Allen v. Greyhound Lines, Inc., 79-4698

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation656 F.2d 418
Docket NumberNo. 79-4698,79-4698
PartiesEnid ALLEN, Plaintiff-Appellant, v. GREYHOUND LINES, INC., a California corporation, Defendant-Appellee.
Decision Date03 September 1981

W. William Leaphart, Helena, Mont., for plaintiff-appellant.

Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena, Mont., for defendant-appellee.

Appeal from the United States District Court for the District of Montana.

Before GOODWIN and KENNEDY, Circuit Judges, and WATERS, * District Judge.

KENNEDY, Circuit Judge:

This appeal presents two issues pertaining to the construction of a saving clause in Montana's statute of limitations. Neither issue has been addressed by any Montana court. The threshold question for decision is whether the saving statute an ameliorative rule that tolls the limitation period for up to one year under certain circumstances applies to those actions commenced outside the State of Montana. We must further determine whether Montana's statute of limitations is incorporated in the proviso to the saving statute and therefore governs the time period within which the original action must be filed. Having resolved both questions in the affirmative, we reverse and remand.

Enid Allen, appellant, was injured on January 27, 1974, while a passenger on a Greyhound bus that was involved in an accident near Pocatello, Idaho. On June 2, 1976, over two years later, she filed suit against Greyhound Lines, Inc. (Greyhound) in a Utah state court. The Utah court determined that, although Allen had resided in Utah for a number of years, her domicile both before and after the accident was Montana. Accordingly, the court refused to apply Utah law (with its concomitant three year statute of limitations), instead opting for the law of Idaho, the state where the accident occurred. Idaho has a two year limitation period for personal injury actions. The state trial court therefore granted Greyhound's motion for summary judgment, holding Allen's suit barred under the Idaho statute of limitations. The judgment was affirmed on appeal by a divided Utah Supreme Court. Allen v. Greyhound Lines, Inc., 583 P.2d 613 (Utah 1978).

Allen then filed this action in the federal district court of Montana on December 4, 1978, nearly five years after the accident. Greyhound moved for dismissal, arguing the claim was barred under Montana's three year statute of limitations. Mont.Rev.Codes Ann. § 27-2-204(1) (1978). Allen contends that, because the Utah action was filed within Montana's three year limitation period, her action was saved by the Montana saving statute, Mont.Rev.Codes Ann. § 27-2-407 (1978). That statute provides:

If an action is commenced within the time limited therefor and a judgment therein is reversed on appeal without awarding a new trial or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff or, if he dies and the cause of action survives, his representative may commence a new action for the same cause after the expiration of the time so limited and within 1 year after such a reversal or termination.

Id.

Greyhound counters with two arguments. First, it claims the Montana saving statute covers only those actions filed originally in Montana. Second, it argues that even if the statute applies to actions filed outside the state, those actions must be timely filed under the applicable statute of limitations. Because the Utah suit was barred by the two year Idaho statute of limitations, Greyhound argues the Montana saving statute cannot save Allen's subsequent action.

The district court 476 F.Supp. 244, agreed with Greyhound and granted the dismissal. Finding the saving statute inapplicable to Allen, the lower court rested its decision solely on Greyhound's first contention that the statute covers only those actions commenced in Montana and thus found it unnecessary to address the second issue. This appeal followed.

The first issue confronting us is whether the Montana saving statute applies to actions commenced in a foreign state. Other states with saving statutes are divided over this question: the majority hold their saving statutes inapplicable when the prior action was initiated in another state, see, e. g., Andrew v. Bendix Corp., 452 F.2d 961 (6th Cir. 1971) (Ohio law), cert. denied, 406 U.S. 920, 92 S.Ct. 1773, 32 L.Ed.2d 119 (1972); Riley v. Union Pac. R.R., 182 F.2d 765 (10th Cir. 1950) (Wyoming law); Sigler v. Youngblood Truck Lines, Inc., 149 F.Supp. 61 (E.D.Tenn.1957) (Tennessee law); Sorensen v. The Overland Corp., 142 F.Supp. 354 (D.Del.1956) (Delaware law), aff'd on other grounds, 242 F.2d 70 (3d Cir. 1957); High v. Broadnax, 271 N.C. 313, 156 S.E.2d 282 (1967) (North Carolina law); Morris v. Wise, 293 P.2d 547 (Okla.1955) (Oklahoma law); but a significant and growing minority adopt the more liberal interpretation, see, e. g., Stare v. Pearcy, 617 F.2d 43 (4th Cir. 1980) (Haynsworth, J.) (West Virginia law); Abele v. A.L. Dougherty Overseas, Inc., 192 F.Supp. 955 (N.D.Ind.1961) (Indiana law); McCrary v. United States Fidelity & Guar. Co., 110 F.Supp. 545 (W.D.S.C.1953) (Arkansas law); Leavy v. Saunders, 319 A.2d 44 (Del.Super.Ct.1974) (Delaware law); Caldwell v. Harding, 4 F.Cas. 1036 (C.D.Mass.1869) (No. 2302) (Massachusetts law). Absent Montana authority on the point, we must determine how the Montana Supreme Court would resolve the issue. 1

