*1 L. DIANA WEBB, Appellant,
Plaintiff v.
T.D., D.C.; R.K.S., M.D.;
C.H.A., M.D.,
Respondents.
Defendants
No. 95-234.
Submitted on Briefs November
1995.
Rehearing
Denied March
1996.
February 20,
Decided
1996.
St.Rep.
117.
For Cebull, Cehull, Brown, Gerbase, Richard F. Respondents: For (for M.D.); R.K.S., Ross, Respondent Fulton, Billings & Harman Dietrich, Hanson, Toole & Lodders, Crowley, Haughey, L. Ronald M.D.). (for C.H.A., Respondent Billings of the Court. Opinion delivered the TRIEWEILER JUSTICE Medical filed a claim with the 9, 1991, Diana Webb September On C.H.A., R.K.S., radiologist. orthopedist, an against Panel decision, After the Panel rendered its Webb a timely against the two doctors in the District Court for the Thirteenth County. 2, 1993, Judicial District in Yellowstone On August Webb filed an with the application Chiropractic Legal against T.D. necessary and named R.K.S. and C.H.A. as and proper parties to the August action. On Webb dismissed the against district court action R.K.S. C.H.A. prejudice. without Legal Panel Chiropractic 16,1993. rendered its decision on November On December Webb filed a second in the Thir- teenth Judicial District Court all February 3, defendants. On 1995, the granted District Court R.KS.’s and C.H.A.’s motions for summary judgment on the ground was barred applicable statute ofrepose. appeals the District Court’s granted summary order which judgment. We reverse the District Court and remand for further proceedings. appeal:
There is one issue on Is Webb’s complaint barred set forth at MCA?
FACTUALBACKGROUND Diana Webb suffered a back during the course of her employment May 1986. accident, T.D., After her Webb consulted *3 chiropractor, her concerning symptoms. 1986, In October her em- ployer’s workers’ compensation R.K.S., insurer referred her to an orthopedist, 7, 1986, further evaluation. On October per- R.K.S. formed a clinical CT-scan, evaluation and ordered a which was read by C.H.A., radiologist. day, a The next R.K.S. wrote Webb a letter in which he stated that he had reviewed the CT-scan and it looked “excellent.” He assigned Webb a two percent impairment rating and her perform heavy released to work without restriction. while Webb working for a construction company in
California, she suffered a severe aggravation injury. of her earlier Afterward, August 22,1989, on again Webb consulted T.D. about her back condition. T.D. treated Webb until the end of 1989 without referring physician her to a January allegedly for evaluation. In husband, at the insistence of Webb’s T.D. referred toWebb Arturo Echeverri, neurologist. magnetic a Dr. Echeverri ordered resonance imaging spine, ofWebb’s which revealed “a massive herniation of the right L-5 disc on the side the S-l compressing nerve root as well as equina.” Neurosurgeon per- the rest of the cauda Maurice Smith laminotomy, damage formed a but Webb was left with residual nerve massively from the compression nerve root prolonged as a result 10, 1990, January disc. The MRI results fragmented herniated had a herniation. indication to Webb that she disc were the first 9,1991, legal panel application medical Webbfiled a September On C.H.A., alleged per- she that R.K.S. R.K.S. and in which naming and C.H.A. negligently examination negligent physical a formed 7,1986. The Medical Panel the CT-scan on October interpreted 16, 1992, within April on March 1992. On rendered its decision decision, complaint against Webb filed thirty days of the Panel Court in Yel- in the Thirteenth Judicial District and C.H.A. R.K.S. date, issued on that but were County. The summonses were lowstone never served. On 29, 1992, attorney airplane died in an crash. June Webb’s
On Shortly behalf. 29, 1993, attorney appeared on Webb’s a new June in the T.D. have been a defendant he decided that should thereafter appli- Webb filed an August Accordingly, action. original for review ofher treatment Chiropractic Legal cation with necessary proper parties R.K.S. and C.H.A. as by T.D. and named 3, 1993, Webb dismissed August the action. On to R.K.S. and C.H.A. without court action district rendered its decision on Legal Panel Chiropractic prejudice. in District Court 16,1993. complaint filed her second November thirty days of on December against all defendants Panel decision. Chiropractic Legal the motions for granted Court February the District On The court held that by R.K.S. and C.H.A. summary judgment filed failed when the defendants injury in October 1986 Webb’s occurred disc; had passed intervertebral six diagnose damaged her in district before Webb filed the date of five-year is barred court; that Webb’s 27-2-205, MCA. found at repose statute of §
