Charles Furnald v. Anthony Hughes and Emcasco Insurance Company

IN THE SUPREME COURT OF IOWA

No. 10–0180

Filed September 30, 2011

CHARLES FURNALD,

Appellant,

vs.

ANTHONY HUGHES and

EMCASCO INSURANCE COMPANY,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Warren County, William H.

Joy, Judge.

On further review, plaintiff argues the district court and court of

appeals erred in holding that Iowa Code section 614.10 (2009) is

inapplicable when a plaintiff voluntarily dismisses an action without first

seeking a continuance or delay in the underlying action. AFFIRMED.

David A. Hirsch of Harding Law Office, Des Moines, for appellant.

Jon A. Vasey of Elverson, Vasey & Peterson, L.L.P., Des Moines, for

appellee Hughes.

C. Scott Wormsley of Bradshaw, Fowler, Proctor, and Fairgrave,

P.C., Des Moines, for appellee EMCASCO.

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APPEL, Justice.

This case requires that we consider the scope of Iowa’s savings

statute that continues the deadline imposed by the statute of limitations

for six months when “the plaintiff, for any cause except negligence in its

prosecution, fails therein.” Iowa Code § 614.10 (2009). In this case, the

plaintiff brought a personal injury action arising out of an automobile

accident. The plaintiff voluntarily dismissed the action eleven days prior

to trial in order to further develop expert testimony on the extent of

permanent injuries caused by the accident. The plaintiff then refiled the

action nearly two months later. The defendant sought to dismiss on the

ground that the plaintiff was not entitled to protection of the savings

statute. The district court granted summary judgment to the defendant,

holding Iowa’s savings statute inapplicable under the facts of the case.

The plaintiff appealed, the court of appeals affirmed, and we granted

further review.

The question posed on appeal is whether the voluntary dismissal of

the plaintiff’s claim under the circumstances of this case meets the

savings statute requirement that it “fails” without “negligence in its

prosecution.” For the reasons described below, we conclude that the

plaintiff’s claim does not meet the requirements of the savings statute

and that the district court properly granted summary judgment for the

defendant.

I. Factual and Procedural Background.

The plaintiff, Charles Furnald, and defendant, Anthony Hughes,

were involved in an automobile accident in July 2006. Furnald filed a

timely personal injury lawsuit against Hughes arising out of the accident.

Furnald also timely filed an underinsured/uninsured claim against

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EMCASCO Insurance Company. The district court set a trial date of

April 14, 2009.

On April 3, 2009, eleven days prior to the scheduled trial, Furnald

voluntarily dismissed his claims without prejudice. Furnald’s counsel

left two telephone messages with opposing counsel advising him of the

dismissal and his intent to refile the action. Furnald’s counsel did not

file a motion for continuance of the trial, and he did not seek consent of

opposing counsel regarding the dismissal. He acted unilaterally.

On June 29, 2009, Furnald refiled the action. Hughes’s answer

raised the affirmative defense that the action was barred by the two-year

statute of limitations established in Iowa Code section 614.1(2). Hughes

then filed a motion for summary judgment based on the statute of

limitations defense. In the papers supporting the motion, Hughes

asserted that the savings clause of Iowa Code section 614.10 was not

available to Furnald because “negligence in prosecution was the sole

cause of the ‘failure’ of the prior lawsuit.”

Furnald resisted. He claimed that Iowa Code section 614.10

permits a unilateral, voluntary dismissal when the plaintiff’s medical

condition “continued to deteriorate” after the filing of the action. In

preparing for trial, Furnald’s counsel reviewed December 2008 medical

records in February 2009 and determined that additional medical

examinations were necessary to determine if future medicals should be

part of Furnald’s claim. Furnald’s counsel stated that, at the time of

dismissal, Furnald was undergoing additional medical workups to

determine the extent of injuries. Furnald notes that, while an August

2007 medical examination gave him a zero percent impairment rating, a

medical examination on April 29, 2009, indicated that he had an eight

percent whole person impairment as a result of the accident. The gist of

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Furnald’s position was that, because his physical condition was

deteriorating and the nature of his injuries evolving, he could voluntarily

dismiss his claim in order to better develop his damages claim. 1

Hughes responded that the plaintiff has the burden of showing

lack of “negligence in the prosecution” of the underlying lawsuit. Citing

Pardey v. Town of Mechanicsville, 112 Iowa 68, 83 N.W. 828 (1900),

Hughes argued that to voluntarily dismiss a suit after the statute of

limitations had run without seeking a continuance constitutes negligence

in the prosecution.

