Charles FURNALD, Appellant, v. Anthony HUGHES and Emcasco Insurance Company, Appellees.
No. 10-0180.
Supreme Court of Iowa.
Sept. 30, 2011.
All justices concur except MANSFIELD and ZAGER, JJ., who take no part.
Jon A. Vasey of Elverson, Vasey & Peterson, L.L.P., Des Moines, for appellee Hughes.
C. Scott Wormsley of Bradshaw, Fowler, Proctor, and Fairgrave, P.C., Des Moines, for appellee EMCASCO.
APPEL, Justice.
This case requires that we consider the scope of Iowa‘s savings statute that continues the deadline imposed by the statute of limitations for six months when “the plaintiff, for any cause except negligence in its prosecution, fails therein.”
The question posed on appeal is whether the voluntary dismissal of the plaintiff‘s claim under the circumstances of this case meets the savings statute requirement that it “fails” without “negligence in its prosecution.” For the reasons described below, we conclude that the plaintiff‘s claim does not meet the requirements of the savings statute and that the district court properly granted summary judgment for the defendant.
I. Factual and Procedural Background.
The plaintiff, Charles Furnald, and defendant, Anthony Hughes, were involved in an automobile accident in July 2006. Furnald filed a timely personal injury lawsuit against Hughes arising out of the accident. Furnald also timely filed an underinsured/uninsured claim against EMCASCO Insurance Company. The district court set a trial date of April 14, 2009.
On April 3, 2009, eleven days prior to the scheduled trial, Furnald voluntarily dismissed his claims without prejudice. Furnald‘s counsel left two telephone messages with opposing counsel advising him of the dismissal and his intent to refile the action. Furnald‘s counsel did not file a motion for continuance of the trial, and he did not seek consent of opposing counsel regarding the dismissal. He acted unilaterally.
On June 29, 2009, Furnald refiled the action. Hughes‘s answer raised the affirmative defense that the action was barred by the two-year statute of limitations established in
Furnald resisted. He claimed that
Hughes responded that the plaintiff has the burden of showing lack of “negligence in the prosecution” of the underlying lawsuit. Citing Pardey v. Town of Mechanicsville, 112 Iowa 68, 83 N.W. 828 (1900), Hughes argued that to voluntarily dismiss a suit after the statute of limitations had run without seeking a continuance constitutes negligence in the prosecution.
The district court granted summary judgment in Hughes‘s favor. The district court noted that Furnald‘s counsel failed to seek a continuance and failed to consult with opposing counsel about a continuance or delay in trial. Citing three older Iowa cases, the district court noted that, under these circumstances, Furnald was not compelled to voluntarily dismiss the action as required under Iowa case law.
II. Standard of Review.
Summary judgment rulings are reviewed for correction of errors at law. See
III. Discussion.
A. Concept of Savings Statutes.
Savings statutes are as old as statutes of limitations. When the first statute of limitations was enacted in England in 1623, it was accompanied by a savings clause. Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, 595 (1915). Today, many states have enacted a version of a savings clause in their own versions of the statute of limitations. Iowa‘s savings clause dates to our early days of statehood. See Iowa
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. Gen. Accident Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 285 (1962); William D. Ferguson, The Statutes of Limitation Saving Statutes 56-58 (1978) [hereinafter Ferguson]. The concept generally seems clear enough. For example, substantial argument can be made that a timely but highly contested claim that is ultimately dismissed for lack of subject matter jurisdiction, personal jurisdiction, venue, or for some arcane pleading or other procedural defect, should not leave a plaintiff without a day in court because of the expiration during the pendency of the action by the statute of limitations.
At the same time, while it is important to provide plaintiffs with a meaningful day in court, savings statutes are not ordinarily designed to swallow entirely the ordinary restrictions of a statute of limitation. Statutes of limitation embrace weighty policies of certainty and ensure that trials occur when witnesses’ memories are fresh and nontestimonial evidence is still available. See Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788, 792 (1944). The need to strike a proper balance between the competing policies of providing a plaintiff with a meaningful opportunity to be heard while providing a defendant with the certainty and stability afforded by a statute of limitations has been an issue confronting legislatures and the courts for decades.
Whether a voluntary dismissal at the request of the plaintiff is the kind of failure that allows the plaintiff to bring a new action within the period of time specified by a savings statute is a subject of controversy. See generally C.C. Marvel, Annotation, Voluntary Dismissal or Nonsuit as Within Provision of Statute Extending Time for New Action in Case of Dismissal or Failure of Original Action Otherwise than upon the Merits, 79 A.L.R.2d 1290 (1961) (collecting cases). The answer depends upon the particular wording of the applicable savings statute and the judicial gloss placed upon those words.
