Webb v. T.D.

ATO. 95-234
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

DIANA L. WEBB,
Plaintiff and Appellant,
v.
T.D., D.C.; R.K.S., M.D.; and
C.H.A., M.D.,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Bars, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John M. Morrison, Meloy & Morrison,
Helena, Montana
For Respondents:
Richard F. Cebull, Brown! Gerbase, Cebull,
Fulton, Harman & Ross, Billings, Montana
(for Respondent R.K.S., M.D.)
Ronald L. Lodders, Crowley, Haughey, Hanson,
Toole & Dietrich, Billings, Montana
(for Respondent C.H.A., M.D.)
-<.j

'Submitted on Briefs: November 21, 1995

FE!?2 0 1996 Decided: February 20, 1996
Filed: I
2.j
CLC+( fir i.. ;;;,;x i;i;.:cI'r
STATE OF iric;;.'rUi%,&
Justice Terry N. Trieweiler delivered the opinion of the Court.
On September 9, 1991, Diana Webb filed a claim with the
Medical Legal Panel against R.K.S., an orthopedist, and C.H.A., a
radiologist. After the Panel rendered its decision, Webb filed a
timely complaint against the two doctors in the District Court for
the Thirteenth Judicial District in Yellowstone County. On
August 2, 1993, Webb filed an application with the Chiropractic
Legal Panel against T.D. and named R.K.S. and C.H.A. as necessary
and proper parties to the action. On August 3, 1993, Webb
voluntarily dismissed the pending district court action against
R.K.S. and C.H.A. without prejudice. The Chiropractic Legal Panel
rendered its decision on November 16, 1993. On December 13, 1993,
Webb filed a second complaint in the Thirteenth Judicial District
Court against all defendants. On February 3, 1995, the District
Court granted R.K.S.'s and C.H.A.'s motions for summary judgment on
the ground that Webb's complaint was barred by the applicable
statute of repose. Webb appeals the District Court's order which
granted summary judgment. We reverse the District Court and remand
for further proceedings.
There is one issue on appeal:
Is Webb's complaint barred by the five-year statue of repose
set forth at § 27-z-205, MCA?
FACTUAL BACKGROUND
Diana Webb suffered a back injury during the course of her
employment in May 1986. After her accident, Webb consulted T.D.,
a chiropractor, concerning her symptoms. In October 1986, her

2
employer's workers' compensation insurer referred her to R.K.s., an

orthopedist, for further evaluation. On October 7, 1986, R.K.S.

performed a clinical evaluation and ordered a CT-scan, which was

read by C.H.A., a radiologist. The next day, R.K.S. wrote Webb a

letter in which he stated that he had reviewed the CT-scan and it

looked "excellent." He assigned Webb a two percent impairment

rating and released her to perform heavy work without restriction.

In 1989, while Webb was working for a construction company in

California, she suffered a severe aggravation of her earlier

injury. Afterward, on August 22, 1989, Webb again consulted T.D.

about her back condition. T.D. treated Webb until the end of 1989

without referring her to a physician for evaluation. In January

1990, allegedly at the insistence of Webb's husband, T.D. referred

Webb to Arturo Echeverri, a neurologist. Dr. Echeverri ordered

magnetic resonance imaging of Webb's spine, which revealed "a

massive herniation of the L-5 disc on the right side compressing

the S-1 nerve root as well as the rest of the cauda equina."

Neurosurgeon Maurice Smith performed a laninotony, but Webb was

left with residual nerve damage as a result of prolonged nerve root

compression from the massively herniated and fragmented disc. The

January 10, 1990, MRI results were the first indication to Webb

that she had a disc herniation.

On September 9, 1991, Webb filed a medical legal panel

application naming R.K.S. and C.H.A., in which she alleged that

R.K.S. performed a negligent physical examination and C.H.A.

