Boyle v. Burt, 53860

• Citation: 179 N.W.2d 513
• Decision Date: 02 September 1970
• Docket Number: No. 53860,53860
• Parties: Daniel W. BOYLE, Administrator of the Estate of James E. Vanek, Deceased, Plaintiff, v. Barry O. BURT and Gregory W. Burt, Defendants-Appellees, v. IOWA CITY, Iowa, a Municipal Corporation, Additional Defendant-Appellant.
• Court: United States State Supreme Court of Iowa

Page 513

179 N.W.2d 513 Daniel W. BOYLE, Administrator of the Estate of James E. Vanek, Deceased, Plaintiff,
v.
Barry O. BURT and Gregory W. Burt, Defendants-Appellees,
v.
IOWA CITY, Iowa, a Municipal Corporation, Additional Defendant-Appellant. No. 53860. Supreme Court of Iowa. Sept. 2, 1970.
Rehearing Denied Oct. 12, 1970.

Jay H. Honohan, Iowa City, for additional defendant-appellant.

E. H. Wadsworth, of Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, William L. Meardon, Iowa City, and Davis, Huebner, Johnson & Burt, Des Moines, for defendants-appellees.

Shulman, Phelan, Tucker, Boyle & Mullen, Iowa City, for plaintiff.

RAWLINGS, Justice.

Plaintiff administrator brought action at law against defendants Burt for damages resulting from automobile accident death of his decedent. The Burts impleaded and by cross-petition seek contribution or indemnity from additional defendant, The City of Iowa City. By motion to dismiss,

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defendant City asserted right of redress sought by defendants Burt is barred because no claim notice was given the municipality within 60 days after the accident as required by section 613A.5, Iowa Code Annotated. Trial court overruled this motion. Defendant City takes permissive interlocutory appeal. We reverse.

This case was commenced September 6, 1968. Plaintiff's petition alleges his decedent, while crossing a street in Iowa City, May 23, 1968, was struck and killed by an automobile negligently driven by defendant Gregory W. Burt, then owned by co-defendant Barry O. Burt.

November 5, 1968, or more than five months after the fatal accident, a claim notice was given by defendants Burt to The City of Iowa City. No such notice was ever given by decedent, or anyone acting in his behalf.

By cross-petition filed December 9, 1968, the Burts sought contribution or indemnity from the impleaded defendant City.

There followed the aforesaid motion to dismiss by which the City, in effect, contends that absent a timely claim notice it could not be held responsible to plaintiff directly, and by the same token cannot be liable to defendants Burt for contribution or indemnity.

In overruling this motion, trial court held the giving of a claim notice to additional defendant City by defendants Burt, within 60 days after service of original notice upon them relative to plaintiff's action, satisfied the requirements of section 613A.5, I. C.A.

Defendant City here claims, trial court erred in so holding.

The question presented has never before been considered by this court.

I. At the outset we are called upon, for the first time, to consider chapter 613A, I.C.A., more specifically, section 613A.5.

Its predecessor, section 614.1, Code, 1966, was amended by the Sixty-Second General Assembly by striking subsection 1 thereof which provided, as to the time within which an action could be brought: 'Those founded on injury to the person on account of defective roads, bridges, streets, or sidewalks, within three months, unless written notice specifying the time, place, and circumstances of the injury shall have been served upon the county or municipal corporation to be charged within sixty days from the happening of the injury.'

The succeeding enactment, effective January 1, 1968, thus here applicable, states: 'Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 (against a municipality) shall commence an action therefor within three (3) months, unless said person shall cause to be presented to the governing body of the municipality within (60) days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within fifteen (15) days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two (2) years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety (90) days, during which the person injured is incapacitated by his injury from giving such notice.'

It is at once evident the old statute and the new one, though similar as to purpose, differ in some material respects.

When section 613A.5, last above quoted, is considered in the light of all other provisions in chapter 613A, relating to

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tort liability of governmental subdivisions, it is apparent we are not here dealing with a true limitations act.

That is made clear by this statement in Secrest v. Galloway Co., 239 Iowa 168, 173, 30 N.W.2d 793, 796: "* * * The legislature, having the power to create the right, may affix the conditions under which it is to be enforced, and a compliance with those conditions is essential. * * * It is the right to claim benefits under the act that is lost after the lapse of two years (citing Tischer v. City of Council Bluffs, 231 Iowa 1134, 3 N.W.2d 166).'

