(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 *296statute 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 “[ffeilure 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.
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.