The district court granted summary judgment in Hughes’s favor.

The district court noted that Furnald’s counsel failed to seek a

continuance and failed to consult with opposing counsel about a

continuance or delay in trial. Citing three older Iowa cases, the district

court noted that, under these circumstances, Furnald was not compelled

to voluntarily dismiss the action as required under Iowa case law.

II. Standard of Review.

Summary judgment rulings are reviewed for correction of errors at

law. See Iowa R. App. P. 6.907; Travelers Indem. Co. v. D.J. Franzen, Inc.,

792 N.W.2d 242, 245 (Iowa 2010). Summary judgment is appropriate

when the moving party “affirmatively establish[es] the existence of

undisputed facts entitling that party to a particular result under

controlling law.” Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d

751, 756 (Iowa 1999). Although the burden is usually on the moving

party to show the absence of a material fact, Wright v. Am. Cyanamid Co.,

599 N.W.2d 668, 670 (Iowa 1999), we have held that the burden of

1Furnald does not claim that the statute of limitations should be tolled based

upon estoppel or any other equitable theory. See James M. Fischer, The Limits of

Statutes of Limitation, 16 Sw. U. L. Rev. 1, 8–14 (1986) (discussing tolling of statute of

limitations on equitable grounds).

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showing entitlement to relief under Iowa’s savings statute falls on the

plaintiff, Sautter v. Interstate Power Co., 563 N.W.2d 609, 610 (Iowa

1997).

III. Discussion.

A. Concept of Savings Statutes. Savings statutes are as old as

statutes of limitations. When the first statute of limitations was enacted

in England in 1623, it was accompanied by a savings clause. Gaines v.

City of New York, 109 N.E. 594, 595 (N.Y. 1915). Today, many states

have enacted a version of a savings clause in their own versions of the

statute of limitations. Iowa’s savings clause dates to our early days of

statehood. See Iowa Code § 1668 (1851) (statute nearly identical to Iowa

Code section 614.10 (2009)).

The purpose of a savings statute is to prevent minor or technical

mistakes from precluding a plaintiff from obtaining his day in court and

having his claim decided on the merits. Gen. Accident Fire & Life

Assurance Corp. v. Kirkland, 356 S.W.2d 283, 285 (Tenn. 1962); William

D. Ferguson, The Statutes of Limitation Saving Statutes 56–58 (1978)

[hereinafter Ferguson]. The concept generally seems clear enough. For

example, substantial argument can be made that a timely but highly

contested claim that is ultimately dismissed for lack of subject matter

jurisdiction, personal jurisdiction, venue, or for some arcane pleading or

other procedural defect, should not leave a plaintiff without a day in

court because of the expiration during the pendency of the action by the

statute of limitations.

At the same time, while it is important to provide plaintiffs with a

meaningful day in court, savings statutes are not ordinarily designed to

swallow entirely the ordinary restrictions of a statute of limitation.

Statutes of limitation embrace weighty policies of certainty and ensure

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that trials occur when witnesses’ memories are fresh and nontestimonial

evidence is still available. See Order of R.R. Telegraphers v. Ry. Express

Agency, Inc., 321 U.S. 342, 348–49, 64 S. Ct. 582, 586, 88 L. Ed. 788,

792 (1944). The need to strike a proper balance between the competing

policies of providing a plaintiff with a meaningful opportunity to be heard

while providing a defendant with the certainty and stability afforded by a

statute of limitations has been an issue confronting legislatures and the

courts for decades.