negligently interpreted the CT-scan on October 7, 1986. The
Medical Legal Panel rendered its decision on March 18, 1992. On
April 16, 1992, within thirty days of the Panel decision, Webb
filed a complaint against R.K.S. and C.H.A. in the Thirteenth
Judicial District Court in Yellowstone County. The summonses were
issued on that date, but were never served.
On June 29, 1992, Webb's attorney died in an airplane crash.
On June 29, 1993, a new attorney appeared on Webb's behalf.
Shortly thereafter he decided that T.D. should have been a
defendant in the original action. Accordingly, on August 2, 1993,
Webb filed an application with the Chiropractic Legal Panel for
review of her treatment by T.D. and named R.K.S. and C.H.A. as
necessary and proper parties to the action. On August 3, 1993,
Webb voluntarily dismissed the pending district court action
against R.K.S. and C.H.A. without prejudice. The Chiropractic
Legal Panel rendered its decision on November 16, 1993. Webb filed
her second complaint in District Court against all defendants on
December 13, 1993, within thirty days of the Chiropractic Legal
Panel decision.
On February 3, 1995, the District Court granted the motions

for summary judgment filed by R.K.S. and C.H.A. The court held
that Webb's injury occurred in October 1986 when the defendants
failed to diagnose a damaged intervertebral disc; that six years
had passed from the date of injury before Webb filed her complaint
in district court; and therefore, that Webb's complaint is barred
by the five-year statute of repose found at 5 27-2-205, MCA.

4
 DISCUSSION
Is Webb's complaint barred by the five-year statute of repose

set forth at 5 27-2-205, MCA?

This Court reviews a district court's order granting summary
judgment based on the same criteria applied originally by the

district court. Brunerv. Yellowstone County (Mont. 1995), 900 P.2d 901,

903, 52 St. Rep. 699, 700. Rule 56(c), M.R.Civ.P., provides that

summary judgment is proper only when "there is no genuine issue as

to any material fact and . . the moving party is entitled to
judgment as a matter of law."

In this case, the District Court granted summary judgment in

favor of R.K.S. and C.H.A. because it held that Webb's malpractice

claim was barred by the five-year statute of repose found at

§ 27-2-205, MCA. Section 27-2-205, MCA (1985), in effect at the

time of Webb's treatment in 1986, provides:

Action for injury or death against a physician or surgeon
. . [or] chiropractor . . . based upon such person's
alleged professional negligence or for rendering
professional services without consent or for error or
omission in such person's practice, shall be commenced
within 3 years after the date of injury or 3 years after
the plaintiff discovers or through the use of reasonable
diligence should have discovered the injury, whichever
occurs last, but in no case may such action be commenced
after 5 vears from the date of iniurv. However, this
time limitation shall be tolled for any period during
which such person has failed to disclose any act, error,
or omission upon which such action is based and which is
known to him or through the use of reasonable diligence
subsequent to said act, error, or omission would have
been known to him.

(Emphasis added).
 Webb contends that the five-year statute of repose set forth

in § 27-2-205, MCA, did not begin to run until 1989 because the
"date of injury" was the date on which she herniated the bulging

disc which respondents failed to diagnose. Because she filed her
complaint in 1993, she contends that it was filed well within the

five-year period. The defendants contend, and the District Court

agreed, that Webb's date of injury, if there was an injury,
occurred on October 7, 1986, when the defendants allegedly failed
to diagnose her true condition.

Webb further asserts that even if the "date of injury" was in

1986, when R.K.S. and C.H.A. allegedly misread her CT-scan, the
statute of repose still would not have run because the statute was

tolled continuously from the time she filed her original

application with the Medical Legal Panel. Based on our resolution

of this issue, we decline to address the first issue, and

therefore, draw no conclusion about Webb's "date of injury."

The date of discovery has not been contested, and therefore,

is not an issue in this case.

Section 27-2-205, MCA, requires that a medical malpractice

action be "commenced" within three years from the date of injury or

within three years after the plaintiff discovers the injury, but in

no case, later than five years from the date of the injury.

Section 27-2-102(l) (b), MCA, states that U [flor the purposes of

statutes relating to the time within which an action must be

commenced . . . an action is commenced when the complaint is

filed." Section 27-6-702, MCA (1985), provides that "[tlhe running

6
of the applicable limitation period in a malpractice claim is

tolled upon receipt by the director of the application for review

. . [and1 does not begin again until 30 days after . . the

panel's final decision . . . .'I Diana Webb filed her application
on September 9, 1991, and effectively tolled the running of the
applicable limitation period four years, eleven months, and two

days after the date of defendants' alleged malpractice on

October 7, 1986. Her action was commenced on April 16, 1992,

before the limitation period began to run again, and therefore,

within five years from the date defendants rely on as the "date of

injury."

