Allen v. Greyhound Lines, Inc., Cv-78-76-Bu.
| Decision Date | 05 September 1979 |
| Docket Number | No. Cv-78-76-Bu.,Cv-78-76-Bu. |
| Parties | Enid ALLEN, Plaintiff, v. GREYHOUND LINES, INC., a California Corporation, Defendant. |
| Court | U.S. District Court — District of Montana |
W. William Leaphart, of Leaphart Law Firm, Helena, Mont., and Richards & Mecham, Ogden, Utah, for plaintiff.
Ronald F. Waterman, of Gough, Shanahan, Johnson & Waterman, Helena, Mont., for defendant.
On January 27, 1974, plaintiff was a passenger on one of the defendant's buses when it was involved in an accident near Pocatello, Idaho. On June 2, 1976, more than two years later, plaintiff filed an action in Utah to recover for injuries allegedly sustained in the accident. The Utah court found that the plaintiff, although owning a residence in Utah in which she had resided for a number of years, had become domiciled in Montana prior to the accident and was still so domiciled at the time the action was filed. This precluded plaintiff from availing herself of the three year statute of limitations available to Utah citizens. Accordingly the Utah court "borrowed" the two year statute of limitations of Idaho, the state of the occurrence, and granted summary judgment to the defendant on the grounds that the action was barred thereby. The Utah court's findings were sustained on appeal at Allen v. Greyhound Lines, Inc., 583 P.2d 613 (Utah 1978).
The instant action was filed December 4, 1978. Defendant has moved for a dismissal on the grounds that the action is barred by the three year Montana statute of limitations, MCA § 27-2-204(1) (1978). Plaintiff argues that the Utah action was filed within the three year Montana limitation and thus "saved" by the Montana savings statute, MCA § 27-2-407 (1978), which reads:
If an action is commenced within the time limited therefor and a judgment rendered therein is reversed on appeal without awarding a new trial or the action is terminated in any other manner than a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits, the plaintiff . . . may commence a new action for the same cause after the expiration of the time so limited and within one year after such reversal or termination.
Thus the issue to be resolved here is whether the Montana savings statute applies to an action which was originally filed in another state, within the Montana statute of limitations, but outside the statute of limitations of the state wherein the action was filed.
As can be seen, the issue has two steps: Does the Montana savings statute have any application to an action filed in another state at all? If it does, which statute of limitations applies?
Insofar as the first step is concerned, the weight of authority is that the savings statute of the forum state has no application to an action which has been nonsuited in another state. See, Annot., 55 A.L.R. 1038 (1957), and cases cited therein.
Plaintiff relies on Schneider v. Schimmels, 256 Cal.App.2d 366, 64 Cal.Rptr. 273 (Ct.App.1967), in which it was held that the California savings statute did operate to save an action from the statute of limitations bar where the initial action had been filed in Colorado. This holding was based on the policy underlying the California savings statute, as announced in Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 154 P.2d 399 (1944), of assuring a diligent plaintiff a determination of his claim on the merits where he has timely filed his original action. 256 Cal.App.2d at 371, 64 Cal.Rptr. 273.
However, the court in a later case clarified the holding in Bollinger by noting that ". . . decisions of this court have made it clear that the concurrence of the three factors present in Bollinger is essential to an application of the rule stated therein". Those factors are: (1) the trial court erroneously granted the nonsuit, (2) dilatory tactics by the defendant prevented the disposition of the first action so as to allow a timely filing of the second action, (3) diligence on the part...
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Allen v. Greyhound Lines, Inc.
...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 so......
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