*1 by change prior shaken off a to the lien of the and cannot be Internal Revenue clings any prop- substance. It to form or Department of the United States in the subject which the can erty money or into proceeds of the insurance from the fire loss * * *(citation).” be traced of the building insured. wherein, is still another context There I would affirm the trial court. I jurisdiction, under the law of this find proceeds place insurance take the of insured MOORE, J.,C. and UHLENHOPP and exemption The from execution property. HARRIS, JJ., join this dissent. exempt proper survives the destruction of in ty, and continues for a reasonable time proceeds policy. Reyn of an insurance
olds, Haines, et al. v. 83 Iowa 49 N.W. Bess,
I also note that in United States 1054, 2 78 S.Ct. L.Ed.2d 1135 U.S.
(1958), government the federal advanced a surviving argument, lien and the theory Gary Virginia Harry HARRYMAN and Supreme accepted United Court States man, Individually parents and as of Rob position that a tax lien con- government’s Harryman, formerly minor, ert a through tinued the conversion of a life in- Harryman, Individually, Appel Robert policy surance with cash surrender value to lants, taxpayer’s death. The proceeds after court right taxpayer enjoy held that had policy the cash surrender value of the dur- HAYLES, McCarty, Gene E. Gilbert life, ing subjecting it to the his thus federal Riddle, O’Malley Robert F. taxpayer tax lien. After the death of the Iowa, Appellees. and Lee beneficiary argued the property No. 2-58259. right extinguished. Supreme was Supreme portion pro- found that Court of Iowa. Court equal ceeds to the cash surrender value at Sept. 1977. subject taxpayer’s death remained lien, though the federal tax even it was from a contractual to the
converted interest
policy proceeds. (Gerhart)
IV. In this case the insured it, right enjoy property, to sell
had duty it. He had no
or to borrow Bess, it, just taxpayer
insure as the su- insure life. The
pra, duty had no property by purchas- protected
insured to mort-
ing payable insurance loss in the event of its destruction in
gagee mortgage clause
keeping with a standard policy.
appended to hold that the tax liens survived
I would involuntary conversion of Gerhart’s
property building from a and contents and pro-
attached to the identifiable insurance my judgment
ceeds. In the trial court Depart- the tax lien of the
properly found of Iowa was
ment of Revenue of the State
633
Gene E. Hayles, Lee County Engineer, Gil- bert McCarty, Robert Riddle and Robert F. O’Malley, members of the Supervi- Board of sors of Lee County, and Lee
The matter reaches us on plaintiffs’ ap- *3 peal from an sustaining order defendants’ separate motions to petition. dismiss the We affirm in part, part, reverse in and remand for proceedings. further review
Our is limited to the issues by, raised allegations and the in, contained the pleadings. Stearns, Stearns v. (Iowa 1971). We take as true all pleaded well Bailey facts. v. Iowa Processors, Inc., Beef 213 N.W.2d (Iowa 1973). pertinent recite the alleged facts in they important become in
our particular discussion of issues.
Plaintiffs raise the following principal is- sues they which rely on for a reversal of the trial court’s order:
1. Iowa Code 613A.5 is unconstitution- § al on its face as violative process of due and equal protection. 2. Iowa Code 613A.5 is unconstitution- Fehseke, Madison, Fehseke & Fort for applied al as plaintiffs to these aas viola- appellants. tion of the process equal due and protection Hirsch, Wright, Adams, Burling- Link & clauses of the United States Constitution
ton, Anderson, Barry M. County and Lee I, and of Article 6 and 9 of the Iowa Keokuk, Atty., appellees. for Constitution. 3. The trial court in holding erred no MOORE, J., Heard before C. RAWL- cause of action against existed the individu- INGS, LeGRAND, REES and REYNOLD- supervisors al county engineer. and the SON, JJ. reaching specific issues, Before LeGRAND, Justice. general make a few observations which appeal This arises out of an helpful automobile should be later opinion. this Harryman (here- accident in which Robert claims were Robert), minor, after who a called was then 613A, brought Chapter under impos- permanent personal sustained serious and tort es subdivi- injuries. The accident occurred when a sions. Prior to the Chapter enactment of guest truck in which was a passen- 613A, Iowa adhered to a policy govern- ger striking overturned after a washed-out immunity. mental In abrogating that doc- portion of a road in Lee trine, legislature attached certain condi- seeking damages rights Robert started suit tions to the there created. The one $2,000,000 injuries. parents, important for his His appeal appears to this Gary Virginia Harryman, joined Although 613A.5. it has since been action, $100,000 amended, asking separate for their the statute at all times material damages. provided The action named as defendants as follows: damages who claims from statute which is
“Every person
generally
valid
to be un-
municipality
any
application
for or on account of
constitutional
in its
par-
ticular
death,
facts.