Whether a voluntary dismissal at the request of the plaintiff is the

kind of failure that allows the plaintiff to bring a new action within the

period of time specified by a savings statute is a subject of controversy.

See generally C.C. Marvel, Annotation, Voluntary Dismissal or Nonsuit as

Within Provision of Statute Extending Time for New Action in Case of

Dismissal or Failure of Original Action Otherwise than upon the Merits, 79

A.L.R.2d 1290 (1961) (collecting cases). The answer depends upon the

particular wording of the applicable savings statute and the judicial gloss

placed upon those words.

B. Approaches Under Other State Savings Statutes to

Voluntary Dismissals.

1. Rule of construction. Many cases from other jurisdictions

suggest that savings statutes are to be regarded as remedial and liberally

construed to serve the purpose of affording a diligent plaintiff the

opportunity to renew a suit that was dismissed on grounds other than

the merits. See, e.g., Gosnell v. Whetsel, 198 A.2d 924, 927 (Del. 1964);

Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995); see also Smith v.

Stratton, 835 P.2d 1162, 1165 (Alaska 1992). In holding that an

involuntary dismissal did not disqualify a plaintiff from seeking relief

under the statute, Justice Cardozo declared that the purpose of the

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savings statute “is not to be frittered away by any narrow construction.”

Gaines, 109 N.E. at 596. The rule of liberal construction, however, does

not provide reviewing courts a license to rewrite the terms of the statute.

See McCoy v. Montgomery, 259 S.W.3d 430, 434 (Ark. 2007) (holding

service must be attempted notwithstanding liberal interpretation of

statute); Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 653 N.E.2d 235, 240

(Ohio 1995) (stating party seeking to invoke savings statute must meet

statutory criteria notwithstanding liberal construction).

2. State savings statutes expressly addressing voluntary

dismissals. In a number of states, savings statutes directly address the

issue of whether a plaintiff may voluntarily dismiss an action and avail

himself of the benefit of the savings provision. The savings statutes in

Georgia, Tennessee, and Virginia explicitly allow application of the

savings statute when the “plaintiff discontinues or dismisses” the action,

whenever a “judgment or decree is rendered against the plaintiff upon

any ground not concluding the plaintiff’s right of action,” and to a

“voluntary nonsuit.” See Ga. Code Ann. § 9-2-61(a) (West, Westlaw

through 2011 Reg. Sess.); Tenn. Code Ann. § 28-1-105(a) (West, Westlaw

through 2011 1st Reg. Sess.); Va. Code Ann. § 8.01-229(E)(3) (West,

Westlaw through 2011 Reg. Sess. & 2011 Special Sess. I, ch. 1). In

contrast, savings statutes in Montana, New York, Oregon, Pennsylvania,

and Rhode Island do not apply to actions “voluntarily dismissed,” to

“voluntary discontinuance[s],” or to “voluntary nonsuits.” See Mont.

Code Ann. § 27-2-407 (Westlaw through 2011 laws effective through

July 1, 2011 & 2010 ballot measures); N.Y. C.P.L.R. § 205(a) (McKinney,

Westlaw through L.2011, ch. 1–54, 58, 63–96, 98–108); Or. Rev. Stat.

Ann. § 12.220(1) (West, Westlaw through 2011 Reg. Sess., ch. 733); 42

Pa. Cons. Stat. Ann. § 5535(a)(2)(ii) (West, Westlaw through 2011 Acts 1–

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75); R.I. Gen. Laws Ann. § 9-1-22 (West, Westlaw through 2010 Sess.,

ch. 321). Finally, there are statutes that allow plaintiffs who voluntarily

dismiss claims to seek the benefit of savings statutes under certain

circumstances. For example, while the Nebraska savings statute

generally does not allow voluntary dismissals to obtain the benefit of the

statute, the legislature has expressly provided for an exception for cases

voluntarily dismissed as the result of a loss of diversity in federal court.

