Furnald v. Hughes

• Decision Date: 30 September 2011
• Docket Number: No. 10–0180.,10–0180.
• Citation: 804 N.W.2d 273
• Parties: Charles FURNALD, Appellant,v.Anthony HUGHES and Emcasco Insurance Company, Appellees.
• Court: Iowa Supreme Court

804 N.W.2d 273

Charles FURNALD, Appellant,
v.
Anthony HUGHES and Emcasco Insurance Company, Appellees.

No. 10–0180.

Supreme Court of Iowa.

Sept. 30, 2011.

[804 N.W.2d 274]

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.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 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

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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 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 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, 215 N.Y. 533, 109 N.E. 594, 595 (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

[804 N.W.2d 276]

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, 210 Tenn. 39, 356 S.W.2d 283, 285 (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 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 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, 370 Ark. 333, 259 S.W.3d 430, 434 (2007) (holding service must be attempted notwithstanding liberal interpretation of statute); Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St.3d 391, 653 N.E.2d 235, 240 (1995) (stating party seeking to invoke savings statute must meet statutory criteria notwithstanding liberal construction).

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2. State savings statutes expressly addressing voluntary dismissals. In a number of states, savings statutes directly address the issue of...