DISCUSSION set by barred Is 27-2-205, MCA? at forth summary granting order a district court’s Court reviews
This *4 by the district originally criteria applied on the same based judgment 263-64, (1995), 272 Mont. County Bruner v. Yellowstone court. summary M.R.Civ.P., 56(c), provides 901, 903. Rule 900 P.2d any as to genuine no issue only when “there is proper is judgment
247 fact the moving party judgment material and ... is entitled to as a of matter law.” case, summary this the District granted judgment Court in favor
of R.K.S. and C.H.A. because it held that malpractice Webb’s claim five-year barred of repose 27-2-205, found at § (1985), MCA. Section MCA in effect at the time of Webb’s 1986, provides: in treatment injury physician
Action for or death or surgeon [or] ... chiropractor upon person’s professional ... based such alleged neg- ligence rendering professional or for services without consent or error in person’s practice, for or omission such shall be commenced years injury years 3 after the date or within of after the plaintiff through the diligence discovers or use of reasonable should have injury, last, discovered the whichever occurs may but in no case years such action be commenced the date injury. of However, any this time limitation shall be tolled period during act, such has person any error, failed to disclose or omission upon which such action is based which is known to or him through the use of diligence subsequent act, reasonable to said error, or omission would have been known to him. added).
(Emphasis that the five-year Webb contends set forth in 27-2-205, MCA, begin did not until to run 1989 because the of “date injury” was the date which she herniated bulging disc which respondents diagnose. failed Because she her 1993, she that it contends was filed well within the period. contend, and agreed, The defendants the District Court that Webb’s injury, of if there was an injury, date occurred on October allegedly when defendants failed to her true diagnose condition. injury” Webb further asserts that even if the “date of was in CT-scan, R.K.S. and allegedly when C.H.A. misread her the statute repose still not of would have run because the statute was tolled continuously time her original application from the she filed with issue, Based Medical Panel. on our resolution ofthis we decline issue, therefore, the first no to address draw conclusion about injury.” “date discovery contested, date has not been an issue in this case. that a requires malpractice
Section medical years “commenced” three from the be date within injury, three after the discovers but no later *5 years injury. 27-2-102(l)(b), from the date of the Section than five MCA, purposes relating that the to the “[flor states of statutes time an must be commenced... an action is within which action commenced (1985), provides filed.” complaint when the is Section MCA “ running period malpractice that the limitation in a applicable [t]he of upon receipt application claim is tolled the director the for days begin again panel’s until 30 after ... the [and] review ... does not 9, application September ....” Diana Webb filed her on final decision 1991, effectively running the of the limitation applicable and tolled months, days two the years, four eleven and after date of period alleged malpractice on October 1986. Her defendants’ began the April period commenced on before limitation to and within five the date defendants again, run rely injury.” the “date on as she complaint district court was still when
Webb’s named Chiropractic Legal her with the Panel which T.D. application necessary care and R.K.S. and C.H.A. as and subject provider, as the to The of limitations remained the action. proper parties Chiropractic Legal the of the throughout pendency tolled provides: which pursuant to decision (1) application by director, running an Upon receipt of is period malpractice in a claim tolled applicable of an limitation a to chiropractic party named as and as each physician to each as necessary or entity proper party or named for a person other arise of the factual might subsequently action that out court the application. set forth in circumstances (2) period malprac- in a applicable limitation running The again begin claim does not until: tice (a) dismissal, prejudice with days order of or without after an issued; refiling, or is against
(b) panel’s permanent final is entered in decision his copy upon complainant served panel files of the attorney. its decision on November Panel rendered Chiropractic Legal
