Olsen v. Jones

• Decision Date: 03 July 1973
• Docket Number: Nos. 55568,55569,s. 55568
• Citation: 209 N.W.2d 64
• Parties: Janice OLSEN, a Minor by her father and next friend, Alton Olsen; and Alton Olsen, Individually, Plaintiffs, v. Stephen M. JONES and James G. Jones, Defendants and Cross-Petition Plaintiffs-Appellants, v. AUDUBON COUNTY, Cross-Petition Defendant-Appellee. Donald T. CHRISTENSEN, Administrator of the Estate of Alan Lee Christensen, Deceased, and Donald T. Christensen, Individually, Plaintiffs, v. Stephen M. JONES and James G. Jones, Defendants and Cross-Petition Plaintiffs-Appellants, v. AUDUBON COUNTY, Cross-Petition Defendant-Appellee.
• Court: Iowa Supreme Court

Page 64

209 N.W.2d 64

Janice OLSEN, a Minor by her father and next friend, Alton Olsen; and Alton Olsen, Individually, Plaintiffs, v. Stephen M. JONES and James G. Jones, Defendants and Cross-Petition Plaintiffs-Appellants, v. AUDUBON COUNTY, Cross-Petition Defendant-Appellee.

Donald T. CHRISTENSEN, Administrator of the Estate of Alan Lee Christensen, Deceased, and Donald T. Christensen, Individually, Plaintiffs, v. Stephen M. JONES and James G. Jones, Defendants and Cross-Petition Plaintiffs-Appellants, v. AUDUBON COUNTY, Cross-Petition Defendant-Appellee.

Nos. 55568, 55569.

Supreme Court of Iowa.

July 3, 1973.

Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, and Taylor & Taylor, Guthrie Center, for appellants.

Smith, Peterson, Beckman, Willson & Peterson, Council Bluffs, for appellee.

Heard en banc.

LeGRAND, Justice.

This appeal involves two consolidated cases which present identical questions of law concerning the effect of section 613A.5, The Code, on actions against a county for contribution.

The litigation arises out of an automobile accident which occurred on June 29, 1969. Alan Lee Christensen was the driver of a car in which Janice Olson was a passenger when it collided with one driven by the defendant Stephen M. Jones and owned by the defendant James G. Jones. Miss Olsen sustained serious injuries; Christensen died from his. The claims for her injuries and his death have been settled, and the plaintiffs are not parties to this appeal, which is concerned only with defendants' right of contribution from Audubon County.

Plaintiffs' actions were not started until more than a year after the accident occurred. Shortly after being sued, defendants filed a cross-petition in each case asking contribution from Audubon County, alleging negligence in the maintenance of the road where the accident occurred.

It is agreed notice of claim was not served on the county within the 60-day period specified in section 613A.5. The county alleges this is fatal to the cross-petitions while defendants claim no such notice was necessary under the statute. This is the sole issue before us.

The county filed a motion for summary judgment in each case on the ground defendants' failure to give the notice provided for in section 613A.5 was a bar to the action for contribution. The motions were sustained. We reverse and remand for further proceedings consistent herewith.

We had a preview of this matter in Boyle v. Burt, 179 N.W.2d 513 (Iowa 1970), where we were stalemated by a four-to-four vote. The effect of that equal division was to affirm the trial court's holding that the provisions of 613A.5 did not apply to actions for contribution--a result contrary to that reached by the trial court in the case now under consideration. Of course, the tie vote in Boyle v. Burt has no precedential value. See section 684.10, The Code. We, therefore, start anew in our consideration of this problem, which, although here for the second time, is, nevertheless, a case of first impression.

Our decision turns on an interpretation of the following portion of section 613A.5:

'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 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 sixty (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 * * *'

As already mentioned, it is conceded no such notice was given. Naturally, none would have been given by plaintiffs because they made no claim against the county. The question is whether defendants were required to give notice within 60 days, even though no suit was started against them until a year later, or else lose their right to contribution from the county.

A number of jurisdictions have considered this matter under statutes either identical with, or similar to, ours. Most of them have held the notice required by such statutes is limited to controversies between the principal parties only and has no reference to claims for either contribution or indemnity. Only Minnesota and Colorado hold otherwise. Hansen v. D.M. & I.R. Railway Company, 292 Minn. 503, 195 N.W.2d 814, 815 (1972); Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328, 331 (1972); cf. Bituminous Casualty Corp. v. City of Evansville, 191 F.2d 572 (7th Cir. 1951).

Michigan, which at one time supported this view, recently overruled its prior holding, although it did so on constitutional grounds which we do not reach here. Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700, 702, 703 (1972). It is interesting to note the special concurrence in that case which suggests the court should simply acknowledge it was wrong in deciding Morgan v. McDermott 382 Mich. 333, 356, 169 N.W.2d 897, 904 (1969), and overrule that case instead of going the constitutional route to avoid a confession of error.

The arguments on this issue, pro and con, have not changed since our opinion in Boyle v. Burt, supra, where each side of the case is stated in some detail. We therefore will not repeat at length what was said there. We now adopt the view that the notice requirements of section 613A.5, The Code, do not apply to actions between joint tort-feasors for either contribution or indemnity.

In Boyle v. Burt, supra, 179 N.W.2d at 518, 519, we listed cases from a number of state and federal jurisdictions which have reached this result under circumstances similar to those existing in the matter now before us. To that array we now add Roehrig v. City of Louisville, 454 S.W.2d 703, 705 (Ky.App.1970) and Cotham v. Board of County Commissioners, 260 Md. 556, 273 A.2d 115, 117, 121 (Md.1971); and, of course, there is Michigan, whose reversal of position has already been discussed.

The reasons given are not always the same. Some courts base their conclusion on the premise that the right to contribution or indemnity does not arise until one tort-feasor has paid more than his fair share and notice before that time is unnecessary; others simply say contribution and indemnity are not within the purview of the statute; a few make use of both arguments.

We base our decision on legislative intent. It is our conclusion the legislature intended section 613A.5 to be operative only in claims brought by the injured party under chapter 613A. We agree with those decisions which hold claims for contribution and indemnity are not within its purview. After giving serious consideration to what was said in the 'majority' opinion in Boyle v. Burt, supra, we conclude the result there urged would not only thwart the intent of the statute but would also summarily abrogate the important equitable principles of contribution which were finally established--after long struggle--in Best v. Yerkes, 247 Iowa 800, 810, 77 N.W.2d 23, 29, 60 A.L.R.2d 1354 (1956).

A few quotations from other courts supporting this view are perhaps appropriate.

In Minneapolis, St. Paul and Sault Ste. Marie Railroad Company v. City of Fondulac (7th Cir. 1961), 297 F.2d 583, 586, 93 A.L.R.2d 1378, the court said that 'a third-party claim for contribution is not within the purview of (the Wisconsin statute)' which provides no action should be maintained against a city on a claim of any kind until the claimant shall first present his claim to the council.

A similar declaration appears in Albert v. Dietz (D.C., Haw.1968), 283 F.Supp. 854, 857, where a defendant sought to implead a county to obtain contribution for alleged negligence but failed to do so within the six-month statutory limit under a statute which provided that 'the persons so injured * * * or someone in his behalf, shall, within six months after such injuries are received, give the chairman of the board of supervisors notice in writing of such...