Callahan v. State

SCHULTZ, Justice

(dissenting).

The majority opinion applied the discovery rule to claims brought under Iowa Code section 25A.13 (1987). In this case, the State argued, under the admitted facts, that plaintiff failed to support her position that the discovery rule was applicable. I agree with the State’s position and would not have addressed the discovery rule. Even if I would have addressed the discovery rule, I would not have applied the rule to section 25A.13.

We recently refused to apply the tolling provision of Iowa Code section 614.8 to the claim of a minor under section 25A.13. Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989). We decided that the legislature did not intend to toll the limitation period for tort claims against the State. Id. Under the majority opinion, we will apply the discovery rule to cases involving minors; however, we will not toll the statute of limitations. I believe that this result is inconsistent.

The discovery rule is a judicially created doctrine based on equitable considerations which limits the application of a statutorily imposed bar to actions. The purpose is to preclude harsh and unjust results flowing from an automatic adherence to a limitation statute. Even though we have liberally applied the discovery rule to many different causes of action, Brown v. Ellison, 304 N.W.2d 197, 200 (Iowa 1981), we should evaluate each new application on its individual merits. We should only impose this judicial doctrine to remove statutory bars in those instances when equitable considerations demand it.

We have never applied the doctrine of the discovery rule to the statute of limitations in section 25A.13. We have rejected the application of the discovery rule to the time-limit provisions in Iowa Code chapter 613A (1977), governing tort liability of governmental subdivisions. We reasoned that the notice provision in section 613A.5 required the time period to run from the time of the loss rather than from the accrual of the action. Montgomery v. Polk County, 278 N.W.2d 911, 914-18 (Iowa 1979); see also Farnum v. G.D. Searle & Co., Inc., 339 N.W.2d 392, 396-97 (Iowa 1983). When the discovery rule is at issue, I would treat claims under chapter 25A the same as under chapter 613A.

I believe the trial court’s ruling on application of the discovery rule was correct. It determined that Matthew was aware of the *275physical and sexual abuse that he sustained and was aware of the responsible parties. I would not, as did the majority, be influenced by an Iowa statutory change which took place two years after this cause of action was commenced. Plaintiff did not resist the motion for summary judgment by advancing any evidence of Matthew’s incapacity to understand the facts concerning the sexual impropriety. Plaintiff only asserts Matthew’s handicaps and the reluctance of children to disclose sensitive information. The plaintiff has the burden of going forward with the evidence to establish application of the discovery doctrine and showing in the resistance that a genuine issue of fact exists on the discovery issue. I believe that this was not done.

The mother’s claim was for loss of consortium. Iowa Rule of Civil Procedure 8 allows a claim by a parent for the expenses incurred for the benefit of the child and actual loss of services, companionship, and society resulting from injuries caused by a third party. If the mother suffered these damages, it seems logical that she would have noticed the occurrence of the tort. Any awareness giving rise to the mother’s claim is inconsistent with her claim of late discovery.

I would hold that the discovery rule should not be extended to a parent when it is not available to the child. I am aware that we previously indicated that parental consortium claims are not truly derivative actions and that the parent is not subject to the same defenses raised against a minor. Handeland v. Brown, 216 N.W.2d 574, 578-79 (Iowa 1974). Even though the claim is not truly derivative, the action certainly grows out of the same occurrence. Other courts have held that a spouse’s loss of consortium claim accrues simultaneously with the primary claim of the injured spouse. Tomlinson v. Siehl, 459 S.W.2d 166, 168 (Ky.1970); Box v. Walker, 453 A.2d 1181, 1183 (Me.1983). I would hold that any claim that the mother may have had in this case is barred by the limitation period imposed on the child.

I agree with the majority’s decision that the federal claims present a different limitation bar than the state tort claims. I would reverse the district court’s dismissal of the child’s section 1983 claim. However, the tolling provision of section 614.8 should not apply to the mother’s consortium claim under section 1983. Section 614.8 provides no aid to the parent of a minor child. Although we have not previously passed on this issue, a Nebraska court recently held that a statute similar to section 614.8 is for the exclusive and personal benefit of a minor and does not extend the time period for a parent to bring a consortium claim. Macku v. Drackett Prods. Co., 216 Neb. 176, 183, 343 N.W.2d 58, 62 (1984); see also Emerson v. Southern Ry., 404 So.2d 576, 580 (Ala.1981); Shahf v. Lake Havasu City Ass’n for the Retarded and Handicapped, 150 Ariz. 50, 56, 721 P.2d 1177, 1183 (Ct.App.1986); Ostrander v. Cone Mills, Inc., 445 N.W.2d 240, 241 (Minn.1989). I would follow this authority.

McGIVERIN, C.J., and HARRIS and CARTER, JJ., join this dissent.