or vested ing fendants submit we should allow the com- many of the states there generally. parison fault of absent tortfeasors. expressly provisions are constitutional any only passage prohibiting, not Goetzman, however, In a case after we impairing the post facto law or law ex rejected argument a similar fairness raised contracts, obligation of but statute attempt modify principle in an liability. retrospective operation. in its We noted that limited to the scope of Goetzman was Turner, at ex rel. State abrogation contributory negligence only quoting 73 at Am.Jur.2d Statutes § and was not intended to authorize the (1974). 485-86 negli reallocation of fault wholesale right particu- in a Plaintiff had no vested Faris, gence Rozevink v. cases. See litigation lar result of this or in the continu- (Iowa 1983). N.W.2d 849-50 principle of unlimited ation of the point to cases from other Defendants Schwarzkopf several v. Sac approved compari jurisdictions which have N.W.2d County Supervisors, Board negligence of absent tortfeasors. son of the 1983). (Iowa We have noted that See, Motorcycle American Associa e.g., right it is some- “vested” unless Court, 20 Cal.3d Superior tion v. thing expectation, than a mere more Cal.Rptr. n. P.2d 906 at anticipated based on an continuance of 2n. v. Material Service Bofman present right It some laws. must be Ill.App.3d 81 Ill.Dec. Corp., 125 *7 property in that has become or interest 1064, (1984); N.E.2d Brown established, open fixed or and is not to Keill, 224 P.2d Kan. Industries, Inc., controversy. or doubt Paul v. N.L. (Okla.1980); P.2d 69-70 Bowman v. 8, quoting Id. at from Leach v. Commer- Barnes, (W.Va.1981); 282 S.E.2d Bank, 1154, 1165, Savings 205 Iowa cial County v. Ri Board Commissioners (1927). Any 213 N.W. interest denour, (Wyo.1981). 623 P.2d might that these defendants have 668.4, however, adopts a Section concerning joint continued state of law scope “parties” whose more restrictive liability not a “vested” and several was negligence may be considered. Iowa Code protection. right entitled constitutional provides this definition of a section 668.2 correctly the trial court ruled We believe “party”: 668.1(4) applicable in that section is this Party case. defined. chapter, joined

As used in this parties. unless other- as This is a deliberate required, “party” wise means of the decision. It cannot be told certainty with following: person whether that actually was at fault

1. A claimant. or what fault should be attributed to him, sued, or whether he will ever be or person 2. A named as defendant. whether the statute of limitations will person 3. A who has been released him, run on attempt etc. An to settle pursuant to section 668.7. these matters in a suit to which he is not third-party 4. A defendant. party binding would not be on him. apparent persons It is that unidentified are plaintiffs Both and defendants will have “parties” purposes applying not for significant joining incentive for available liability new statute. defendants who be liable. The more But apply does section 668.2 to a parties joined whose fault contributed to case, this, such July as which is filed before injury, the smaller percentage 1, 1984, the effective date of the act? The fault allotted to each of parties, the other says apply act section 668.4 will to such plaintiff or the defendant. cases, date; if tried after that but it also Id. says only portion section 668.4 is the of the The trial court correct in given ruling act to be such retroactive effect. was We that that, despite language, parties believe unidentified 668.4, could not applicable assessing per as well be considered in as section centages Intervening liability issues of and severable in acts of course, By persons may, all cases tried after unidentified mak still be ing retrospective, section 668.4 proximate it necessar considered on the issue of cause. ily provision, 668.2, made the definition ret We find no básis for reversal. rospective as well. To hold that section AFFIRMED. apply 668.4 would to such cases but that necessarily the definition incorporated in it except All concur Justices UHLENHOPP not, sense, would would make no and we do CARTER, JJ., who dissent from Divi- legisla attribute such an intent to the sion IB. 4.4(3) ture. (presumption See Code § UHLENHOPP, (concurring Justice intended); that reasonable result of statute part, dissenting part). (manifest Welp, 333 N.W.2d at 483 intent legislature prevail will im over literal I opinion except concur in the court’s port used); of words Iowa National Indus result, I-B division and the from which I Department trial Loan Co. v. Iowa of dissent. The Plaehn estate was dismissed Revenue, (Iowa 1974) January out of the case on 1982. De- (same). third-party peti- fendants did not file their Comparative pro- against

The Uniform tion that estate until June Fault Act only apportionment During vides of the dam- some seventeen months later. ages among “parties.” As time the originally used Plaehn estate was act, “party” party uniform includes third-party litigation I think cir- persons defendants and certain who have cumstances existed under section 633.410 released, but it does not include un- of the Iowa Code. But when the Plaehn persons. Compara- identified Uniform case, estate was dismissed from the I think (1985 tive Fault Act 12 U.L.A. 46 bring § defendants had to the estate Supp.). The comments the commission- back into the case within a reasonable time. *8 expand ers on the reasons: circumstances, I do not think that (now [Ljimitation parties which excuse failure to file to the to the action within six four) months, ignoring persons means other who excuse failure to file for an regard my opin- have been at fault with unreasonable additional time. particular injury ion, but who have not been hiatus seventeen months long. I case was too would hold that the

third-party petition filed was too late.

CARTER, J., joins in this concurrence in

part part. and dissent in EVJEN,

George M. Administrator

the Estate of Mark Allen Plaintiff,

Evjen, BROOKS,

Philip D. Administrator

the Estate of Mark J.

Pauly, Appellee, Corporation, and 7-Elev Southland

en, Road, S.E., Mt. Vernon Cedar Iowa,

Rapids, Appellant.

No. 84-1055.

Supreme Court of Iowa. Seeck,

Craig A. Levien and Vicki L. Dav- enport, appellant.

Robert R. Rush and John C. Monroe of Dallas, Lynch, Harman, Smith & Cedar Rapids, appellee. P.J., by UHLENHOPP,

Considered HARRIS, MeGIVERIN, LARSON, and SCHULTZ,JJ.
LARSON, Justice. Two in wrongful defendants death case arising out of a car accident cross-claimed against the estate of the driver for indem-