IN THE SUPREME COURT OF IOWA
No. 67 / 06-0094
Filed August 17, 2007
BRITTANI RUCKER,
Appellant,
vs.
HUMBOLDT COMMUNITY SCHOOL
DISTRICT, HUMBOLDT HIGH SCHOOL,
and ROBERT HOFFMAN, BAND DIRECTOR,
Appellees.
Appeal from the Iowa District Court for Humboldt County, Kurt L.
Wilke, Judge.
Plaintiff appeals summary judgment for defendant in personal
injury case. AFFIRMED.
Frederick W. James of The James Law Firm, P.C., Des Moines, for
appellant.
Stephen G. Kersten of Kersten Brownlee Hendricks, L.L.P., Fort
Dodge, for appellees.
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STREIT, Justice.
Sometimes it pays to be a kid, but in this case it does not. When
Brittani Rucker was sixteen years old, she collapsed and suffered injuries
while participating in a parade with her high school’s marching band.
Approximately two-and-a-half years later she filed suit against Humboldt
Community School District, Humboldt High School, and the band
director alleging their negligence caused her injuries. The defendants
filed a motion for summary judgment arguing Rucker’s claim was
untimely because she was required to file her claim within two years of
her injury. Rucker countered Iowa Code section 614.8 (2005) extended
the time to file her claim to one year after her eighteenth birthday. The
district court ruled in favor of the defendants, holding section 614.8 does
not apply to claims against municipalities under chapter 670. We affirm.
I. Facts and Prior Proceedings
Rucker was a member of the Humboldt High School Band. On
May 27, 2002, Rucker marched with the band in the Humboldt Memorial
Day Parade. It was hot and muggy. Following the band’s performance at
the band shell in Bicknell Park, the band members were instructed to
remain at attention and listen to the guest speeches. During one of
these speeches, Rucker was injured when she collapsed and fell forward
landing on her chin and face. She was sixteen years old at the time.
Rucker turned eighteen on February 5, 2004.
Rucker filed this lawsuit on January 31, 2005. She alleged Robert
Hoffman, the band director, was negligent in failing to supply water to
the band members and failing to recognize the signs of heat stroke, heat
exhaustion, and/or dehydration. She alleged the Humboldt Community
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School District and Humboldt High School were liable for Hoffman’s
negligent acts under the doctrine of respondeat superior.
The defendants (hereafter collectively “Humboldt”) asserted the
affirmative defense of the statute of limitations in their amended answer.
Humboldt then moved for summary judgment. Humboldt argued
Rucker’s claim was time barred because she failed to file it within two
years of her injury. Rucker countered her claim was timely because she
filed it within one year after her eighteenth birthday. The district court
granted Humboldt’s motion for summary judgment, holding Iowa Code
section 614.8, which tolls the statute of limitations for minors, does not
apply to actions against municipalities. Rucker appealed.
II. Standard of Review
We review orders granting summary judgment for correction of
errors at law. Green v. Racing Ass'n of Cent. Iowa, 713 N.W.2d 234,
238 (Iowa 2006) (citing Otterberg v. Farm Bureau Mut. Ins. Co., 696
N.W.2d 24, 27 (Iowa 2005)).
“A motion for summary judgment should only be granted if,
viewing the evidence in the light most favorable to the
nonmoving party, ‘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.’ ”
Id. (quoting Otterberg, 696 N.W.2d at 27).
III. Merits
The issue before us is whether Iowa Code section 614.8, which
tolls the statute of limitations for minors in some actions, applies to the
present case. For the reasons that follow, we conclude it does not.
Iowa Code chapter 670 is the exclusive remedy for torts against
municipalities and their employees. See Iowa Code § 670.4; City of
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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.”).
Humboldt Community School District and Humboldt High School are
“municipalities” as defined by Iowa Code section 670.1(2). Rucker’s
claims against Hoffman are also subject to Iowa Code chapter 670
because Hoffman is being sued in his capacity as a municipal employee.