Walker v.
wrongful
injury
loss or
within the
Johnson Coun-
(Iowa
ty,
1973)
scope of section 613A.2 shall commence
authority there cited.
months,
within three
an action therefor
shall cause to be
person
unless said
We digress
injuries
here to describe the
governing body
presented to
Robert suffered in this accident as they are
sixty days
within
after the
municipality
set out in
petition.
He was rendered
death,
injury
loss
a
alleged wrongful
or
unconscious,
spinal
severed,
cord was
time,
stating
place, and
written
broken,
was,
five vertebrae were
and he
for
and the amount of
circumstances thereof
time, completely
paralyzed. He is now a
compensation or other relief demanded.
quadriplegic
only
ability
limited
compensa-
state the amount of
Failure to
move his shoulders and will be confined to a
*4
relief demanded shall not
tion or other
wheelchair for the rest of his life. He was
notice; providing,
hospitalized
invalidate
24,
continuously
August
from
1972,
10,
shall furnish full
information
August
claimant
until
and was rehos-
pitalized
the nature and extent of the
[regarding
nine times between that date and
August 8, 1974,
injuries
damages]
days
within fifteen
the date upon
which his
claim was
by
municipality.
against
No
first asserted
after demand
Lee Coun-
ty, although
against
he had filed suit
action therefor shall be maintained unless
individual
given
defendants earlier.
such notice has been
and unless
years
within two
action is commenced
Robert seeks to excuse his failure to com-
giving
The time for
after such notice.
ply with
grounds
613A.5 on the
§
he was
such notice shall
include a reasonable
incapacitated from filing
giving
suit or
no-
time,
ninety
length
days,
not to exceed
injuries.
tice because of his
alleges
He
during
person injured
which the
is inca-
up
condition continued
to the very time his
injury
giving
from
such
pacitated
petition was filed. This forms the back-
notice.”
ground for his claim the statute is unconsti-
tutional
sought
when it is
applied
to be
brought
present
The
suit was not
within
by arbitrarily
him
placing a 90-day
given
months nor was notice
three
period
limit on the
incapacity
which will
days
injury.
within 60
of Robert’s
excuse
give
failure
to
notice under
words,
complied
In other
613A.5 was not
613A.5. We hold there
is merit
to prevail, plaintiffs
In order to
with.
must
claim.
compliance
required.
show
was not
It is important
to
precise
understand the
say
Plaintiffs
the statute is unconsti-
I.
ground upon which Robert relies. As al-
tutional,
applied
both on its face and as
ready mentioned, we have previously up-
They
process
equal
raise due
them.
held the
against general
statute
constitu-
protection arguments.
tional
presents
attacks. Here Robert
a new
quickly dispose
We
of the claim the
constitutional
issue. He insists the statute
is
on its face
statute
unconstitutional
offends
equal protection
both the
and due
relying
Perry
on what we said in Shearer v.
process clauses because it denies to some
District,
Community
236
School
N.W.2d
incapacitated
(those
claimants
whose inca-
(Iowa 1975)
Lunday
Vogel
692-693
v.