Webb's district court complaint was still pending when she

filed her application with the Chiropractic Legal Panel which named

T.D. as the subject care provider, and R.K.S. and C.H.A. as

necessary and proper parties to the action. The statute of

limitations remained tolled throughout the pendency of the

Chiropractic Legal Panel decision pursuant to 5 27-12-701, MCA,

which provides:

(1) Upon receipt of an application by the director,
the running of an applicable limitation period in a
malpractice claim is tolled as to each chiropractic
physician named as a party and as to each other person or
entity named as a necessary or proper party for a court
action that might subsequently arise out of the factual
circumstances set forth in the application.
(2) The running of the applicable limitation period
in a malpractice claim does not begin again until:
(a) 30 days after an order of dismissal, with or
without prejudice against refiling, is issued; or
(b) after the panel's final decision is entered in
the permanent files of the panel and a copy is served
upon the complainant or his attorney.

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The Chiropractic Legal Panel rendered its decision on November 16,

1993. Webb filed her second complaint in District Court in which

she named all three defendants on December 13, 1993, fewer than
thirty days after the Panel's decision was rendered.

In this case, both parties agree that the statute of

limitations for Webb's claim was tolled during the pendency of her

application before the Medical Legal Panel, and for thirty days

thereafter. The parties disagree, however, on the effect of Webb's

first complaint in the District Court, which was filed on April 16,

1992, and which was voluntarily dismissed on August 3, 1993. Webb
maintains that the filing of the complaint tolled the statute of

limitations, and that the statute remained tolled while that suit

was pending. Webb further maintains that her voluntary dismissal

of the district court action did not have the effect of nullifying

that tolling period, because her claim continued to pend in another

forum. The respondents, however, contend that the filing of a

complaint which was never served on a defendant does not toll the

statute of limitations. They further contend that Rule 41(e),

M.R.Civ.P., prohibits the refiling of a claim against a defendant

when the plaintiff has failed to serve a summons and the complaint

before its dismissal.

Rule 41(e), M.R.Civ.P., provides:

No action heretofore or hereafter commenced shall be
further prosecuted as to any defendant who has not
appeared rn the action or been served in the action as
herein provided within 3 years after the action has been
commenced, and no further proceedings shall be had
therein, and all actions heretofore or hereafter
commenced shall be dismissed by the court in which the

8
 same shall have been commenced, on its own motion, or on
the motion of any party interested therein, whether named
in the complaint as a party or not, unless summons shall
have been issued within 1 year, or unless summons issued
within one year shall have been served and filed with the
clerk of the court within 3 years after the commencement
of said action, or unless appearance has been made by the
defendant or defendants therein within said 3 years.
When more than one defendant has been named in an action,
the action may within the discretion of the trial court
be further prosecuted against any defendant who has
appeared within 3 years, or upon whom summons which has
been issued within 1 year has been served and filed with
the clerk within 3 years as herein required.
Respondents contend that pursuant to Rule 41(e) Webb was prohibited

from refiling her claim because she failed to serve the summons on
her first complaint before she voluntarily dismissed it. They cite

First Call, Inc. V. Capital Answering Service, Inc. (Mont . 1995 ) , 8 98 P .2d 96 , 52

St. Rep. 496, for the proposition that the dismissal of Webb's

first complaint bars her second complaint based on principles of res

judicata . We disagree, however, with respondents' characterization

of FivstCall. In FirstCall, the district court dismissed the plaintiff's

complaint without prejudice because the summons was not served

within three years, as required by Rule 41(e), M.R.Civ.P. We held

that when a district court dismisses a complaint because of a

failure by the plaintiff to serve the summons within three years,

the action may not be refiled. In this case, however, the court

did not dismiss the complaint, and Webb did not fail to serve her

summons within three years from the date on which she filed her

complaint. In fact, the service of Webb's summons and second

comolaint was accomplished within three years from the date on

9
which the first complaint was filed. FirstCall and Rule 41(e) are,

therefore, inapplicable to this case.

We hold that the statute of limitations and the statute of

repose are tolled by the commencement of an action, and that an

action is commenced when a complaint is filed. Section
27-2-102(l) (b), MCA. &e&o Rule 3, M.R.Civ.P. This interpretation

is consistent with the language of § 27-2-205, MCA, and is

supported both by Montana case law, and by the case law of other

jurisdictions. See, e.g., Blasdel v. MontanaPower Co. (1982) , 196 Mont. 417,

426, 640 P.2d 889, 894 (holding that "the statute of limitations

was tolled when the first complaint was filed"); Kingv. Lujan (N.M.

