Streib v. Veigel

BAKES, Justice,

dissenting:

I dissent. The majority of this Court continues to ignore the clear language of I.C. § 5-219(4) which states that in a professional malpractice action with a two-year statute of limitations, “the cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of, and the limitation period shall not be extended by reason of any continuing consequences or damages resulting therefrom____” The majority’s extended discussion of cases from other jurisdictions is totally irrelevant since none of those jurisdictions have a statute similar to I.C. § 5-219(4). Those cases merely set out the common law on accrual “in the absence of a statute to the contrary.” Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967). In Idaho we have a statute contrary to the common law. Applying the statute to the present case, the plaintiffs complain of the negligent preparation of tax forms, and their complaint is barred by the two-year statute of limitations since it was not filed within two years of the negligent “act or omission complained of____”

The majority’s continued adherence to the common law completely ignores, disregards, and attaches no meaning to I.C. § 5-219(4), which has been duly enacted by the legislature and is binding upon this Court. See also Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984) (Bakes, J., dissenting); Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984) (Bakes, J., dissenting). “If we were dealing entirely with a common law rule, or even if we were dealing with I.C. § 5-219 as it existed at the time of Renner — i.e., prior to the 1971 amendment — the rule announced by the majority of the Court today might be a good rule. However, the legislature, by the 1971 amendment to I.C. § 5-219(4), has set the policy and this Court should not ignore it.” Blake v. Cruz, 108 Idaho at 270-71, 698 P.2d at 332-33 (Bakes, J., dissenting). Our prior decision in Morton v. Clements, 98 Idaho 906, 575 P.2d 885 (1978), regarding attorney malpractice, is inconsistent with today’s decision and is obviously impliedly overruled by today’s decision.