Charles Furnald v. Anthony Hughes and Emcasco Insurance Company ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0180
Filed September 30, 2011
CHARLES FURNALD,
Appellant,
vs.
ANTHONY HUGHES and
EMCASCO INSURANCE COMPANY,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Warren County, William H.
Joy, Judge.
On further review, plaintiff argues the district court and court of
appeals erred in holding that Iowa Code section 614.10 (2009) is
inapplicable when a plaintiff voluntarily dismisses an action without first
seeking a continuance or delay in the underlying action. AFFIRMED.
David A. Hirsch of Harding Law Office, Des Moines, for appellant.
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.
2
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.” Iowa Code § 614.10 (2009). In this case, the
plaintiff brought a personal injury action arising out of an automobile
accident. The plaintiff voluntarily dismissed the action eleven days prior
to trial in order to further develop expert testimony on the extent of
permanent injuries caused by the accident. The plaintiff then refiled the
action nearly two months later. The defendant sought to dismiss on the
ground that the plaintiff was not entitled to protection of the savings
statute. The district court granted summary judgment to the defendant,
holding Iowa’s savings statute inapplicable under the facts of the case.
The plaintiff appealed, the court of appeals affirmed, and we granted
further review.
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
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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 Iowa Code section 614.1(2). Hughes
then filed a motion for summary judgment based on the statute of
limitations defense. In the papers supporting the motion, Hughes
asserted that the savings clause of Iowa Code section 614.10 was not
available to Furnald because “negligence in prosecution was the sole
cause of the ‘failure’ of the prior lawsuit.”
Furnald resisted. He claimed that Iowa Code section 614.10
permits a unilateral, voluntary dismissal when the plaintiff’s medical
condition “continued to deteriorate” after the filing of the action. In
preparing for trial, Furnald’s counsel reviewed December 2008 medical
records in February 2009 and determined that additional medical
examinations were necessary to determine if future medicals should be
part of Furnald’s claim. Furnald’s counsel stated that, at the time of
dismissal, Furnald was undergoing additional medical workups to
determine the extent of injuries. Furnald notes that, while an August
2007 medical examination gave him a zero percent impairment rating, a
medical examination on April 29, 2009, indicated that he had an eight
percent whole person impairment as a result of the accident. The gist of
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Furnald’s position was that, because his physical condition was
deteriorating and the nature of his injuries evolving, he could voluntarily
dismiss his claim in order to better develop his damages claim. 1
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 Iowa R. App. P. 6.907; Travelers Indem. Co. v. D.J. Franzen, Inc.,
792 N.W.2d 242, 245 (Iowa 2010). Summary judgment is appropriate
when the moving party “affirmatively establish[es] the existence of
undisputed facts entitling that party to a particular result under
controlling law.” Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d
751, 756 (Iowa 1999). Although the burden is usually on the moving
party to show the absence of a material fact, Wright v. Am. Cyanamid Co.,
599 N.W.2d 668, 670 (Iowa 1999), we have held that the burden of
1Furnald does not claim that the statute of limitations should be tolled based
upon estoppel or any other equitable theory. See James M. Fischer, The Limits of
Statutes of Limitation, 16 Sw. U. L. Rev. 1, 8–14 (1986) (discussing tolling of statute of
limitations on equitable grounds).
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showing entitlement to relief under Iowa’s savings statute falls on the
plaintiff, Sautter v. Interstate Power Co., 563 N.W.2d 609, 610 (Iowa
1997).
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, 109 N.E. 594, 595 (N.Y. 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 Code § 1668 (1851) (statute nearly identical to Iowa
Code section 614.10 (2009)).
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, 356 S.W.2d 283, 285 (Tenn. 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
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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
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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, 259 S.W.3d 430, 434 (Ark. 2007) (holding
service must be attempted notwithstanding liberal interpretation of
statute); Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 653 N.E.2d 235, 240
(Ohio 1995) (stating party seeking to invoke savings statute must meet
statutory criteria notwithstanding liberal construction).
2. State savings statutes expressly addressing voluntary
dismissals. 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 Ga. Code Ann. § 9-2-61(a) (West, Westlaw
through 2011 Reg. Sess.); Tenn. Code Ann. § 28-1-105(a) (West, Westlaw
through 2011 1st Reg. Sess.); Va. Code Ann. § 8.01-229(E)(3) (West,
Westlaw through 2011 Reg. Sess. & 2011 Special Sess. I, ch. 1). In
contrast, savings statutes in Montana, New York, Oregon, Pennsylvania,
and Rhode Island do not apply to actions “voluntarily dismissed,” to
“voluntary discontinuance[s],” or to “voluntary nonsuits.” See Mont.