The in which complaint in District Court she filed her second 1993. Webb than 13,1993, thirty fewer defendants on December named all three decision was rendered. days after the Panel’s limitations for the statute of agree both that parties In this before application ofher during pendency claim was tolled parties Panel, thirty days thereafter. the Medical in the the effect of Webb’s however, on disagree, 1992, and which was April was filed on Court, which District maintains that the 3, 1993. Webb August voluntarily dismissed limitations, and that the the statute of complaint tolled filing of the Webb further pending. while that suit was tolled statute remained did voluntary ofthe district court action her dismissal that maintains her claim tolling period, because nullifying effect of not have the respondents, forum. The pend in another continued was never served on a of a filing contend They further con- the statute of limitations. does not toll defendant of a claim M.R.Civ.R, refiling 41(e), prohibits tend that Rule has failed to serve a summons when the a defendant its dismissal. before *6 M.R.Civ.R, 41(e), provides: Rule commenced shall be further or hereafter action heretofore
No not in the action any appeared defendant who has as to prosecuted years within 3 provided action as herein in the or been served commenced, proceedings no further shall the action has been heretofore or hereafter commenced therein, and all actions had be shall have been by the in which the same court shall be dismissed any motion of motion, party or on the commenced, on its own complaint party as a or therein, named in whether interested year, within 1 or shall have been issued not, unless summons year one shall have been served issued within unless summons years 3 after the clerk of the court within filed with the has been made action, appearance or unless ofsaid commencement years. When therein within said 3 or defendants by the defendant action, in an the action been named defendant has more than one prosecuted further the trial court be the discretion of may within years, upon within 3 appeared has any defendant who year within 1 has been has been issued whom summons required. herein years the clerk within and filed with served 41(e) Rule Webb was pursuant contend that Respondents she failed to serve claim because refiling her prohibited it. voluntarily dismissed she before complaint her first on summons Service, (1995), Inc. Call, Answering Capital Inc. v. They cite First of that the dismissal proposition P.2d for the 425, 898 271 Mont. on principles based complaint her second bars complaint first respondents’ with disagree, We judicata. of res Call, the district court First In of First Call. characterization because prejudice without complaint plaintiff’s dismissed summons years, was not served within three as required by Rule 41(e), M.R.Civ.R heldWe that when a district court dismisses a complaint by because of failure to serve the summons years, within three may case, be refiled. In this however, the court did not complaint, dismiss the and Webb did not fail to serve her summons years within three from the date on which fact, she filed her complaint. the service of Webb’ssummons and complaint accomplished second was within three from the date 41(e) complaint on which was filed. First Call are, and Rule therefore, inapplicable to this case.
Wehold that the statute oflimitations and the statute by are action, tolled the commencement of an and that an action is complaint commenced when a 27-2-102(l)(b), filed. Section MCA. See also Rule M.R.Civ.RThis interpretation is consistent with the supported and is both Montana case law, See, jurisdictions. the case law of other e.g., Blasdel v. (1982), Montana Power Co. 196 Mont. 640 P.2d (holding “the statute of limitations was tolled when the first (N.M. filed”); King Lujan 1982), v. 1243, 1244 646 P.2d (holding “[fliling is commencement of the limitations”). action which generally applicable tolls the In this the statute oflimitations was tolled on April 16,1992, when Webb filed her with the District Court. The question voluntary is whether Webb’s dismissal of the suit without prejudice August 3,1993 day after she filed her chiropractic legal panel —one application the effect of nullifying prior tolling of the stat- —had previously Tietjen (1918), ute. We held in v. Heberlein 54 Mont. 171 P. that where an action is dismissed action, to the commencement of a second the first action does *7 not toll the statute of That limitations. decision was based on the predecessor statute,” of Montana’s “saving provides that if an action is commenced the applicable limitations, any is thereafter terminated “in by voluntary other manner than discontinuance,” plaintiff may commence a new action for the the expiration same cause after of the time so limited and within one year 27-2-407, after such a termination. Section (emphasis MCA added).