1982), 646 P.2d 1243, 1244 (holding that the "[fliling of the
complaint is commencement of the action which generally tolls the

applicable statute of limitations").

In this case, the statute of limitations was tolled on
April 16, 1992, when Webb filed her complaint with the District

Court. The question is whether Webb's voluntary dismissal of the

suit without prejudice on August 3, 1993--one day after she filed

her chiropractic legal panel application--had the effect of

nullifying the prior tolling of the statute. We previously held in

Tietjenv. Heberlein (1918), 54 Mont. 486, 488, 171 P. 928, 928, that

where an action is voluntarily dismissed prior to the commencement

of a second action, the first action does not toll the statue of
limitations. That decision was based on the predecessor of

Montana's "saving statute," which provides that if an action is

10
commenced within the applicable statute of limitations, and is
thereafter terminated "in any other manner than bv voluntary
discontinuance," the plaintiff may commence a new action for the
same cause after the expiration of the time so limited and within
one year after such a termination. Section 27-Z-407, MCA (emphasis
added).
Tietjen is not dispositive of the tolling issue raised in this

case, however. In the first place, Tietjen was neither a medical nor

chiropractic malpractice case, but rather, was an action brought to
recover the amount of a succession tax. Furthermore, Tieijen was

decided in 1918, years prior to 1977 when the Montana Medical Legal
Panel Act was enacted, and years prior to 1989, when the Montana
Chiropractic Legal Panel Act was enacted, each Act with its
respective tolling provisions. Sections 27-6-702 and 27-12-701,
MCA. The same is true of the predecessor to § 27-2-407, MCA, which
was originally enacted in the 1870s.
Accordingly, neither the statute nor our decision could have
accounted for the tolling provisions of the Panel Acts. While Tietjen

correctly applied the "saving statute" to the facts at issue in
that case, given the legislature's enactment years later of

specific tolling provisions uniquely applicable to medical and
chiropractic malpractice cases pending before the malpractice
panels, we conclude that neither § 27-2-407, MCA, nor our decision
in Tietjen, is controlling based on the facts here. Rather,

§§ 27-f-702 and 27-12-701, MCA, specifically provide for tolling

11
while a claim is pending before the respective panels, and it is

those statutes which must be given controlling effect in a medical

or chiropractic malpractice case where, as in the instant case, the

facts implicate both the statute of repose, § 27-2-205, MCA, and
the panel tolling statutes.

Applying the panel tolling statutes compels the conclusion

that, in a medical or chiropractic malpractice case, if a

plaintiff's first complaint was timely filed but is voluntarily
dismissed while the case is pending before a malpractice panel in

proceedings which name the original defendants as necessary

parties, §§ 27-2-702 and 27-12-701, MCA, provide, as to those

originally named defendants, a continuous tolling "bridge" between

the first complaint and the subsequently filed complaint, assuming

the latter is timely filed under the Panel Acts and names the

original defendants.

Furthermore, Montana's "saving statute" does not address the

situation that presents itself in this case in which Webb's cause

of action was tolled by a separate action filed before the

dismissal of the original suit. When the second action is filed

prior to dismissal of the original suit, we hold that the commenced

action continues to pend, and so long as the second forum has

jurisdiction over the action the statute of limitations remains

tolled, even after the voluntary discontinuance of the first

action. Only by allowing and encouraging consolidation of actions

in this manner can the objectives of avoiding duplication and

unnecessary expense (which are recognized in both the Montana

12
Medical Legal Panel Act at 5 27-6-702, MCA, and the Chiropractic
Legal Panel Act at 5 27-12-701, MCA) be accomplished.
A similar situation was addressed by the Fourth Circuit Court

of Appeals in Louisiana in Levyv. &'telly (La. App. 1973), 277 So. 2d

194. In Levy, the plaintiff filed suit in state court on

September 27, 1967, within one year of his January 1967 accident,
as required by the Louisiana statute of limitations. While the
state court action was pending, he filed a second suit in federal
district court on November 22, 1968, more than one year from the
date of his accident. The state court action was dismissed without
prejudice in January 1972, and the plaintiff refiled in state court
on March 17, 1972. The state trial court, however, dismissed the
second action as barred by the applicable one-year statute of
limitations.
On appeal, the plaintiff contended that the original state
court action tolled the statute of limitations, and therefore, that
the subsequent suit in federal court, filed while the first case
was pending, was timely. The plaintiff also asserted that, because
the statute of limitations remained tolled while the federal action
was pending, the second state court action was not barred by the
statute of limitations. The defendants, however, maintained that
the first tolling period had been nullified by the dismissal of the
first state court action, and therefore, that the statute of
limitations had run prior to the date on which the plaintiff filed