See Neb. Rev. Stat. Ann. § 25-201.01(2) (West, Westlaw through 2010 2d

Reg. Sess.); see also Ariz. Rev. Stat. Ann. § 12-504(A) (West, Westlaw

through 1st Reg. Sess. & 3d Special Sess. of the Fiftieth Legislature)

(applying to actions voluntarily dismissed by court order). These

statutes, which expressly address the issue of voluntary dismissals,

demonstrate that the question of the relationship between savings

statutes and voluntary dismissals has drawn considerable state

legislative attention.

3. Cases in other states involving savings statutes with Iowa-type

language. The cases with the most potential for instruction for us, of

course, are cases in which the state savings statutes do not expressly

address the question of voluntary dismissals but apply only when the

plaintiff’s original cause of action “fails” or does not amount to a claim

otherwise defeated or avoided as a matter of form. A brief review of some

of the cases that fall into this category offers insight into the nature of

the debate animating the state courts as they consider the proper scope

of their savings statutes.

An Indiana court held long ago that a claim that is voluntarily

dismissed does not “fail” under its savings statute. See Pa. Co. v. Good,

103 N.E. 672, 673–74 (Ind. App. 1913). The rationale in Good was that,

in order for a claim to “fail,” it must be defeated by a source other than

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the action of the plaintiff. See Good, 103 N.E. at 674. At the time of the

Good decision, a number of state supreme courts, including the Iowa

Supreme Court, had arrived at a similar interpretation of their savings

statutes. See, e.g., Archer v. Chi., Burlington & Quincy Ry., 65 Iowa 611,

613–14, 22 N.W. 894, 894–95 (1885); Robinson v. Merchants’ & Miners’

Transp. Co., 19 A. 113, 114–15 (R.I. 1889) (voluntary abandonment not

an action “abated,” “avoided,” or “defeated”); Hayes v. Stewart, 23 Vt. 622

(1851) (voluntary dismissal not an action “otherwise defeated or avoided

. . . for any matter of form”).

The Indiana Court of Appeals affirmed its traditional approach in

the case of Kohlman v. Finkelstein, 509 N.E.2d 228, 232 (Ind. Ct. App.

1987). Other state courts have followed a similar course. See Baker v.

Baningoso, 58 A.2d 5, 8–9 (Conn. 1948) (affirming older precedent that

voluntary dismissal does not qualify under statute as claim “otherwise

avoided or defeated . . . for any matter of form”); Gray v. Ahern, 9 A.2d

38, 40–41 (R.I. 1939) (same).

On the other hand, other states, such as Kansas and Oklahoma,

have taken a different approach. In both Kansas and Oklahoma,

fountainhead interpretations of their state savings statutes held the

requirement that an action “fails” was satisfied through voluntary

dismissal of the action. McWhirt v. McKee, 6 Kan. 412, 419 (1870);

Wilson v. Wheeler, 115 P. 1117, 1117 (Okla. 1911). In McWhirt, the court

reasoned that the cause of the failure—why the case was dismissed—was

not relevant as long as there was a failure to obtain the object of the suit

and the failure was not on the merits. McWhirt, 6 Kan. at 419. The

approach that a case “fails” when it is voluntarily dismissed has

continued in more recent Kansas and Oklahoma cases. See Smith v.

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Graham, 147 P.3d 859, 868 (Kan. 2006); Hamilton ex rel. Hamilton v.

Vaden, 721 P.2d 412, 418 (Okla. 1986).

While the above courts have held to their long standing precedent,

the Ohio Supreme Court has departed from its original view as to what

constitutes a failure under Ohio’s savings statute. Originally, the Ohio

Supreme Court held that a voluntary dismissal did not satisfy the

requirements of Ohio’s savings statute. Siegfried v. N.Y., Lake Erie &

W. R.R., 34 N.E. 331, 332 (Ohio 1893). Ohio courts followed the Siegfried

approach until 1982. See, e.g., Beckner v. Stover, 247 N.E.2d 300, 302–

03 (Ohio 1969); Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 167 N.E.2d

774, 777 (Ohio 1960).

In 1982, the Ohio Supreme Court reversed course. In Chadwick v.

