Perkins Ex Rel. Perkins v. Dallas Center-Grimes Community School District

727 N.W.2d 377, 2007 Iowa Sup. LEXIS 12, 2007 WL 430633

• Court: Supreme Court of Iowa
• Decided: February 9, 2007
• Docket: 05-1075
• Status: Published

Opinions

LARSON, Justice.

Laura Perkins was injured in an accident at a Dallas Center-Grimes school. Her father, David Perkins, sued the school district on her behalf. The district court granted the defendant’s motion for summary judgment on statute-of-limitation grounds, and the court of appeals affirmed. We affirm the decision of the court of appeals and the judgment of the district court.

I.Facts and Prior Proceedings.

On February 27, 2001, Laura Perkins was participating in a school event when she injured her hand and wrist by putting them through a glass door at the school. On April 19, 2002, an attorney representing Perkins sent a letter to the school’s insurance adjuster notifying him that the attorney had been retained by Perkins to pursue her claim for injuries sustained on the school’s premises. The letter requested that the adjuster contact the attorney to discuss resolution of the claim.

Perkins filed suit on August 12, 2004, against the school district, alleging negligence for failure to install safety glass in the door and failure to inspect it. The school moved for summary judgment on the ground that Iowa Code section 670.5 (2003) barred the claim as untimely. The district court granted summary judgment, concluding that Perkins did not comply with the requirements of section 670.5 regarding timely notice of the injury and bringing the lawsuit within the time provided. Further, the district court ruled that the tolling provision for minors in Iowa Code section 614.8 did not apply to claims brought under chapter 670.

II. Standard of Review.

Review of a ruling on a motion for summary judgment is for correction of errors at law. Iowa R.App. P. 6.4; Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 840-41 (Iowa 2005). Summary judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). When the facts are undisputed and the only dispute concerns the legal consequences flowing from those facts, the court must determine whether the district court correctly applied the law. City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996). The facts of this case are not in dispute.

III. Discussion.

The school district is a municipal defendant, as defined by Iowa Code section 670.1(2), a part of our Municipal Tort Claims Act. A municipality under chapter 670 is only liable in tort as provided by that chapter. See Iowa Code § 670.2; City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 18 (Iowa 2000) (“Suits against the government may be maintained only to the extent immunity has been expressly waived by the legislature.”). Iowa Code section 670.5 provides a time period within which a plaintiff must file notice and bring suit against a municipal defendant:

Every person who claims damages from any municipality ... on account of any wrongful death, loss or injury within the scope of section 670.2 or section 670.8 or under common law shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty 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.... No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by the injury from giving such notice.

Iowa Code § 670.5 (transferred from Iowa Code § 613A.5 by the code editor for Code 1993).

We have done surgery twice on section 670.5 and its predecessor, section 613A.5. In Harryman v. Hayles, 257 N.W.2d 631 (Iowa 1977), we held that section 613A.5’s requirement that an incapacitated plaintiff must sue within ninety days of the injury was unconstitutional as a denial of equal protection. We held that such a person should have sixty days following termination of the incapacity to bring the action. Harryman, 257 N.W.2d at 635. In Harryman we were careful to only excise that part of the statute that limited an incapacitated plaintiffs ability to bring suit; the rest of the statute was left intact. The reason for striking only part of the statute was that,

[i]f it appears the legislature would probably have enacted the statute even if the objectionable part had been omitted and if it appears the statute can still accomplish the principal legislative purpose, the remaining valid part is said to be severable from the invalid. In such cases our obligation is to save as much of the statute as possible, eliminating only that which is necessary to make it constitutionally sound.

Applying those principles to this case, we hold § 613A.5 is a valid and enforceable statute except for the words “not to exceed 90 days.” Those words are stricken. The statute with this modification is valid and enforceable.

We now hold a person incapacitated as provided in § 613A.5 has 60 days following the termination of his incapacity to give the statutory notice of injury.

Id. at 635.

We voided another part of the statute in Miller v. Boone County Hospital, 394 N.W.2d 776 (Iowa 1986), holding the statute’s requirement that a plaintiff commence an action within six months, after injury unless notice is provided to the municipality within sixty days was an unconstitutional violation of the equal protection provisions of the Iowa and United States Constitutions. Miller, 394 N.W.2d at 780. We held that the loss of a cause of action because of “[flailure to commence an action within six months unless a notice is given within 60 days arbitrarily bars victims of governmental torts while victims of private torts suffer no- such bar.” Id.

Unfortunately, Miller was unclear whether section 670.5 was to be held unconstitutional in its entirety or merely the provision requiring filing an action within six months if notice is not given within sixty days. The plaintiff in this case argues that “Miller .., struck down section 670.5 in its entirety.” The plaintiff relies on language that, if taken in isolation from the rest of the Miller holding, might suggest a broader holding than was actually intended. We said in Miller that, “because section 613A.5 is unconstitutional, we hold that Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter 613A.” 394 N.W.2d at 781.