See Iowa Code § 670.2.
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.
We have previously held two portions of section 670.5 and its
predecessor, section 613A.5, unconstitutional. In Harryman v. Hayles,
257 N.W.2d 631 (Iowa 1977), we held the requirement that an
incapacitated plaintiff must sue within ninety days of an injury was a
denial of equal protection. Harryman, 257 N.W.2d at 634–35. We held
an incapacitated individual shall have sixty days following the
termination of the incapacity to bring suit. Id. at 635. We left the rest of
the statute intact. Id. In Miller v. Boone County Hospital, 394 N.W.2d
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776 (Iowa 1986), we held the statute’s requirement that a plaintiff
commence an action within six months after injury unless notice was
provided to the municipality within sixty days was also a denial of equal
protection. Miller, 394 N.W.2d at 780. There, we said “because section
613A.5 [now 670.5] is unconstitutional, we hold that Iowa Code chapter
614 is the applicable statute of limitations for all actions arising under
chapter 613A [now 670].” Id. at 781.
In a later case, we clarified that our Miller opinion struck down
only the provision requiring commencement of an action within six
months if notice is not given within sixty days. Clark v. Miller, 503
N.W.2d 422, 425 (Iowa 1993). In Clark, we held a plaintiff suing a
municipality under chapter 670 still had the option of providing “timely
notice” to the municipality. Id.; see Perkins v. Dallas Center-Grimes
Cmty. Sch. Dist., 727 N.W.2d 377, 381 (Iowa 2007) (stating “[t]imely
notice, we believe, means notice within a reasonable time after the
injury”). Under such a scenario, the limitation for filing suit under
chapter 670 is “two years after timely notice of the claim has been given.”
Clark, 503 N.W.2d at 425. If a plaintiff does not give timely notice of his
claim to the municipality, then the applicable statute of limitations is
found in chapter 614. Miller, 394 N.W.2d at 781. Iowa Code section
614.1(2) requires a plaintiff to file suit within two years from the date of
injury.
In the present case, Rucker concedes she did not provide notice
(timely or otherwise) to Humboldt. Thus, she was required to file suit
within two years from May 27, 2002, the date of her injury. She did not
do so. Consequently, her claim is barred.
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Rucker argues our holding in Miller incorporated chapter 614’s
tolling provision for minors with respect to claims against municipalities.
Section 614.8(2) provides “[t]he times limited for actions in this chapter
. . . 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.”
Under this theory, Rucker’s claim, which she filed on January 31, 2005,
was timely because she had until February 5, 2005 to bring suit.
We recently rejected this argument in Perkins. There, we said:
[N]othing 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 . . . .”
Perkins, 727 N.W.2d at 380. In short, we held “[t]he Iowa legislature has
never indicated any intent to incorporate a tolling provision in chapter
670, and we decline[d] to do so by relying on the broad language of
Miller.” Id. at 381. We see no reason to revisit our holding in Perkins.
See McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (noting “[w]e do
not overturn our precedents lightly and will not do so absent a showing
the prior decision was clearly erroneous”). Iowa Code section 614.8 does
not save Rucker’s claim.
In Perkins, we noted “section 670.5 ha[d] not been amended to
reflect the holdings in our cases of Harryman (decided in 1977) and Miller
(decided in 1986). . . . We respectfully urge[d] the legislature to examine
the statute and clarify its present status in view of our rulings.” Perkins,
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727 N.W.2d at 381 n.1. Shortly thereafter, the legislature did amend
section 670.5. It now states:
Except as provided in section 614.8, a person who claims
damages from any municipality or any officer, employee or
agent of a municipality for or on account of any wrongful
death, loss, or injury . . . shall commence an action therefor
within two years after the alleged wrongful death, loss or
injury.
2007 Iowa Acts, S.F. 384, § 5. The legislature simplified the statute by
removing the notice requirement. It also changed the statute so that the
tolling provision for minors found in section 614.8 now applies to
municipal tort claims. Likewise, section 614.8(2) was amended so that it
now reads “the times limited for actions in this chapter, or chapter . . .