'Strictly speaking, a statute of limitation affects the remedy not the right. A general limitation statute is defined in 34 Am.Jur., Limitation of Action, Sec. 3, to be '* * * the action of the state in determining that after a lapse of a specified time a claim shall not be enforceable in a judicial proceeding.' 37 C.J. 686, par. 5, states:

"A wide distinction exists between pure statutes of limitation and special statutory limitations qualifying a given right. In the latter instance time is made an essence of the right created, and the limitation is an inherent part of the statute, or agreement out of which the right in question arises, so that there is no right of action whatever independent of the limitation. A lapse of a statutory period operates, therefore to extinguish the right altogether." (Emphasis supplied). See also 34 Am.Jur., Limitation of Actions, section 7, page 16.

Briefly stated, section 613A.5 qualifies a right given by other related provisions of the Act. Thus In re Lunt's Trust, 237 Iowa 1097, 24 N.W.2d 467, determined on the basis of a pure limitation act is neither applicable nor controlling.

On the other hand, this court held in Halvorson v. City of Decorah, 258 Iowa 314, 322, 138 N.W.2d 856, section 614.1(1) was mandatory, with substantial compliance being required. We are satisfied that standard is equally applicable to section 613A.5, quoted above.

II. Furthermore, this court has never before had occasion to determine whether a tort-feasor may have benefit of contribution or indemnity as against a municipality, absent the giving of a claim notice within 60 days from date of an injury attendant accident.

We have, however, repeatedly dealt with equitable rights of contribution or indemnity. As stated in Federated Mutual Imp. & Hardware Ins. Co. v. Dunkelberger, Iowa, 172 N.W.2d 137, 142: '* * * the difference between 'contribution' and 'indemnity', briefly stated, is that the former indicates liability for loss occasioned by a tort is shared by those responsible for it. 'Indemnity' indicates the entire liability for loss is shifted from one person held legally responsible to another person. Article, supra, in 37 Iowa Law Review 517; Article by Professor Dale B. Furnish on 'Distributing Tort Liability: Contribution and Indemnity in Iowa', 52 Iowa Law Review 31, 33; 41 Am.Jur., 2d, Indemnity, section 3.' See also Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, opinion filed May 5, 1970; Iowa Power & Light Co. v. Abild Constr. Co., 259 Iowa 314, 318--325, 144 N.W.2d 303; 18 Am.Jur.2d, Contribution, section 46, page 65; 41 Am.Jur.2d, Indemnity, section 20, page 706; and Prosser on Torts, Single Volume, pages 273--281.

Noticeably no issue is here raised, nor do we reach or determine, right of recourse against governmental subdivisions for contribution or indemnity where a timely and adequate claim notice has been given.

III. It must be at once admitted, appellate tribunals in other jurisdictions have differed widely as to the right of action against a municipal entity for contribution or indemnity where failure to give a statutorily required notice of claim is involved.

Some have held such recourse is not thereby obstructed. Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond Du Lac (7 Cir.), 297 F.2d 583, 93 A.L.R.2d 1378; Royal Car Wash Co. v. Mayor and Council

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of Wilmington, Del., 240 A.2d 144; Valstrey Service Corp. v. Board of Elections, 2 N.Y.2d 413, 161 N.Y.S.2d 52, 141 N.E.2d 565, and Ainsworth v. Berg, 253 Wis. 438, 34 N.W.2d 790, 35 N.W.2d 911.

The holding in most of these cases is apparently premised, in large part, upon the theory that legislative acts dealing with the subject here concerned apply only to primary claimants or those first injured.

Other courts have take the position that under such circumstances there may be no recovery over. Morgan v. McDermott, 382 Mich. 333, 169 N.W.2d 897, and American Auto Ins. Co. v. City of Minneapolis, 259 Minn. 294, 107 N.W.2d 320. See also Bituminous Cas. Corp. v. City of Evansville (7 Cir.), 191 F.2d 572, 573--574, and White v. Johnson, 272 Minn. 363, 137 N.W.2d 674.

For reasons set forth, infra, we are satisfied the application of this rule is unavoidable under our existing law.

IV. As heretofore disclosed, substantial compliance with the requirements of section 613A.5 is mandatory.

Next, this court adopted the commonly accepted position in Heck v. City of Knoxville, 249 Iowa 602, 607, 88 N.W.2d 58, that the statutorily required claim notice provides a method by which prompt information as to time, place and circumstances of injury, may be...