13
the federal court suit. The defendants relied on a Louisiana
statute, La. Civ. Code Ann. art. 3519, which provided:
If the plaintiff in this case, after having made his
demand, abandons, voluntarily dismisses, or fails to
prosecute it at the trial, the [tolling of the statute of
limitations] is considered as never having happened.
The Louisiana Court of Appeals, however, construed the statute
to apply only to suits filed after a plaintiff abandoned,
voluntarily dismissed, or failed to prosecute his case; in the
situation where a plaintiff had filed a second suit prior to that
abandonment, the court held that the statute was continuously
tolled. Levy, 277 So. 2d at 195-96.

In effect, Louisiana's statute, La. Civ. Code Ann. art. 3519,
parallels our prior interpretation of Montana's "saving statute,"
in Tietjen , 171 P. 928, where this Court held that when an action is

voluntarily dismissed prior to the commencement of a second action,
the first action did not toll the statute of limitations.

Therefore, we conclude that the language and reasoning of Levy and

its progeny are persuasive. See Tug Alamo, Inc. v. Electronic Service, Inc. (La.

App. 1973), 275 So. 2d 419; Pj@erv.Correa (La. App. 1994), 640 So. 2d

281, rev’donothergrounds (La. 1994), 643 So. 2d 1228

We note also that Levy’s holding was recently affirmed in the

medical malpractice context by Pfiffner, 640 So. 2d 281, in which the

Fourth Circuit Court of Appeals in Louisiana held that:
A second suit which was filed after the original
suit was dismissed or abandoned is considered as never

14
 having been filed and prescription1 is applicable. To
the contrary, a second suit filed before the original
suit was abandoned or dismissed interrunts prescription.
. . . . If the second suit is filed prior to abandonment
of the first suit, the interruption nrovided bv the first
suit continues until the second suit is filed and
interruotion continues after the suit is dismissed
because the second suit is pendinq.

Pfiffne~, 620 So. 2d at 285 (citations omitted; emphasis added).

Contrary to the concerns expressed in the dissenting and

concurring opinions, we are not adopting Louisiana law. We are
merely citing the Levy and Pj?&er decisions as examples of what has

been done in one other jurisdiction under similar circumstances.

Furthermore, whether the source of Louisiana law is the Napoleonic

Code or the Code of Hammurabi is really irrelevant. The fact is

that Louisiana has 183 years of case law which interprets its

statutes and which is as valid for purposes of persuasion as the

case law of any other jurisdiction within the United States.

Furthermore, we have not hesitated in the past to cite authority

from Louisiana where we felt that the decisions of that state's

courts were persuasive. The Montana Supreme Court has relied on

Louisiana case law no fewer than sixty-six times since 1945. The

Court has, in fact, relied heavily on Louisiana case law in several

instances. See, e.g., Patton V. Madison County (1994), 265 Mont. 362, 368,

877 P.2d 993, 996 (holding that a Louisiana Supreme Court case "is

instructive as to the rationale for not extending standing rights

IIn Louisiana, the term "prescription" I' is very nearly
equivalent to what is elsewhere expressed by 'limitation of
actions,' or rather, the 'bar of the statute of limitations."'
Black’s Law Dictionary 1183 (6th ed. 1990) .

15
to those persons not a part of the subdivision," and quoting
extensively from that case); IowaMutualIns.Co.v.Davis (1988), 231 Mont.

166, 171-72, 752 P.2d 166, 170 (holding that a Louisiana Second
Circuit Court of Appeals decision was "persuasive" on the issue of
whether mandatory liability insurance protection prohibits the
exclusion of named drivers from coverage under a motor vehicle
liability policy) ; In m Estate of McLaughlin (1969), 154 Mont. 318,

321-22; 462 P.2d 882, 884 - 85 ; and Interstate Mfg. Co. Y. Interstate Products Co.