In so proceeding, we are not unmindful of the rule that interpretations of state law by the district judge who sits in that state are entitled to deference. See Bishop v. Wood, 426 U.S. 341, 345-47, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976); Major v. Arizona State Prison, 642 F.2d 311, 313 (9th Cir. 1981). As discussed below, however, this principle of law has limited force and utility here, since most of the law analyzed by the Montana judge was that of California.

We turn first to legislative history. In arguing for a liberal construction of the Montana saving statute, appellant cites the California saving statute and its judicial interpretations, claiming that the history behind the enactment of the Montana statute indicates it was patterned after the California law. Appellees do not dispute this point; and the district court appeared to accept the premise in its opinion, for it relied on California law. In the statutory compilations of Montana law, moreover, the "History" annotation to the Montana saving statute specifically adverts to the California provision. It is reasonable to assume that the Montana courts would draw upon the law of California in interpreting its statute.

In California, the courts have construed their state saving statute to include within it those actions commenced in another state that have been reversed on appeal. Schneider v. Schimmels, 256 Cal.App.2d 366, 64 Cal.Rptr. 273 (1968); Nichols v. Canoga Indus., 83 Cal.App.3d 956, 148 Cal.Rptr. 459 (1978) (dictum). Appellee acknowledges that the Schneider opinion squarely held that the California saving statute applies to suits filed outside the state, but contends that the subsequent California Supreme Court decision in Wood v. Elling Corp., 20 Cal.3d 353, 572 P.2d 755, 142 Cal.Rptr. 696, (1977), significantly limited its scope. The district court below likewise relied on Wood in ruling for appellees. As the following analysis indicates, however, the holding of Schneider pertaining to the interstate application of the saving statute is not undermined by the Wood decision.

Under the California saving statute, the limitation period is tolled only when the prior suit resulted in a judgment for the plaintiff that has been reversed on appeal. Cal.Civ.Proc.Code § 355 (West 1954). In Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 154 P.2d 399 (1944), the California Supreme Court ruled that the saving statute applied where the plaintiff was nonsuited in its first action for filing prematurely, even though this did not fit within section 355's literal terms of "a judgment ... for the plaintiff ... reversed on appeal." The first suit in Bollinger was not filed outside California, nor did the opinion in dictum discuss the applicability of the saving statute to a prior action initiated in another state.

Over thirty years later, the California Supreme Court in Wood v. Elling Corp., 20 Cal.3d 353, 572 P.2d 755, 142 Cal.Rptr. 696 (1977) limited Bollinger to its facts, holding that the California saving statute only applied where a judgment for the plaintiff had been reversed on appeal or where, as in Bollinger, (1) the trial court erroneously granted a nonsuit, (2) the defendant employed dilatory tactics to prevent disposition of the first action so as to permit timely filing of a second action, and (3) the plaintiff was diligent in pursuing his remedy. Id. at 361-62, 572 P.2d at 759. The court thus made it clear that to avoid the literal language of the statute, the plaintiff must demonstrate the existence of those three factors present in Bollinger.

In a footnote to the Wood decision, the court ruled that Schneider was disapproved to the extent it was inconsistent with its holding. Id. at 362 n.7, 572 P.2d at 760 n.7. In Schneider, the plaintiff filed a personal injury action in Colorado which was first dismissed because the complaint had not been filed within ten days of serving the summons and was later dismissed because there was no personal jurisdiction over the defendant. Plaintiff then refiled an action in a California superior court beyond the one year statute of limitations, but the court held the action saved by the California saving statute even though the first action was commenced outside the state. Schneider is thus inconsistent with the holding in Wood to the extent that it went beyond the literal terms of the "judgment ... for the plaintiff ... reversed on...

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