B. Approaches Under Other State Savings Statutes to Voluntary Dismissals.
1. Rule of construction.
Many cases from other jurisdictions suggest that savings statutes are to be regarded as remedial and liberally construed to serve the purpose of affording a diligent plaintiff the opportunity to renew a suit that was dismissed on grounds other than the merits. See, e.g., Gosnell v. Whetsel, 198 A.2d 924, 927 (Del.1964); Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn.1995); see also Smith v. Stratton, 835 P.2d 1162, 1165 (Alaska 1992). In holding that an involuntary dismissal did not disqualify a plaintiff from seeking relief under the statute, Justice Cardozo declared that the purpose of the savings statute “is not to be frittered away by any narrow construction.” Gaines, 109 N.E. at 596. The rule of liberal construction, however, does not provide reviewing courts a license to rewrite the terms of the statute. See McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430, 434 (2007) (holding service must be attempted notwithstanding liberal interpretation of statute); Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St.3d 391, 653 N.E.2d 235, 240 (1995) (stating party seeking to invoke savings statute must meet statutory criteria notwithstanding liberal construction).
In a number of states, savings statutes directly address the issue of whether a plaintiff may voluntarily dismiss an action and avail himself of the benefit of the savings provision. The savings statutes in Georgia, Tennessee, and Virginia explicitly allow application of the savings statute when the “plaintiff discontinues or dismisses” the action, whenever a “judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff‘s right of action,” and to a “voluntary nonsuit.” See
3. Cases in other states involving savings statutes with Iowa-type language.
The cases with the most potential for instruction for us, of course, are cases in which the state savings statutes do not expressly address the question of voluntary dismissals but apply only when the plaintiff‘s original cause of action “fails” or does not amount to a claim otherwise defeated or avoided as a matter of form. A brief review of some of the cases that fall into this category offers insight into the nature of the debate animating the state courts as they consider the proper scope of their savings statutes.
An Indiana court held long ago that a claim that is voluntarily dismissed does not “fail” under its savings statute. See Pa. Co. v. Good, 56 Ind. App. 562, 103 N.E. 672, 673-74 (1913). The rationale in Good was that, in order for a claim to “fail,” it must be defeated by a source other than the action of the plaintiff. See Good, 103 N.E. at 674. At the time of the Good decision, a number of state supreme courts, including the Iowa Supreme Court, had arrived at a similar interpretation of their savings statutes. See, e.g., Archer v. Chi., Burlington & Quincy Ry., 65 Iowa 611, 613-14, 22 N.W. 894, 894-95 (1885); Robinson v. Merchants’ & Miners’ Transp. Co., 16 R.I. 637, 19 A. 113, 114-15 (1889) (voluntary abandonment not an action “abated,” “avoided,” or “defeated“); Hayes v. Stew-
The Indiana Court of Appeals affirmed its traditional approach in the case of Kohlman v. Finkelstein, 509 N.E.2d 228, 232 (Ind.Ct.App.1987). Other state courts have followed a similar course. See Baker v. Baningoso, 134 Conn. 382, 58 A.2d 5, 8-9 (1948) (affirming older precedent that voluntary dismissal does not qualify under statute as claim “otherwise avoided or defeated ... for any matter of form“); Gray v. Ahern, 63 R.I. 363, 9 A.2d 38, 40-41 (1939) (same).
On the other hand, other states, such as Kansas and Oklahoma, have taken a different approach. In both Kansas and Oklahoma, fountainhead interpretations of their state savings statutes held the requirement that an action “fails” was satisfied through voluntary dismissal of the action. McWhirt v. McKee, 6 Kan. 412, 419 (1870); Wilson v. Wheeler, 28 Okla. 726, 115 P. 1117, 1117 (1911). In McWhirt, the court reasoned that the cause of the failure—why the case was dismissed—was not relevant as long as there was a failure to obtain the object of the suit and the failure was not on the merits. McWhirt, 6 Kan. at 419. The approach that a case “fails” when it is voluntarily dismissed has continued in more recent Kansas and Oklahoma cases. See Smith v. Graham, 282 Kan. 651, 147 P.3d 859, 868 (2006); Hamilton ex rel. Hamilton v. Vaden, 721 P.2d 412, 418 (Okla.1986).