Tietjen dispositive tolling case, is not of the issue raised in this place, Tietjen however. In the first was neither a medical nor chiro- case, rather, practic malpractice brought but was an action to recover Furthermore, Tietjen the amount of a succession tax. was decided in Legal Medical Panel Act 1918, years prior to 1977 when the Montana enacted, Chiropractic to when the Montana prior enacted, respective tolling each Act with its Panel Act was Legal 27-12-701, MCA.The same true 27-6-702 and is provisions. Sections 27-2-407, MCA, originally which was enacted predecessor § in the 1870s. the statute nor our decision could have ac-
Accordingly, neither tolling provisions Tietjen of the Panel Acts. While counted for case, correctly “saving statute” to the facts at issue in that applied years later of legislature’s specific tolling provi- enactment given uniquely applicable chiropractic malpractice sions to medical and malpractice panels, cases before the we conclude that neither pending Tietjen, nor our decision in is based on controlling § Rather, 27-12-701, MCA, specifically the facts here. 27-6-702 and §§ tolling pending respective while a claim is before the provide given controlling and it is those statutes which must be effect panels, where, chiropractic malpractice in a medical or case as in the instant case, 27-2-205, both the implicate repose, MCA, the facts statute § tolling statutes. panel and the
Applying panel tolling compels that, statutes the conclusion chiropractic malpractice in a medical or if a plaintiff’s timely filed but complaint was is dismissed while the case malpractice panel proceedings is before a which name the necessary parties, 27-12-701, defendants as 27-2-702 and original §§ MCA, defendants, provide, originally as to those named a continuous the first and the tolling “bridge” subsequently between timely latter complaint, assuming filed filed under the Panel original Acts and names the defendants.
Furthermore,
“saving statute” does not
Montana’s
address
presents
itself in this case in which Webb’s cause of
situation
separate
action was tolled
action
the dismissal of the
before
the second action is filed
to dismissal of the
original suit. When
suit,
pend,
we hold that the commenced
continues to
original
jurisdiction
as the second forum has
over the action the
long
and so
tolled,
voluntary
after the
discon
oflimitations remains
even
con
Only
allowing
encouraging
the first action.
tinuance of
objectives
avoiding
actions in this manner can the
solidation of
(which
in both
unnecessary expense
recognized
are
duplication and
MCA,
27-6-702,
Act at
and the
Montana Medical
§
MCA)
accomplished.
Legal Panel Act at
be
Chiropractic
*8
A similar situation was
by
addressed
the Fourth Circuit Court of
(La.
Appeals
Levy Stelly
in Louisiana in
v.
App. 1973),
On contended the original state court limitations, action tolled the statute of that the sub- court, sequent suit federal filed while the first pending, case was timely. The plaintiff that, was also asserted because the statute of limitations remained tolled while the federal action was pending, by second state court action was not barred the statute oflimitations. defendants, however, maintained tolling period that the first had action, nullified the dismissal of the been first state court therefore, that the statute of run prior limitations had to the date on plaintiff which the filed the federal court suit. The defendants relied statute, La. Civ. Ann. provided: on a Louisiana Code art. If plaintiff having demand, in this made his abandons, voluntarily dismisses, prosecute trial, or fails to it at the [tolling of the statute of limitations] considered as never having happened. Appeals, however,
The Louisiana Court of
construed the statute to
apply only
plaintiff abandoned, voluntarily
to suits filed after a
dismissed,
prosecute
case;
or failed to
his
in the situation where a
abandonment,
prior
had filed a second suit
to that
the court
continuously
Levy,
held that
statute was
tolled.
lels our
of Montana’s
an
171 P.
where this Court held that when
action is
action,
the commencement of a second
the first
dismissed
Therefore,
did
toll the statute of limitations.
we conclude
Levy and its
are
reasoning
progeny
persua-
(La.
Alamo,
Service,
App. 1973),
Inc. v. Electronic
Inc.
Tug
sive. See
(La.
419;
1994),
2d
rev’d
App.
2d
v. Correa
640 So.
275 So.
Pfiffner
(La. 1994),
2d 1228.
grounds
other
643 So.
Levy’s holding
recently
also that
affirmed in the
We note
640 So. 2d
malpractice
Pfiffner,
medical
context
which the
Appeals
Circuit Court of
in Louisiana held that:
Fourth
was filed after the original
A second suit which
suit was dis
as never having
missed or abandoned is considered
been filed and
*9
contrary,
the
applicable.
is
To
second suit
prescription1
filed
original
the
suit was abandoned or dismissed interrupts
before
the
prescription.....If
second suit is
to abandonment
filed
suit,
interruption provided
suit continues
first
interruption
until the second suit is
and
continues
dismissed because the
suit is pending.
suit is
second
(citations
added).
omitted;
P.2d 481.