pacity
beyond
days)
extends
90
the same
mann,
(Iowa 1971),
907
N.W.2d
gives
consideration it
to other incapacitated
we held the statute valid. Those
where
(those
claimants
whose incapacity is less
dispositive
cases are
of this issue.
days).
than 90
brings
II. This
us to the more diffi
agree
We
that this provision can
problem presented by
cult
Robert’s asser
not
equal protection
withstand an
chal
ap
lenge.
tion the statute is unconstitutional as
requirement
While there is no
all
is,
course,
plied
possible
It
satisfy
him.
for
must be treated alike in order to
objectionable
14th
part
standards under the
equal protection
had been omitted and
Amendment,
the differences in classifica
if
appears
it
the statute can still accomplish
and bear some rela
tion must be reasonable
principal
legislative purpose,
the re-
legitimate
state interest.
tionship to a
maining
valid
is said to be severable
Keasling
Thompson,
v.
from the invalid.
In such
obliga-
cases our
1974);
Vogel
(Iowa
Lunday
690-691
tion is to save as much of the statute as
mann,
at
907. We
supra, 213 N.W.2d
possible, eliminating only that which is nec-
every possible hypothesis
considered
have
essary
constitutionally
to make it
sound.
might
which this statute
be sus
Applying
principles
case,
those
to this
a provision
We are unable to save
tained.
hold
613A.5 is a valid and
enforceable
injured
under which some
claimants are
statute except for the words “not to exceed
incapacity
their
allowed to recover from
days.”
Those words are stricken. The
give notice of
being required
before
statute with this modification is valid and
identically
claim while others
situated ex
enforceable.
injuries
cept
severity
as to the
of their
are
person
now hold a
incapacitated as
right.
that same
statute now
denied
provided in
613A.5 has
days
following
incapacitated persons
two classes of
creates
incapacity
termination of his
give
badly they
the basis of how
have
solely on
statutory notice of injury.
Sprung
Cf.
been hurt.
Rasmussen,
(Iowa
incapacitated
If
claimants are to be al-
1970) and Bennett v. Ida County, 203
time
lowed a “reasonable” extension of
*5
228,
(Iowa 1972).
N.W.2d
234
notice,
give
incapacitated
all
claimants
must be treated the same. This statute is
Our
on equal protection
decision
makes it
satisfy this
fatally bad because it fails to
unnecessary to review the claim the statute
requirement.
also violates
process.
due
result can
obtain-
proper
We believe a
be
this, however,
Even
does not necessarily
excising
613A.5 the words
by
ed
from §
salvage Robert’s cause of action because no
days.”
90
This would elimi-
“not to exceed
injury
given
notice of
has ever been
to Lee
section,
part
the offensive
leav-
nate
substantial,
We have said
rather
ing
purpose
intact the main
of the statute
literal,
than
observance of this statute is
giving
effect to the clear intention of
Sneller,
sufficient.
See Vermeer v.
190
legislature
incapacitated
the
claimants
389,
(Iowa
N.W.2d
1971).
392-95
given
notify
be
a reasonable time to
the
In a
involving
case
another short-notice
the
injury.
defendant of
statute,
recently
filing
petition
we
held
by no means ends our
This conclusion
enough
satisfy
require-
was
to
the notice
inquiry
phase
into this
of the case. We
123.93,
shop
ment of
our dram
statute.
§
consider what effect our decision
must also
Keller,
588,
Harrop v.
253 N.W.2d
592-593
has on the statute as a whole and determine
(Iowa 1977).
Harrop
compared
In
we
the
section must fall because a
if the entire
purpose
given
of the notice to be
under
is invalid.
given
123.93 with that
to be
§
length
at
question
We discussed this same
613A.5. There we said:
§
Monroe,
24,
v.
236 N.W.2d
35-37
in State
purpose
requirement
“The
of the notice
1975).
226
(Iowa
Blyth,
also State v.
important.
123.93 becomes
§
Some
1975);
250,
(Iowa
v.