While the above courts have held to their long standing precedent, the Ohio Supreme Court has departed from its original view as to what constitutes a failure under Ohio‘s savings statute. Originally, the Ohio Supreme Court held that a voluntary dismissal did not satisfy the requirements of Ohio‘s savings statute. Siegfried v. N.Y., Lake Erie & W. R.R., 50 Ohio St. 294, 34 N.E. 331, 332 (1893). Ohio courts followed the Siegfried approach until 1982. See, e.g., Beckner v. Stover, 18 Ohio St.2d 36, 247 N.E.2d 300, 302-03 (1969); Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82, 167 N.E.2d 774, 777 (1960).
In 1982, the Ohio Supreme Court reversed course. In Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 431 N.E.2d 660, 663-64 (1982), the Ohio Supreme Court reexamined the holding of Siegfried and its progeny. The Ohio Supreme Court determined that because of the adoption of the provisions of the rules of civil procedure that control voluntary dismissals, it was no longer necessary to narrowly define the phrase “fails otherwise than upon the merits” in Ohio‘s savings statute. Chadwick, 431 N.E.2d at 665. As a result, the Ohio Supreme Court abandoned the Siegfried line of cases and held that a case that is voluntarily dismissed “fails” under Ohio‘s savings statute. Id. A dissent in Chadwick suggested that the mere adoption of new rules of procedure was not a sufficient basis to change the traditional interpretation of the savings statute. Id. at 666-67 (Krupansky, J., concurring in part and dissenting in part).
C. Uniform Commercial Code Approach to Savings Statute.
The Uniform Commercial Code (UCC) contains a version of the savings statute.2
D. Iowa Law Regarding Voluntary Dismissals Under Savings Statute.
We begin with the actual words of the Iowa savings statute.
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, for the purposes herein contemplated, be held a continuation of the first.
Although there have been a couple dozen cases under Iowa‘s savings statute, none of them mention the need for liberal construction of the statute. Instead, we have emphasized the need for plaintiffs to provide “strict” proof that they were not negligent in the prosecution of the original actions. Ryan v. Phoenix Ins. Co. of Hartford, Conn., 204 Iowa 655, 660, 215 N.W. 749, 751 (1927). Strict proof of lack of negligence is perhaps not necessarily inconsistent with an otherwise generous approach to the statute. Nonetheless, the ambience of our cases suggests a fairly focused approach. See Boomhower v. Cerro Gordo Cnty. Bd. of Supervisors, 173 N.W.2d 95, 98 (Iowa 1969) (Becker, J., dissenting) (noting narrow reading afforded to Iowa‘s savings statute). In any event, even a rule of liberal construction does not necessarily provide a basis for overruling established precedent regarding the statutory requirements of Iowa‘s savings statute. See Baker, 58 A.2d at 8 (stating liberal construction does not bring voluntary dismissal within the scope of savings statute).
The first voluntary dismissal case involving the savings statute is Archer. In Archer, the plaintiff originally brought his action in federal court, but voluntarily dismissed it believing that he could not obtain a fair trial in federal court. Archer, 65 Iowa at 613, 22 N.W. at 895. The plaintiff then attempted to refile his claim in state court. Id. at 612, 22 N.W. at 894.
In Archer, the court refused to apply the savings statute to allow the refiled claim. Id. at 613, 22 N.W. at 895. The Archer court noted “a voluntary dismissal under compulsion” may be a failure under the statute. Id. at 612-13, 22 N.W. at 894.
We again addressed the issue of whether a plaintiff who voluntarily dismissed a case could refile the action under the savings statute in Pardey. In this case, the plaintiff claimed that she dismissed the action because her witnesses were induced into drinking alcohol to the point of intoxication, which prevented the plaintiff from calling them to testify. Pardey, 112 Iowa at 70, 83 N.W. at 828. The plaintiff did not request a delay or continuance. Id. at 71, 83 N.W. at 829.
Citing Archer, the Pardey court ruled against the plaintiff. Id. The Pardey court concluded that the plaintiff‘s failure to seek a continuance or delay in the proceedings rendered her dismissal “voluntary, not compulsory.” Id. As a result, the plaintiff‘s dismissal of the case “was negligence in its prosecution.” Id.