Barba Lou, Inc., 431 N.E.2d 660, 663–64 (Ohio 1982), the Ohio Supreme

Court reexamined the holding of Siegfried and its progeny. The Ohio

Supreme Court determined that because of the adoption of the

provisions of the rules of civil procedure that control voluntary

dismissals, it was no longer necessary to narrowly define the phrase

“fails otherwise than upon the merits” in Ohio’s savings statute.

Chadwick, 431 N.E.2d at 665. As a result, the Ohio Supreme Court

abandoned the Siegfried line of cases and held that a case that is

voluntarily dismissed “fails” under Ohio’s savings statute. Id. A dissent

in Chadwick suggested that the mere adoption of new rules of procedure

was not a sufficient basis to change the traditional interpretation of the

savings statute. Id. at 666–67 (Krupansky, J., concurring in part and

dissenting in part).

C. Uniform Commercial Code Approach to Savings Statute.

The Uniform Commercial Code (UCC) contains a version of the savings

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statute. 2 See U.C.C. § 2-725(3), 1C U.L.A. 566 (2004). Iowa has adopted

this provision. See Iowa Code § 554.2725(3). Under the UCC provision,

voluntary discontinuance of the underlying action and dismissal for

failure to prosecute are not bases for extending the ordinarily applicable

UCC statute of limitations. U.C.C. § 2-725(3). This does not mean,

however, that the savings clause in the UCC has no meaning. For

instance, the UCC cases indicate that when an underlying action is

dismissed for failure to join an indispensible party, or when an action is

dismissed for improper venue, the savings provisions of the UCC may be

applicable. D. & J. Leasing, Inc. v. Hercules Galion Prods., Inc., 429

S.W.2d 854, 856–57 (Ky. 1968) (improper venue); Hiles Co. v. Johnston

Pump Co. of Pasadena, Cal., 560 P.2d 154, 156 (Nev. 1977) (indispensible

party). The UCC provision is limited to breach of contract actions for the

sale of goods, however, and does not generally apply in personal injury

actions.

D. Iowa Law Regarding Voluntary Dismissals Under Savings

Statute. We begin with the actual words of the Iowa savings statute.

Iowa Code section 614.10 provides:

If, after the commencement of an action, the plaintiff,

for any cause except negligence in its prosecution, fails

therein, and a new one is brought within six months

thereafter, the second shall, for the purposes herein

contemplated, be held a continuation of the first.

2UCC section 2-725 provides:

(3) Where an action commenced within the time limited by

subsection (1) is so terminated as to leave available a remedy by another

action for the same breach such other action may be commenced after

the expiration of the time limited and within six months after the

termination of the first action unless the termination resulted from

voluntary discontinuance or from dismissal for failure or neglect to

prosecute.

U.C.C. § 2-725(3), 1C U.L.A. 566 (2004).

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Iowa Code § 614.10. The statute itself does not expressly consider the

consequence of voluntary dismissals. At the same time, however, the

statute is not open-ended like some other states. It is expressly limited

to situations where a case “fails” without “negligence in its prosecution.”

See id.

Although there have been a couple dozen cases under Iowa’s

savings statute, none of them mention the need for liberal construction

of the statute. Instead, we have emphasized the need for plaintiffs to

provide “strict” proof that they were not negligent in the prosecution of

the original actions. Ryan v. Phoenix Ins. Co. of Hartford, Conn., 204

Iowa 655, 660, 215 N.W. 749, 751 (1927). Strict proof of lack of

negligence is perhaps not necessarily inconsistent with an otherwise

generous approach to the statute. Nonetheless, the ambience of our

cases suggests a fairly focused approach. See Boomhower v. Cerro Gordo

Cnty. Bd. of Supervisors, 173 N.W.2d 95, 98 (Iowa 1969) (Becker, J.,

dissenting) (noting narrow reading afforded to Iowa’s savings statute). In

any event, even a rule of liberal construction does not necessarily provide

a basis for overruling established precedent regarding the statutory

requirements of Iowa’s savings statute. See Baker, 58 A.2d at 8 (stating

liberal construction does not bring voluntary dismissal within the scope

of savings statute).