Code Ann. § 27-2-407 (Westlaw through 2011 laws effective through
July 1, 2011 & 2010 ballot measures); N.Y. C.P.L.R. § 205(a) (McKinney,
Westlaw through L.2011, ch. 1–54, 58, 63–96, 98–108); Or. Rev. Stat.
Ann. § 12.220(1) (West, Westlaw through 2011 Reg. Sess., ch. 733); 42
Pa. Cons. Stat. Ann. § 5535(a)(2)(ii) (West, Westlaw through 2011 Acts 1–
8
75); R.I. Gen. Laws Ann. § 9-1-22 (West, Westlaw through 2010 Sess.,
ch. 321). Finally, there are statutes that allow plaintiffs who voluntarily
dismiss claims to seek the benefit of savings statutes under certain
circumstances. For example, while the Nebraska savings statute
generally does not allow voluntary dismissals to obtain the benefit of the
statute, the legislature has expressly provided for an exception for cases
voluntarily dismissed as the result of a loss of diversity in federal court.
See Neb. Rev. Stat. Ann. § 25-201.01(2) (West, Westlaw through 2010 2d
Reg. Sess.); see also Ariz. Rev. Stat. Ann. § 12-504(A) (West, Westlaw
through 1st Reg. Sess. & 3d Special Sess. of the Fiftieth Legislature)
(applying to actions voluntarily dismissed by court order). These
statutes, which expressly address the issue of voluntary dismissals,
demonstrate that the question of the relationship between savings
statutes and voluntary dismissals has drawn considerable state
legislative attention.
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,
103 N.E. 672, 673–74 (Ind. App. 1913). The rationale in Good was that,
in order for a claim to “fail,” it must be defeated by a source other than
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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., 19 A. 113, 114–15 (R.I. 1889) (voluntary abandonment not
an action “abated,” “avoided,” or “defeated”); Hayes v. Stewart, 23 Vt. 622(1851) (voluntary dismissal not an action “otherwise defeated or avoided
. . . for any matter of form”).
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, 58 A.2d 5, 8–9 (Conn. 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, 9 A.2d
38, 40–41 (R.I. 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, 115 P. 1117, 1117 (Okla. 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.
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Graham, 147 P.3d 859, 868 (Kan. 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., 34 N.E. 331, 332 (Ohio 1893). Ohio courts followed the Siegfried
approach until 1982. See, e.g., Beckner v. Stover, 247 N.E.2d 300, 302–
03 (Ohio 1969); Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 167 N.E.2d
774, 777 (Ohio 1960).
In 1982, the Ohio Supreme Court reversed course. In Chadwick v.
Barba Lou, Inc., 431 N.E.2d 660, 663–64 (Ohio 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
11
statute. 2 See U.C.C. § 2-725(3), 1C U.L.A. 566 (2004). Iowa has adopted
this provision. See Iowa Code § 554.2725(3). Under the UCC provision,
voluntary discontinuance of the underlying action and dismissal for
failure to prosecute are not bases for extending the ordinarily applicable
UCC statute of limitations. U.C.C. § 2-725(3). This does not mean,
however, that the savings clause in the UCC has no meaning. For
instance, the UCC cases indicate that when an underlying action is
dismissed for failure to join an indispensible party, or when an action is
dismissed for improper venue, the savings provisions of the UCC may be
applicable. D. & J. Leasing, Inc. v. Hercules Galion Prods., Inc., 429
S.W.2d 854, 856–57 (Ky. 1968) (improper venue); Hiles Co. v. Johnston
Pump Co. of Pasadena, Cal., 560 P.2d 154, 156 (Nev. 1977) (indispensible
party). The UCC provision is limited to breach of contract actions for the
sale of goods, however, and does not generally apply in personal injury
actions.
D. Iowa Law Regarding Voluntary Dismissals Under Savings
Statute. We begin with the actual words of the Iowa savings statute.
Iowa Code section 614.10 provides:
If, after the commencement of an action, the plaintiff,
for any cause except negligence in its prosecution, fails
therein, and a new one is brought within six months
thereafter, the second shall, for the purposes herein
contemplated, be held a continuation of the first.
2UCC 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.
U.C.C. § 2-725(3), 1C U.L.A. 566 (2004).