The Pardey court thus tended to combine the elements of “failure” and “negligence.” See id. Under Pardey, a “failure” does not occur when there are other potential procedural options available to give the plaintiff relief; when there are other potential procedural options of relief available, it is negligence for a party not to pursue them. Id.
The next case dealing with the application of the savings statute to a voluntary dismissal is Ceprley v. Inc. Town of Paton, 120 Iowa 559, 95 N.W. 179 (1903). In Ceprley, the plaintiff dismissed the action at the close of testimony. Ceprley, 120 Iowa at 560, 95 N.W. at 179. The plaintiff asserted that the dismissal was necessary because the defendant offered unexpected evidence of contributory negligence that could not have been anticipated prior to trial. Id. at 560-61, 95 N.W. at 180.
The Ceprley court rejected the plaintiff‘s argument. Id. at 561, 95 N.W. at 180. The court noted that a slight delay in the trial of the cause, or a continuance if need be, were available to resolve the problem. Id. The Ceprley court stated that “[d]iligence required that the plaintiff should have endeavored in one of these two methods, or in any other way open to him, to avoid the necessity of dismissing his action.” Id. at 561-62, 95 N.W. at 180.
Another case involving an effort to invoke the savings statute after a voluntary dismissal is Weisz v. Moore, 222 Iowa 492, 265 N.W. 606 (1936). In Weisz, the plaintiff‘s counsel had written letters to defense attorneys seeking a trial date, but received no response. Weisz, 222 Iowa at 499, 265 N.W. at 610. Then, the plaintiff‘s counsel received a call from the trial judge informing him that the trial would begin the next day. Id. The plaintiff‘s lawyer advised the judge that he lived 150 miles from the place of trial and that his client lived 250 miles away and that, as a result, he could not put on his case the next day. Id. The judge refused to change the date. Id. Counsel called opposing counsel seeking agreement to a delay, which was refused. Id. The plaintiff‘s attorney again called the judge seeking arrangements to postpone
The Weisz court held that the savings statute applied to the plaintiff‘s second action. Id. The court noted there was no evidence in the record that the plaintiff intended to unduly delay trial; rather, the plaintiff sought a brief delay because he was advised of the trial date without sufficient advance notice to allow him to attend and present his case. Id. “Under these circumstances,” the Weisz court explained, it could not “be said that there was a voluntary dismissal without any compulsion, because the plaintiff had not filed a normal motion for a continuance before dismissing his case.” Id.
Since 1932, there has been one additional case dealing with the application of the savings statute to a case where some of the defendants were voluntarily dismissed. In Tull v. Honda Research & Development, Ltd., 469 N.W.2d 683, 684 (Iowa 1991), the plaintiffs originally brought an action in Polk County against four corporate defendants and an individual arising out of personal injuries resulting from an accident involving an all terrain vehicle. The plaintiffs settled with all of the corporate defendants. Tull, 469 N.W.2d at 684. The remaining individual defendant, a nonresident of Polk County, sought to dismiss the action for improper venue. Id. After the district court denied the motion, this court granted leave to file an interlocutory appeal. Id. at 685.
On appeal, this court determined that venue was no longer proper with respect to the remaining individual defendant. Id. The court determined that the dismissal of the corporate defendants defeated venue as to the nonresident defendant as a matter of law. Id.; see
E. Academic Commentary Regarding Application of Savings Statutes to Voluntary Dismissals.
The leading academic commentary on savings statutes generally is William D. Ferguson‘s treatise, The Statutes of Limitation Saving Statutes (1978) [hereinafter Ferguson]. This comprehensive volume surveys the history of savings statutes and proceeds to examine hundreds of cases under the various state savings statutes, including those from Iowa.
Ferguson generally argues that savings statutes are designed to allow plaintiffs to proceed on the merits and not be caught in procedural snares. Ferguson at 312. While recognizing that a proper interpretation of a savings statute depends upon the language adopted by the legislature, he generally suggests that savings statutes should not be used to provide plaintiffs with a tool to unilaterally override the applicable statute of limitations. Id. at 287-88.
