Laura J. Perkins By David M. Perkins, Her Parent And Next Friend Vs. Dallas Center-grimes Community School District

IN THE SUPREME COURT OF IOWA
No. 122 / 05-1075

Filed February 9, 2007

LAURA J. PERKINS by DAVID M. PERKINS, Her Parent and Next Friend,

Appellant,

vs.

DALLAS CENTER-GRIMES COMMUNITY SCHOOL DISTRICT,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.

Plaintiff appeals from summary judgment for defendant in personal

injury case. DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

Randy V. Hefner and Matthew J. Hemphill of Hefner & Bergkamp,

P.C., Adel, for appellant.

Jason T. Madden and Karin A. Stramel of Bradshaw, Fowler, Proctor

& Fairgrave, P.C., Des Moines, for appellee.
 2

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
 3

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).
 4

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 plaintiff’s 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 “[f]ailure to commence an action within
 5

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
 6

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. . . .
 7
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

plaintiff’s 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 plaintiff’s 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

1We 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
 8

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.

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.
 9

#122/05-1075, Perkins v. Dallas Center-Grimes Cmty. Sch. Dist.

WIGGINS, Justice (dissenting).

I dissent. Under today’s ruling we create two separate rules governing

the statute of limitations for claims against governmental entities. The first

rule applies when a party fails to give notice to a governmental entity within

sixty days of the wrongful death or loss of injury. In this situation Iowa

Code chapter 614 is the applicable statute of limitations. Miller v. Boone

County Hosp., 394 N.W.2d 776, 781 (Iowa 1986). Chapter 614 extends the

limitations period for minors “so that they shall have one year from and

after attainment of majority within which to commence an action.” Iowa

Code § 614.8(2).

The second rule applies when a party gives notice to a governmental

entity within sixty days of the wrongful death or loss of injury. Under

today’s decision the statute of limitations period ends two years after notice

is given and section 614.8(2) will not extend the limitations period.

Applying two different sets of rules to claims against governmental

entities makes no sense to me. Although I agree with the majority that we

have done surgery twice on Iowa Code section 670.5, 2 I do not believe

section 670.5 survived the second surgery.
In Miller we said: “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].” Miller, 394 N.W.2d at 781. To me that

means we held the entire statute unconstitutional. A review of Miller

confirms my understanding.

In Miller the district court dismissed the plaintiffs’ claim for failure to

give the defendant, a governmental entity, notice of their claim under

2Iowa Code section 670.5 was formerly number as 613A.5. In this dissent all
references to chapter 613A and section 613A.5 will be referred to as chapter 670 and
section 670.5, respectively.
 10

section 670.5. Id. at 777. On appeal the plaintiffs alleged the notice

requirements of section 670.5 violated equal protection. Id. In our equal
protection analysis we focused on whether a rational basis existed to

require a sixty-day notice in tort claims against a governmental entity when

no such notice was required for other tort claims. Id. at 778-79.

We noted the sixty-day notice requirement did not protect

governmental entities from stale claims “because plaintiffs bear the burden

to prove negligence, any difficulty in proof in cases arising after sixty days

would beset them as well as defendants.” Id. at 779. We also noted the

sixty-day notice did not promote early settlement of claims because “[t]he

extent of a person’s injuries is often unknown for months, and settlement is

unlikely to occur under such circumstances.” Id. at 780. Finally, we stated

the sixty-day notice requirement did not lead to the early repair of defective

conditions. Id.

We then held there was no rational basis justifying the legislature’s

requirement that a person with a tort claim against a governmental entity

give a sixty-day notice as a condition of commencing a claim when the

legislature did not require a sixty-day notice as a condition of commencing a

claim against a nongovernmental entity. Id. at 780-81. As a consequence
of holding the sixty-day notice requirement violated equal protection, we

held the six-month limitation was also unconstitutional because to allow

the six-month limitation to bar the plaintiffs’ cause of action would give

effect to the sixty-day notice requirement of section 670.5. Id. at 780.

Accordingly, we meant what we said in Miller, “section [670.5] is

unconstitutional, [and] Iowa Code chapter 614 is the applicable statute of

limitations for all actions arising under chapter [670].” Id. at 781.

Seven years later this court without any analysis or explanation

found a rational relationship to a legitimate government interest existed
 11

between the sixty-day notice and the commencement of a tort claim against

a governmental entity. Clark v. Miller, 503 N.W.2d 422, 425 (Iowa 1993).
There we stated:

Allowing the statute of limitations to be extended so as to
permit a filing of an action within two years after timely notice
of the claim has been given does not violate equal protection
guarantees. To allow a person to commence a tort action against
a unit of local government within two years after giving timely
notice is not patently arbitrary. Such a provision bears a rational
relationship to a legitimate governmental interest. The objective
of such an extension is not to bar stale claims, but to encourage
prompt reporting of claims. We find the remaining portion of
section [670.5] fulfills an apparent legislative intent. Similar
statutory authority extending the time to begin a suit is
provided in the Iowa Tort Claims Act.

Id. (emphasis added).

Miller and Clark cannot be reconciled. In Miller the plaintiffs did not

give notice. There we held the sixty-day notice was not rationally related to

a legitimate government interest and applied the statute of limitations found

in chapter 614. In Clark the plaintiff gave a sixty-day notice. There we held

the sixty-day notice was rationally related to a legitimate government

interest and applied the limitation period in section 670.5.

The analysis in Miller concentrated on the sixty-day notice
requirement and held the sixty-day notice requirement under section 670.5

violated equal protection. Miller, 394 N.W.2d at 780-81. Once we found the

sixty-day notice provision of section 670.5 violated equal protection, we

found the entire statute unconstitutional. Id. at 781. Clark was wrong to

hold otherwise. Miller was correct when it held the statute of limitations

found in chapter 614 is applicable to claims under chapter 670. I can see

no reason to depart from the holding in Miller. Accordingly, I would overrule

Clark and apply the statute of limitations contained in chapter 614 in this

case.
 12

Normally, when a plaintiff’s claim is based on injury to the person, a

two-year statute of limitations is applicable. Iowa Code § 614.1(2).
However, at the time of the accident, Perkins was a minor. A minor’s

statute of limitations is extended “so that they shall have one year from and

after attainment of majority within which to commence an action.” Id. §

614.8(2). Perkins reached her majority on August 7, 2006. Her parents

filed this suit on her behalf on August 12, 2004, well within the time limits

of the extended limitations period. Accordingly, I would reverse the

judgment of the district court and allow the case to proceed to trial.