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Iowa Code § 614.10. The statute itself does not expressly consider the
consequence of voluntary dismissals. At the same time, however, the
statute is not open-ended like some other states. It is expressly limited
to situations where a case “fails” without “negligence in its prosecution.”
See id.
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.
13
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. Specifically, the Archer court
stated that “it is possible” that a plaintiff might not be ready to try a case
due to no negligence on his part and yet “be unable to obtain a
continuance.” Id. at 612, 22 N.W. at 894–95. But the Archer court then
asked this question: “[S]uppose the plaintiff voluntarily dismisses the
action, for any reason, but not under any compulsion whatever, can it be
said that he has failed in the action?” Id. at 613, 22 N.W. at 895. The
Archer court stated that if the plaintiff failed to prepare his case and
dismissed it for that reason, he would clearly be negligent. Id. Applying
these principles, the Archer court held that dismissal because the
attorney believed his client would not receive a fair trial in federal court
was an insufficient ground to come within the statute. Id.
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.
14
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,
15
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 trial, which
the trial court denied. Id. At this point, the plaintiff’s attorney advised
the judge that he would be forced to dismiss the case. Id. at 500, 265
N.W. at 610.
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.
16
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 Iowa Code
§ 616.20. Although venue was no longer proper, the court held that the
plaintiffs were entitled to the benefit of the savings statute because they
were not negligent in settling their claims against the corporate
defendants. Tull, 469 N.W.2d at 687.
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
17
“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 have been to require the plaintiff to suffer an
adverse judgment, which would allow an appeal of the district court’s
decision denying a delay and continuance, rather than allowing the
plaintiff to invoke the savings statute. Id. at 308.
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.
18
In Klingensmith, we held a dismissal under Iowa Rule of Civil
Procedure 215.1 for failure to prosecute a case amounted to “negligence”
in prosecution, but we did not suggest that we were abandoning the
compulsion requirement of Archer, Pardey, and Ceprley. See
Klingensmith, 256 Iowa at 369–70, 127 N.W.2d at 657. Similarly, in
Wilson v. Wright, 189 N.W.2d 531, 534 (Iowa 1971), we held that an
attorney who failed to comply with certain technical pleading
requirements was not negligent when his action was involuntarily
dismissed. In Wilson, the compulsion requirement was plainly satisfied
by the involuntary dismissal. See Wilson, 189 N.W.2d at 534. Finally, in
Tull, we held that plaintiffs who voluntarily dismissed corporate
defendants in a multiparty action could obtain the benefit of the savings
statute when the dismissal of the corporate defendants, as a matter of
law, made venue improper with respect to the remaining defendant. Tull,
469 N.W.2d at 687. The dismissal in Tull was compelled in the sense
that the court’s holding, which concluded improper venue required
dismissal under Iowa Code section 616.20, precluded the plaintiffs from
proceeding against the remaining defendant in the original claim. See id.
None of these cases abandons the compulsion requirement under Archer,
Pardey, and Ceprley.
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 Iowa R.
Civ. P. 1.911(1) (allowing a continuance “for any cause not growing out of
19
the fault or negligence of the movant, which satisfies the court that
substantial justice will be more nearly obtained”). But Furnald did not
follow this course. Instead, Furnald made a strategic choice to forgo
seeking a continuance or delay in the underlying action and took matters
into his own hands. Such strategic choices, however, are not the kind of
compulsion which awakens our savings statute under Archer, Pardey,
and Ceprley. If Furnald is to prevail in this case, we must abandon our
past precedents and adopt a new interpretation of the savings statute.
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 midtrial
voluntary dismissals without prejudice and repetitive dismissal and
refiling of claims—are not generally allowed under today’s rules. See,
e.g., Iowa R. Civ. P. 1.943 (permitting voluntary dismissal up until ten
days before trial and providing that a second voluntary dismissal
constitutes an adjudication on the merits unless the court orders
otherwise in the interests of justice). Nonetheless, the creation of these
additional controls on the trial process do not cover all potential
situations and do not provide a firm basis for departing from the
established interpretation of our savings statute. The enactment of
additional tools of trial management that may tend to mitigate or even
eliminate some potential abuses does not accomplish an indirect
amendment of the savings statute.
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
20
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.
21
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 designed to protect plaintiffs only from getting ensnared in
fatal technical procedural problems that cannot be avoided through due
diligence in the underlying litigation is not illogical or otherwise odd. The
approach has been followed in a number of states by statute or by
judicial decision, is consistent with the approach of the Uniform
Commercial Code, and has the support of a leading commentator on
savings statutes.
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.