Any doubt regarding the breadth of our holding in Miller, however, was cleared up in Clark v. Miller, 503 N.W.2d 422 (Iowa 1993). In Clark we held that only the statute’s requirement of filing suit in six months or giving notice within sixty days had been stricken. 503 N.W.2d at 425. We relied on this rationale:

Severance of unconstitutional provisions from constitutional portions of a statute is appropriate if it does not substantially impair legislative purpose, the enactment remains capable of fulfilling the apparent legislative intent, and the remaining portion of the enactment can be given effect without the invalid provision ....

We find the provisions of section 613A.5 can be severed to exclude the unconstitutional portion of the statute while retaining the remaining portion.

Id. at 425 (citation omitted). We held that the portion of section 670.5 remaining after excising the requirement for suit in six months or notice within sixty days was valid. Thus, the time limitation for filing suit under chapter 670, we said, was “two years after timely notice of the claim has been given-” Id. at 425. We specifically rejected the argument the plaintiff makes in this case — that section 670.5 is void in its entirety. The two-year limitation from notice of the claim is still valid. In this case, the plaintiff gave notice of the injury on April 19, 2002, and filed suit on August 12, 2004. This was beyond the two-year limitation of section 670.5 and therefore is barred.

The plaintiff has an alternative argument. Perkins was a minor at the time of the accident. Our general statute of limitations, in section 614.8(2), provides this with respect to claims by minors:

[T]he [time limits] for actions in this chapter, except those brought for penalties and forfeitures, are extended in favor of minors, so that they shall have one year from and after attainment of majority within which to commence an action.

Here, the plaintiff contends she is entitled to the benefit of section 614.8(2) because of language in Miller that, because the sixty-day notice requirement was invalid, “Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter 613A.” Miller, 394 N.W.2d at 781. She argues that, by incorporating chapter 614, Miller intended to suggest that the tolling provision of section 614.8(2) would be incorporated as well.

However, nothing in Miller or any of our other cases has indicated that the tolling provision was intended to be read into section 670.5. In Conner v. Fettkether, 294 N.W.2d 61, 63 (Iowa 1980), we said the tolling provision of section 614.8 is “an extension, not a limitation,” so Miller’s reference to the limitation provisions of chapter 614 would necessarily exclude section 614.8(2). Moreover, we held in Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989), that

the tolling provisions of section 614.8 do not apply to statutes of limitation outside of chapter 614. Section 614.8 states that it applies to the “times limited for actions herein,” and is, therefore, limited by its own language to chapter 614....

A review of the statutes of limitation located outside of chapter 614 demonstrates that the legislature will make specific provisions for tolling when it intends to do so.

In Harden we gave examples in which the legislature had incorporated tolling provisions into statutes outside chapter 614. Id.

The Iowa legislature has never indicated any intent to incorporate a tolling provision in chapter 670, and we decline to do so by relying on the broad language of Miller. Miller did not even involve a claim by a minor. See Schultze v. Landmark Hotel Corp., 463 N.W.2d 47, 49 (Iowa 1990) (“Ordinarily, we may not, under the guise of judicial construction, add modifying words to the statute or change its terms.”); 2A Norman J. Singer, Statutes and Statutory Construction § 47.38, at 395 (2000 rev.) (“In construing a statute, it is always safer not to add to or subtract from the language of a statute unless imperatively required to make it a rational statute.”).

In summary, we hold that Miller did not invalidate section 670.5 in any respect except its requirement for the sixty-day notice. The two-year limitation in that statute remains intact. As we said in Clark, the two-year limitation to bring suit begins with “timely” notice of the claim. Clark, 503 N.W.2d at 425. “Timely” notice, we believe, means notice within a reasonable time after the injury. Here, the defendant argues that the plaintiffs notice of injury (a little over a year after the injury) was not timely. However, we need not resolve that issue because, in any event, more than two years had elapsed between the notice and the filing of the suit. The suit was therefore not timely under section 670.5. Further, the plaintiffs case is not rendered timely by the tolling provision of section 614.8(2). We affirm the decision of the court of appeals and the judgment of the district court.¹

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except WIGGINS, J., who dissents, and HECHT and APPEL, JJ., who take no part.

1 . We note parenthetically that section 670.5 has not been amended to reflect the holdings in our cases of Harryman (decided in 1977) and Miller (decided in 1986). These cases voided significant portions of the statute as it now exists. As a result, a researcher would be seriously misled by relying on the statute in its present form. We respectfully urge the legislature to examine the statute and clarify its present status in view of our rulings.