670 . . . are extended in favor of minors, so that they shall have one year
from and after attainment of majority within which to file a complaint
. . . .” Id. § 2 (emphasis added). These amendments do not change the
outcome in this case because they only apply to claims “arising out of an
alleged death, loss, or injury occurring on or after July 1, 2007.” Id. § 6.
IV. Conclusion
Rucker’s claim against Humboldt is barred by the statute of
limitations because she did not file her claim within two years of the date
of her injury. The tolling provision for minors found in section 614.8
does not apply to claims brought under chapter 670 for injuries
occurring before July 1, 2007.
AFFIRMED.
All justices concur except Wiggins, Hecht, and Appel, JJ., who
dissent.
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No. 67 / 06-0094, Rucker v. Humboldt Community School
WIGGINS, Justice (dissenting).
I dissent. In Miller v. Boone County Hospital, this court held
“because section [670.5] is unconstitutional, we hold that Iowa Code
chapter 614 is the applicable statute of limitations for all actions arising
under chapter [670].” 394 N.W.2d 776, 781 (Iowa 1986). In Perkins v.
Dallas Center Grimes Community School District, the majority resurrected
part of Iowa Code section 670.5. 727 N.W.2d 377, 381 (Iowa 2007).
There, the majority held if a claimant gave notice of an injury to a
governmental entity, the claimant has two years from the date of giving
notice to file an action.
In today’s decision, the majority completes section 670.5’s
resurrection by holding if the claimant fails to give any notice, a two-year
statute of limitations applies. Today’s decision is not only contrary to
this court’s holding in Miller, but it also rewrites the statute in a manner
inconsistent with the present legislative intent.
Prior to this court’s decision in Miller, the two-year limitation
period contained in section 670.5 only applied if the claimant gave notice
of an injury. Under the plain language of section 670.5, the statute
shortened the limitations period to six months if the claimant did not
give notice. Iowa Code § 670.5. In Miller, this court held “[f]ailure 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.” Miller, 394 N.W.2d at 780.
Accordingly, in Miller this court held the six-month limitations period
unconstitutional. Id.
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It is not this court’s function to write a new statute when the court
finds a portion of the statute unconstitutional. When the legislature fails
to act after this court finds a statute to be unconstitutional, our proper
function is to determine what statute of limitations applies under the
facts presented.
For the reasons stated in my dissent in Perkins, sections 614.1(2)
and 614.8(2) should apply to Rucker’s claim. See Perkins, 727 N.W.2d at
381-83 (Wiggins, J., dissenting). Sections 614.1(2) and 614.8(2) extend
the time Rucker can file her claim for one year from and after her
attainment of majority. Iowa Code §§ 614.1(2), 614.8(2).
Additionally, the application of chapter 614 to Rucker’s claim is
consistent with the present legislative intent. Subsequent to our decision
in Perkins, the legislature amended section 670.5 to extend a claimant’s
statute of limitations for one year from and after the attainment of
majority. 2007 Iowa Acts, S.F. 384, §§ 2, 5.
The majority discounts the enactment of this statute as evidencing
legislative intent because its effective date was only to claims “arising out
of an alleged death, loss, or injury occurring on or after July 1, 2007.”
Id. § 6. I disagree. The legislature had to delay the enactment of the
statute to avoid barring the claims of those persons who gave notice
under the statute as resurrected by Perkins because those giving notice
have two years from the date of giving notice to file a claim, rather than
two years from the date of injury to file a claim.
Therefore, because Rucker was a minor, her statute of limitations
is extended for one year from and after her attainment of majority. Iowa
Code § 614.8(2).
Hecht and Appel, JJ., join this dissent.
Brittani Rucker Vs. Humboldt Community School District, Humboldt High School, And Robert Hoffman, Band Director
Combined Opinion