We conclude that based on the facts in this all of the objectives of the statute of repose have been accomplished. Webb’s original application was filed years within five from the date which respondents contend was her injury,” “date of therefore, the time period Legislature has deemed Upon reasonable. receipt of that application, panel director notified respondents of Webb’s claim. See application MCA. Webb’s § has been, date, at all times since that before a tribunal with authority claim, to entertain her and in a manner that tolled the repose. limitation and Webb’s summons and complaint were served within three from the date on which the original timely filed, complaint was respondents demonstrate no prejudice from the chronology of events. To require more would elevate form over substance.
We therefore hold that Webb commenced this action within five years from the date injury, required by 27-2-205, ofher MCA.We further hold that the statute of limitations was thereafter continu- tolled, ously that the District Court erred when it granted respondents’ summary judgment. motions for Because we *10 hold that Webb’s five-year not barred statute of repose MCA, found at § we reverse the District Court’s order and proceedings. remand for further NELSON,
JUSTICES HUNT and LEAPHART concur. GRAY,specially JUSTICE concurring.
I concur in the result the analysis Court reaches and in the and application of Montana law on which it relies to reach that I result. separately my disagreement write to note with that section of the Court’s opinion statutory discusses Louisiana and case law. I
Specifically, agree thatLeuy do not addresses a similar situation since, us, unlike the case before it involved a second suit filed before the first suit was abandoned. I find Nor do or reasoning Levy and progeny “persuasive.” its I will not here repeat cogent regarding general, discussion Court’s use ofLouisiana law in and Levy particular, set forth in Justice Erdmann’s dissent. Suffice it say that I with that agree discussion. my disagreement with the
Notwithstanding Levy inclusion of the opinion, join section in the Court’s I in the result the Court my properly analyzes reaches because it is view that the Court Montana applies reason, law to reach that result. For that it also is my Levy view that the Court’s discussion is dicta because it is unnecessary to the resolution us, ofthe issue before fully which is properly reached on the basis of Montana law.
JUSTICE ERDMANN dissenting. Court, reversing District the majority holds that Webb’s 13, 1993, complaint December for an which occurred on Octo ber was not majority time-barred.1 The allows Webb to “bridge” an untolled period of time and therefore nullifies the five- year statute repose. This “bridge” supported by is not either precedent Montana or relevant Montana Despite statutes. this lack oflegal support, “bridge” undoubtedly will good see a deal oftraffic to come as otherwise plaintiffs time-barred find it a useful detour. running
The of the applicable limitation period in a malpractice claim upon is tolled of an receipt application for review the director of the medical legal panel. Section 27-6-702, MCA. The statute does begin running again not thirty days until after the panel’s final decision. In the present the statute was tolled on September 9, 1991, when Webb filed her application for review with the medical legal panel years, months, eleven days two after her date —four injury. legal panel medical reached its final decision on March 18,1992. Thus, had nothing statute, tolled the the statute would have began running again April on and the have expired would therefore in mid-June 1992. claims, majority and the holds, so that when she filed her initial district court complaint April 16,1992, on the limitation period again tolled pending resolution of the complaint. Furthermore, majority holds that voluntary dismissal of the complaint August 3,1993, did nullify any tolling effect that the complaint majority had. The states that the was still pending on August 2, 1993, when Webb filed her application for review with the chiropractic legal panel and the again remained during tolled of that pendency majority action. The therefore determined that Webb’s second district court complaint, filed on December *11 thirty days after the chiropractic legal panel’s decision, final majority legal injury” assumes, 1. The reaches no conclusion as to the “date of but purposes opinion, for of the that the date of was 1986. 256 originally injured May By not time-barred. Webb was 1986.