Ferguson generally cites with approval the Iowa cases related to voluntary dismissals. Id. at 307-08. Further, he cites with approval Central Construction Co. v. Klingensmith, 256 Iowa 364, 127 N.W.2d 654 (1964), which he states stands for the proposition that the use of continuance procedures are a prerequisite to avoid the statute of limitations. Ferguson at 326-27. According to Ferguson, it seems “eminently fair to hold that plaintiff must show reasons sufficient to warrant a continuance or to defeat a dismissal rather than delaying unduly the trial of the action and then compounding the delay by starting anew.” Id. at 327. Ferguson, however, suggests that the proper remedy in Weisz might
F. Analysis.
At the outset, we find that our cases concerning the application of the Iowa savings statute when the plaintiff voluntarily dismisses the underlying claim have a unifying theme. The Archer-Pardey-Ceprley line of cases 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. See Ceprley, 120 Iowa at 561-62, 95 N.W. at 180; Pardey, 112 Iowa at 71, 83 N.W. at 829; Archer, 65 Iowa at 613, 22 N.W. at 895. 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. See Ceprley, 120 Iowa at 561-62, 95 N.W. at 180; Pardey, 112 Iowa at 71, 83 N.W. at 829; Archer, 65 Iowa at 613, 22 N.W. at 894-95.
We recognize that the Eighth Circuit in Davis v. Liberty Mutual Insurance Co., 55 F.3d 1365, 1368 (8th Cir.1995), suggested our recent cases abandoned the requirement of “compulsion.” We do not agree. Our review of the cases cited by the Eighth Circuit shows no indication of a change in direction.
In Klingensmith, we held a dismissal under
Nonetheless, even if the cases cited in Davis do not indicate an abandonment of the compulsion requirement, the question remains whether we should now abandon the Archer-Pardey-Ceprley approach. If the Archer-Pardey-Ceprley line remains good law, the district court judgment must be affirmed. In this case, Furnald plainly could have sought a continuance or a delay as a remedy to the evolving medical evidence. Indeed, our rules contemplate such a procedure. See
We decline to do so. It is, of course, true that the rules governing the trial of cases have changed considerably over time and that some of the abuses that might have been possible in 1885—such as mid-trial voluntary dismissals without prejudice and repetitive dismissal and refiling of claims—are not generally allowed under today‘s rules. See, e.g.,
Our approach does not gut the savings statute. For example, our interpretation does not affect the classic situation in Tull where the plaintiff properly files an action against multiple defendants but subsequently settles with some defendants in a fashion that destroys venue. See Tull, 469 N.W.2d at 687. Similarly, in Wilson, we recognized that a plaintiff who has a claim dismissed based upon a legitimate dispute regarding a procedural technicality may be able to invoke the savings statute. See Wilson, 189 N.W.2d at 533-34.
We recognize that other jurisdictions have followed a different path. As discussed above, sometimes the difference is a result of different language choices by the legislature, and sometimes the difference is the result of choices among interpretive options by courts. The legislature may be fairly charged with knowledge of the smorgasbord of varied approaches to savings statutes, contained both in legislative enactments and in judicial decisions, of other states. See Rathje v. Mercy Hosp., 745 N.W.2d 443, 459-60 (Iowa 2008) (relying on legislative and jurisprudential trends among sister jurisdictions to determine legislative intent). Further, while the legislature has reopened statute of limitations questions in Iowa Code chapter 614 on occasion since the development of our interpretive approach to the savings statute in 1885, there has been no amendment to the savings statute to override our approach to voluntary dismissals. When it comes to altering our traditional approach, the legislature has shown no appetite to do so over the past 125 years. See Kohlman, 509 N.E.2d at 232 (declining to change interpretation that voluntary dismissals are not within scope of savings statute in part as a result of legislative inaction over seventy-five-year period).
We, of course, reserve the right to modify or alter our statutory interpretations. For example, we may depart from our precedents when we are convinced that the prior statutory interpretations are erroneous, where subsequent events reveal impracticability or lack of logic, or where the interpretations are otherwise so flawed as to require correction. See Rathje, 745 N.W.2d at 447.
We find no such problems, however, with the traditional interpretation of our savings statute. Under the established Archer-Pardey-Ceprley approach, the remedy offered by Iowa‘s savings statute is narrow and sharp, not broad and blunt. The notion that our savings statute is de
In short, we leave the law where we found it. We conclude, under the circumstances presented in this case, the plaintiff was not entitled to avail himself of the Iowa savings statute.
IV. Conclusion.
For the above reasons, the order of the district court granting the defendant summary judgment in this matter is affirmed.
AFFIRMED.
All justices concur except MANSFIELD, J., who takes no part.
STATE of Iowa, Appellant, v. Carson Michael WALKER, Appellee.
No. 10-0525.
Supreme Court of Iowa.
Sept. 30, 2011.
Notes
U.C.C. section 2-725 provides:
(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.