261-262
State
N.W.2d
light
purpose
by
on that
can be shed
our
322,
Books,
(Iowa
325-326
pronouncements interpreting a somewhat
State,
575,
1975);
172
586
Frost v.
N.W.2d
statute,
613A.5,
analogous
The Code.
§
(Iowa 1969).
requires
It
a written notice to a munici-
cited,
pality
may
brought
before a tort suit
be
cases there
Prom these
other
purpose
question
legislative
the
is one of
it.
for the
613A.5
§
we learn
appears
legislature
provide
prompt
If it
the
would
notice is to
a method for
intent.
time, place
have enacted the statute even if
communication of the
and cir-
probably
injury
general
in order to accord
rule is
legislature
cumstances
that the
may
attach its own conditions to an
prospective
opportuni-
defendant
exercise of
rights granted.
Bennett v.
County,
Ida
ty
investigate
while the facts are
235-236;
Sprung
N.W.2d at
v. Rasmus-
Vogelmann, 213
Lunday
fresh.
sen,
“In
v. Harrison
et
We
Snethen
that
this rule imposes no
81, 87,
12, 13,
172 Iowa
152 N.W.
it is
undue hardship on those individuals since
‘Upon this proposition,
said:
immu-
they are
[the
indemnified in most
by
instances
nity
agents
employees
govern-
of
of
governmental
their
employer
mental
there is a lack of
subdivisions]
613A.8.
uniformity in the decisions of the various
point
We
out parenthetically this results
but,
country;
courts of this
after a care-
very
anomaly predicted in the dissent
underlying princi-
ful examination of the
Flynn
County
Lucas
Memorial Hospi-
ples
govern,
which should
this court has
tal,
We believe the wrong, too, trial court was Supervisors, in its conclusion the A individual defendants duty breach of that duty plaintiffs. owed no can occur The cases either upon negligent theory depends which that commission or omission. are also Wheth based on breached, er the immunity. duty so, was For and if example, in wheth Genkinger v. er it proximate Jefferson was a supra, injuries, cause of the N.W.2d at are court held the matters to be statutory determined at trial. The duty of a county engineer trial deciding maintain court erred in plaintiffs roads had in a safe “owing action, condition was not gener- to the stated a cause of and we reverse public al and not to portion certain individual of the order as to both Robert decedent, or this except as such individual is parents. general public.” In this situa- V. We unnecessary find it to discuss or tion, said, the court “the immunity of the decide several other issues raised since what County extends employee.” to the [Empha- we have already disposes said of the appeal. sis added.] VI. summary In we hold as follows: abrogation hold the govern 1. The ruling dismissing peti- Robert’s immunity mental means principles the same tion is reversed because liability apply employees officers and 613A.5 insofar as it limits right Robert’s *8 municipalities of as to other tort de to file days a late notice is unconstitu-
fendants, except expressly modified or purpose tional. For that he is entitled to 60 limited the provisions of Chapter 613A. days after incapacitation ended. The regard In that 613A.4(3) we take to mean period during incapacitated which he was is simply that there is no for the acts question a fact to be determined at trial. of an employee officer or unless there is negligence. This does not conflict with our 2. While Robert did not file a notice holding here. county, with the filing petition of his REYNOLDSON, (concurring Justice compliance spe- substantial constitutes peti- cially). if the of 613A.5 requirement days after filed within tion was I concur in divisions II and of IV incapacity. termination majority opinion. I would reach a different result on the issues treated in divisions I dismissing petition ruling 3. The III, my for for reasons stated in against Lee dissents parents Robert’s Perry Community Shearer Sch. filed in required by give the notice failure Dist., (Iowa 1975) is affirmed. 613A.5 Vogelmann, Lunday v. dismissing ruling 4. The (Iowa 1973). parents and his both reversed. defendants is individual PART, AFFIRMED IN IN
REVERSED
PART, AND REMANDED. REYNOLD- except Justices concur
All J., specially.
SON, who concurs