constructing bridge, majority filing this has allowed the of a 13,1993, on December almost one and one-half complaint repose expired. “saving prior precedent, Under Montana’s statute” first failed to toll the statute oflimitations. The defendants were complaint they were April complaint served with the never legal on notice that Webbhad commenced action placed therefore not should not now be allowed to claim that the them. Webb by complaint. majority’s The simply filing was tolled (1982), 417, 640 v. Montana Power Co. 196 Mont. reliance on Blasdel tolled when the first proposition for the that the statute is P.2d filed, misleading. complaint In Blasdel the was in fact complaint is the complaint on the defendants and the issue was whether served amendments which subsequent the statute of limitations tolled original to the complaint. determined to relate back were initially tolling had the effect of Even if the tolling is clear that once it was dismissed its statute, Montana law (1918), Mont. Tietjen was nullified. In v. Heberlein effect “saving (presently Montana’s statute” codified interpreted P. we MCA) voluntarily an action is 27-2-407, and held that where at § action, of a second the first to the commencement prior discontinued Here, of limitations. does not toll the statute commencing her complaint prior April dismissed her Thus, the statute was not tolled action. December was time-barred. and her 1993 attempts when it to distin- majority apples oranges mixes to the enactment of that it was decided Tietjen stating guish respective Panel Acts and their Chiropractic Legal Medical and effect of a holding Tietjen tolling Our tolling provisions. nullified when it is later volun- filed first cause of action is properly we on the today. Tietjen vital While in relied tarily dismissed remains the Medical and Chiro- predated version may that a Acts, the relevant practic year original after the action is action within one a new commence by voluntary than discontinuance” any other manner terminated “in (Emphasis “saving of the statute.” in the current version remains added.) are such “[¡Judicial remedies 27-1-101, MCA, states that
Section officers ....” justice by judicial by the courts are administered into two classes— MCA, judicial remedies divides Section *12 the former as “an ordi- “special proceedings” defining “actions” and. — justice stating in a court of ...” and further nary proceeding remedy special proceeding.” is a There is no indication “[ejvery other “action” in intended the term legislature § brought Chiropractic under the Medical and proceedings to apply to just has done that. majority, Acts. The Legal Panel reliance on and Finally, majority’s adoption I with the of disagree extremely of Louisiana are compe- law. While the courts Louisiana statutes, interpreting Louisiana it must be construing tent in only that Louisiana is the state which does not follow remembered law, Napoleonic common but rather relies on the Code English the only interpretations. traditions and Not is the terminol- legal for its different, legal Louisiana’s entire tradition is different from ogy extremely reluctant to adopt Montana’s and we should be Louisiana controlling authority particularly in Montana. This is true case law as directly we have both Montana case law statutes which where address the issue under consideration. has relied on majority notes that this Court Louisiana case sixty-six support fewer than times since 1945 as for its reliance
law no authority Louisiana in this case. Since 1945 this Court has issued 10,500 opinions only over and its reliance on Louisiana law in .6 certainly rely ofthose cases reflects this Court’s reluctance to percent authority. on Louisiana 3519) (La. Code Ann. art.
The Louisiana statute Civ. cited the majority provides: having demand, in this made his
If the dismisses, trial, abandons, voluntarily prosecute or fails to it at the limitations] the is considered as never [tolling statute happened. majority’s plain supporting position,
Rather than saving ofthe Montana supports interpretation the statute our court, Levy v. Tietjen. Nevertheless, Stelly the Louisiana made in (La. 1973), 277 So.2d construed statute to hold that if App. suit, abandonment of the first prior suit is filed to the second case present the first suit continues. The facts of the tolling effect of Levy in that Webb did not file second suit distinguishable are Filing voluntarily dismissing complaint. her initial prior to legal panels is not chiropractic with the medical and applications majority’s and the filing complaints district court analogous Levy persuasive. the rationale in is not reliance on Five from October is October 1991. Giving credit for the period of time the statute was tolled while her claim under legal review the medical panel, five-year statute of repose expired in June 1992. In building this “continuous tolling bridge” majority has subverted the legislature’s intent in adopting for medical malpractice cases and provided a road to the courthouse which neither Montana statutes nor cases would allow. I would affirm the District Court’s that Webb’s determination 13, 1993, complaint by 27-2-205,
December was time-barred MCA. joins
CHIEF JUSTICE foregoing TURNAGE dissenting opinion.