The first voluntary dismissal case involving the savings statute is

Archer. In Archer, the plaintiff originally brought his action in federal

court, but voluntarily dismissed it believing that he could not obtain a

fair trial in federal court. Archer, 65 Iowa at 613, 22 N.W. at 895. The

plaintiff then attempted to refile his claim in state court. Id. at 612, 22

N.W. at 894.

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In Archer, the court refused to apply the savings statute to allow

the refiled claim. Id. at 613, 22 N.W. at 895. The Archer court noted “a

voluntary dismissal under compulsion” may be a failure under the

statute. Id. at 612–13, 22 N.W. at 894. Specifically, the Archer court

stated that “it is possible” that a plaintiff might not be ready to try a case

due to no negligence on his part and yet “be unable to obtain a

continuance.” Id. at 612, 22 N.W. at 894–95. But the Archer court then

asked this question: “[S]uppose the plaintiff voluntarily dismisses the

action, for any reason, but not under any compulsion whatever, can it be

said that he has failed in the action?” Id. at 613, 22 N.W. at 895. The

Archer court stated that if the plaintiff failed to prepare his case and

dismissed it for that reason, he would clearly be negligent. Id. Applying

these principles, the Archer court held that dismissal because the

attorney believed his client would not receive a fair trial in federal court

was an insufficient ground to come within the statute. Id.

We again addressed the issue of whether a plaintiff who voluntarily

dismissed a case could refile the action under the savings statute in

Pardey. In this case, the plaintiff claimed that she dismissed the action

because her witnesses were induced into drinking alcohol to the point of

intoxication, which prevented the plaintiff from calling them to testify.

Pardey, 112 Iowa at 70, 83 N.W. at 828. The plaintiff did not request a

delay or continuance. Id. at 71, 83 N.W. at 829.

Citing Archer, the Pardey court ruled against the plaintiff. Id. The

Pardey court concluded that the plaintiff’s failure to seek a continuance

or delay in the proceedings rendered her dismissal “voluntary, not

compulsory.” Id. As a result, the plaintiff’s dismissal of the case “was

negligence in its prosecution.” Id.

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The Pardey court thus tended to combine the elements of “failure”

and “negligence.” See id. Under Pardey, a “failure” does not occur when

there are other potential procedural options available to give the plaintiff

relief; when there are other potential procedural options of relief

available, it is negligence for a party not to pursue them. Id.

The next case dealing with the application of the savings statute to

a voluntary dismissal is Ceprley v. Inc. Town of Paton, 120 Iowa 559, 95

N.W. 179 (1903). In Ceprley, the plaintiff dismissed the action at the

close of testimony. Ceprley, 120 Iowa at 560, 95 N.W. at 179. The

plaintiff asserted that the dismissal was necessary because the

defendant offered unexpected evidence of contributory negligence that

could not have been anticipated prior to trial. Id. at 560–61, 95 N.W. at

180.

The Ceprley court rejected the plaintiff’s argument. Id. at 561, 95

N.W. at 180. The court noted that a slight delay in the trial of the cause,

or a continuance if need be, were available to resolve the problem. Id.

The Ceprley court stated that “[d]iligence required that the plaintiff

should have endeavored in one of these two methods, or in any other way

open to him, to avoid the necessity of dismissing his action.” Id. at 561–

62, 95 N.W. at 180.

Another case involving an effort to invoke the savings statute after

a voluntary dismissal is Weisz v. Moore, 222 Iowa 492, 265 N.W. 606

(1936). In Weisz, the plaintiff’s counsel had written letters to defense

attorneys seeking a trial date, but received no response. Weisz, 222 Iowa

at 499, 265 N.W. at 610. Then, the plaintiff’s counsel received a call

from the trial judge informing him that the trial would begin the next

day. Id. The plaintiff’s lawyer advised the judge that he lived 150 miles

from the place of trial and that his client lived 250 miles away and that,

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as a result, he could not put on his case the next day. Id. The judge

refused to change the date. Id. Counsel called opposing counsel seeking

agreement to a delay, which was refused. Id. The plaintiff’s attorney

again called the judge seeking arrangements to postpone the trial, which

the trial court denied. Id. At this point, the plaintiff’s attorney advised

the judge that he would be forced to dismiss the case. Id. at 500, 265

N.W. at 610.