(X965), 146 Mont. 449, 454, 408 P.2d 478, 481.
We conclude that based on the facts in this case, all of the
objectives of the statute of repose have been accomplished. Webb's
original application was filed within five years from the date
which respondents contend was her "date of injury," and therefore,
within the time period the Legislature has deemed reasonable. upon
receipt of that application, the panel director notified
respondents of Webb's claim. See § 27-6-305, MCA. Webb's applica-

tion or complaint has been, at all times since that date, pending
before a tribunal with authority to entertain her claim, and in a
manner that tolled the statute of limitation and repose. Webb's
summons and complaint were served within three years from the date
Oil which the original timely complaint was filed, and the
respondents demonstrate no prejudice from the chronology of events.
To require more would elevate form over substance.
We therefore hold that Webb commenced this action within five
years from the date of her injury, as required by § 27-2-205, MCA.

16
We further hold that the statute of limitations was thereafter

continuously tolled, and therefore, that the District Court erred

when it granted respondents' motions for summary judgment. Because
we hold that Webb's complaint is not barred by the five-year

statute of repose found at § 27-2-205, MCA, we reverse the District

Court's order and remand for further proceedings.

We concur:

Chief Justice

Justices

17
Justice Karla M. Gray, specially concurring.

I concur in the result the Court reaches and in the analysis
and application of Montana law on which it relies to reach that
result. I write separately to note my disagreement with that
section of the Court's opinion which discusses Louisiana statutory
and case law.
Specifically, I do not agree that m addresses a similar
situation since, unlike the case before us, it involved a second
suit filed before the first suit was abandoned. Nor do I find the
language or reasoning of m and its progeny "persuasive." I will
not repeat here the cogent discussion regarding the Court's use of
Louisiana law in general, and m in particular, set forth in
Justice Erdmann's dissent. Suffice it to say that I agree with
that discussion.
Notwithstanding my disagreement with the inclusion of the w
section in the Court's opinion, however, I join in the result the
Court reaches because it is my view that the Court properly
analyzes and applies Montana law to reach that result. For that
reason, it also is my view that the Court's Lew discussion is
dicta because it is unnecessary to the resolution of the issue
before us, which is fully and properly reached on the basis of
Montana law.
Justice Charles E. Erdmann dissenting.

In reversing the District Court, the majority holds that

Webb's December 13, 1993, complaint for an injury which occurred on

October 7, 1986, was not time-barred.' The majority allows Webb

to "bridge" an untolled period of time and therefore nullifies the

five-year statute of repose. This "bridge" is not supported by
either Montana precedent or relevant Montana statutes. Despite

this lack of legal support, the "bridge" will undoubtedly see a
good deal of traffic in years to come as otherwise time-barred

plaintiffs find it a useful detour.

The running of the applicable limitation period in a

malpractice claim is tolled upon receipt of an application for

review by the director of the medical legal panel. Section

27-6-702, MCA. The statute does not begin running again until

thirty days after the panel's final decision. In the present case,

the statute was tolled on September 9, 1991, when Webb filed her

application for review with the medical legal panel--four years,

eleven months, and two days after her date of injury. The medical

legal panel reached its final decision on March 18, 1992. Thus,

had nothing tolled the statute, the statute would have began

running again on April 17, 1992, and the five-year statute of

repose would have therefore expired in mid-June 1992.

'The majority reaches no legal conclusion as to the "date of
injury" but assumes, for purposes of the opinion, that the date of
injury was 1986.

19
 Webb claims, and the majority so holds, that when she filed
her initial district court complaint on April 16, 1992, the
limitation period was again tolled pending resolution of the

complaint. Furthermore, the majority holds that Webb's voluntary

dismissal of the complaint on August 3, 1993, did not nullify any

tolling effect that the complaint had. The majority states that

the complaint was still pending on August 2, 1993, when Webb filed

her application for review with the chiropractic legal panel and
the statute again remained tolled during the pendency of that

action. The majority therefore determined that Webb's second

district court complaint, filed on December 13, 1993, within thirty

days after the chiropractic legal panel's final decision, was not

time-barred. Webb was originally injured in May 1986. BY
constructing this bridge, the majority has allowed the filing of a

complaint on December 13, 1993, almost one and one-half years after

the five-year statute of repose expired.

Under Montana's "saving statute" and prior precedent, the

first complaint failed to toll the statute of limitations. The

defendants were never served with the April 16, 1992, complaint and

they were therefore not placed on notice that Webb had commenced

legal action against them. Webb should not now be allowed to claim

that the statute was tolled by simply filing the complaint. The

majority's reliance on Blasdel v. Montana Power Co. (1982), 196

Mont. 417, 640 P.2d 889, for the proposition that the statute is

tolled when the first complaint is filed, is misleading. In

Blasdel the complaint was in fact served on the defendants and the

20
issue was whether the complaint tolled the statute of limitations
for subsequent amendments which were determined to relate back to

the original complaint.