The Weisz court held that the savings statute applied to the

plaintiff’s second action. Id. The court noted there was no evidence in

the record that the plaintiff intended to unduly delay trial; rather, the

plaintiff sought a brief delay because he was advised of the trial date

without sufficient advance notice to allow him to attend and present his

case. Id. “Under these circumstances,” the Weisz court explained, it

could not “be said that there was a voluntary dismissal without any

compulsion, because the plaintiff had not filed a normal motion for a

continuance before dismissing his case.” Id.

Since 1932, there has been one additional case dealing with the

application of the savings statute to a case where some of the defendants

were voluntarily dismissed. In Tull v. Honda Research & Development,

Ltd., 469 N.W.2d 683, 684 (Iowa 1991), the plaintiffs originally brought

an action in Polk County against four corporate defendants and an

individual arising out of personal injuries resulting from an accident

involving an all terrain vehicle. The plaintiffs settled with all of the

corporate defendants. Tull, 469 N.W.2d at 684. The remaining

individual defendant, a nonresident of Polk County, sought to dismiss

the action for improper venue. Id. After the district court denied the

motion, this court granted leave to file an interlocutory appeal. Id. at

685.

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On appeal, this court determined that venue was no longer proper

with respect to the remaining individual defendant. Id. The court

determined that the dismissal of the corporate defendants defeated venue

as to the nonresident defendant as a matter of law. Id.; see Iowa Code

§ 616.20. Although venue was no longer proper, the court held that the

plaintiffs were entitled to the benefit of the savings statute because they

were not negligent in settling their claims against the corporate

defendants. Tull, 469 N.W.2d at 687.

E. Academic Commentary Regarding Application of Savings

Statutes to Voluntary Dismissals. The leading academic commentary

on savings statutes generally is William D. Ferguson’s treatise, The

Statutes of Limitation Saving Statutes (1978) [hereinafter Ferguson]. This

comprehensive volume surveys the history of savings statutes and

proceeds to examine hundreds of cases under the various state savings

statutes, including those from Iowa.

Ferguson generally argues that savings statutes are designed to

allow plaintiffs to proceed on the merits and not be caught in procedural

snares. Ferguson at 312. While recognizing that a proper interpretation

of a savings statute depends upon the language adopted by the

legislature, he generally suggests that savings statutes should not be

used to provide plaintiffs with a tool to unilaterally override the

applicable statute of limitations. Id. at 287–88.

Ferguson generally cites with approval the Iowa cases related to

voluntary dismissals. Id. at 307–08. Further, he cites with approval

Central Construction Co. v. Klingensmith, 256 Iowa 364, 127 N.W.2d 654

(1964), which he states stands for the proposition that the use of

continuance procedures are a prerequisite to avoid the statute of

limitations. Ferguson at 326–27. According to Ferguson, it seems

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“eminently fair to hold that plaintiff must show reasons sufficient to

warrant a continuance or to defeat a dismissal rather than delaying

unduly the trial of the action and then compounding the delay by

starting anew.” Id. at 327. Ferguson, however, suggests that the proper

remedy in Weisz might have been to require the plaintiff to suffer an

adverse judgment, which would allow an appeal of the district court’s

decision denying a delay and continuance, rather than allowing the

plaintiff to invoke the savings statute. Id. at 308.

F. Analysis. At the outset, we find that our cases concerning the

application of the Iowa savings statute when the plaintiff voluntarily

dismisses the underlying claim have a unifying theme. The Archer–

Pardey–Ceprley line of cases stands for the proposition that for a

voluntary dismissal to be within the scope of the term “fails” under the

savings statute, there must be compulsion to the extent that a plaintiff’s

entire underlying claim has been, for all practical purposes, defeated.