Even if the first complaint initially had the effect of

tolling the statute, Montana law is clear that once it was
dismissed its tolling effect was nullified. In Tietjen v.

Heberlein (1918), 54 Mont. 486, 171 P. 928, we interpreted

Montana's "saving statute" (presently codified at 5 27-2-407, MCA)
and held that where an action is voluntarily discontinued prior to

the commencement of a second action, the first action does not toll

the statute of limitations. Here, Webb voluntarily dismissed her

April 16, 1992, complaint prior to commencing her December 13,

1993, action. Thus, the statute was not tolled by the 1992
complaint and her 1993 complaint was time-barred.

The majority mixes apples and oranges when it attempts to

distinguish Tietien by stating that it was decided prior to the

enactment of the Medical and Chiropractic Legal Panel Acts and

their respective tolling provisions. Our holding in Tietjen that

the tolling effect of a properly filed first cause of action is

nullified when it is later voluntarily dismissed remains vital

today. While in Tietien we relied on the version of § 27-2-407,

MCA, which predated the Medical and Chiropractic Legal Panel Acts,

the relevant language that a plaintiff may commence a new action

within one year after the original action is terminated "in anv

other manner than bv a voluntary discontinuance" remains in the
current version of the "saving statute." (Emphasis added.)

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 Section 27-l-101, MCA, states that U [jludicial remedies are
such as are administered by the courts of justice or by judicial

officers . . . .I' Section 27-l-102, MCA, divides judicial remedies

into two classes--"actions" and

former as "an ordinary proceeding in a court of justice . .'I and

further stating that " [el very other remedy is a special

proceeding." There is no indication that the legislature intended

the term "action" in 5 27-2-407, MCA, to apply to proceedings
brought under the Medical and Chiropractic Legal Panel Acts. The

majority, however, has done just that.

Finally, I disagree with the majority's reliance on and

adoption of Louisiana law. While the courts of Louisiana are

extremely competent in construing and interpreting Louisiana

statutes, it must be remembered that Louisiana is the only state

which does not follow the English common law, but rather relies on

the Napoleonic Code for its legal traditions and interpretations.
Not only is the terminology different, Louisiana's entire legal

tradition is different from Montana's and we should be extremely

reluctant to adopt Louisiana case law as controlling authority in

Montana. This is particularly true where we have both Montana case

law and statutes which directly address the issue under

consideration.

The majority notes that this Court has relied on Louisiana

case law no fewer than sixty-six times since 1945 as support for

its reliance on Louisiana authority in this case. Since 1945 this

Court has issued over 10,500 opinions and its reliance on Louisiana

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law in only 6 percent of those cases certainly reflects this

Court's reluctance to rely on Louisiana authority.

The Louisiana statute (La. Civ. Code Ann. art. 3519) cited by

the majority provides:

If the plaintiff in this case, after having made his
demand, abandons, voluntarily dismisses, or fails to
prosecute it at the trial, the [tolling of the statute of
limitations] is considered as never happened.

Rather than supporting the majority's position, the plain language

of the statute supports our interpretation of the Montana saving

statute made in Tietien. Nevertheless, the Louisiana court, in

Levy v. Stelly (La. App. 1973), 277 So.2d 194, construed the

statute to hold that if a second suit is filed prior to the

abandonment of the first suit, the tolling effect of the first suit

continues. The facts of the present case are distinguishable from

m in that Webb did not file a second suit prior to voluntarily

dismissing her initial complaint. Filing applications with the

medical and chiropractic legal panels is not analogous to filing

district court complaints and the majority's reliance on the

rationale in Levy is not persuasive.

Five years from October 7, 1986, is October 7, 1991. Giving

Webb credit for the period of time the statute was tolled while her

claim was under review by the medical legal panel, the five-year

statute of repose expired in June 1992. In building this

"continuous tolling bridge" the majority has subverted the

legislature's intent in adopting the five-year statute of repose

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for medical malpractice cases and provided a road to the courthouse
which neither Montana statutes nor prior cases would allow.

I would affirm the District Court's determination that Webb's

December 13, 1993, complaint was time-barred by 5 27-2-205, MCA.

m2x
Justice

Chief Justice J. A. Turnage joins in the foregoing dissenting
opinion.

Chief Justice

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