See Ceprley, 120 Iowa at 561–62, 95 N.W. at 180; Pardey, 112 Iowa at

71, 83 N.W. at 829; Archer, 65 Iowa at 613, 22 N.W. at 895. If the claim

can still be pursued in the underlying action, it has not “failed” and it is

“negligence” in the prosecution of the case not to press the matter to

conclusion. See Ceprley, 120 Iowa at 561–62, 95 N.W. at 180; Pardey,

112 Iowa at 71, 83 N.W. at 829; Archer, 65 Iowa at 613, 22 N.W. at 894–

95.

We recognize that the Eighth Circuit in Davis v. Liberty Mutual

Insurance Co., 55 F.3d 1365, 1368 (8th Cir. 1995), suggested our recent

cases abandoned the requirement of “compulsion.” We do not agree.

Our review of the cases cited by the Eighth Circuit shows no indication of

a change in direction.

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In Klingensmith, we held a dismissal under Iowa Rule of Civil

Procedure 215.1 for failure to prosecute a case amounted to “negligence”

in prosecution, but we did not suggest that we were abandoning the

compulsion requirement of Archer, Pardey, and Ceprley. See

Klingensmith, 256 Iowa at 369–70, 127 N.W.2d at 657. Similarly, in

Wilson v. Wright, 189 N.W.2d 531, 534 (Iowa 1971), we held that an

attorney who failed to comply with certain technical pleading

requirements was not negligent when his action was involuntarily

dismissed. In Wilson, the compulsion requirement was plainly satisfied

by the involuntary dismissal. See Wilson, 189 N.W.2d at 534. Finally, in

Tull, we held that plaintiffs who voluntarily dismissed corporate

defendants in a multiparty action could obtain the benefit of the savings

statute when the dismissal of the corporate defendants, as a matter of

law, made venue improper with respect to the remaining defendant. Tull,

469 N.W.2d at 687. The dismissal in Tull was compelled in the sense

that the court’s holding, which concluded improper venue required

dismissal under Iowa Code section 616.20, precluded the plaintiffs from

proceeding against the remaining defendant in the original claim. See id.

None of these cases abandons the compulsion requirement under Archer,

Pardey, and Ceprley.

Nonetheless, even if the cases cited in Davis do not indicate an

abandonment of the compulsion requirement, the question remains

whether we should now abandon the Archer–Pardey–Ceprley approach.

If the Archer–Pardey–Ceprley line remains good law, the district court

judgment must be affirmed. In this case, Furnald plainly could have

sought a continuance or a delay as a remedy to the evolving medical

evidence. Indeed, our rules contemplate such a procedure. See Iowa R.

Civ. P. 1.911(1) (allowing a continuance “for any cause not growing out of

19

the fault or negligence of the movant, which satisfies the court that

substantial justice will be more nearly obtained”). But Furnald did not

follow this course. Instead, Furnald made a strategic choice to forgo

seeking a continuance or delay in the underlying action and took matters

into his own hands. Such strategic choices, however, are not the kind of

compulsion which awakens our savings statute under Archer, Pardey,

and Ceprley. If Furnald is to prevail in this case, we must abandon our

past precedents and adopt a new interpretation of the savings statute.

We decline to do so. It is, of course, true that the rules governing

the trial of cases have changed considerably over time and that some of

the abuses that might have been possible in 1885—such as midtrial

voluntary dismissals without prejudice and repetitive dismissal and

refiling of claims—are not generally allowed under today’s rules. See,

e.g., Iowa R. Civ. P. 1.943 (permitting voluntary dismissal up until ten

days before trial and providing that a second voluntary dismissal

constitutes an adjudication on the merits unless the court orders

otherwise in the interests of justice). Nonetheless, the creation of these

additional controls on the trial process do not cover all potential

situations and do not provide a firm basis for departing from the

established interpretation of our savings statute. The enactment of

additional tools of trial management that may tend to mitigate or even

eliminate some potential abuses does not accomplish an indirect

amendment of the savings statute.

Our approach does not gut the savings statute. For example, our

interpretation does not affect the classic situation in Tull where the

plaintiff properly files an action against multiple defendants but

subsequently settles with some defendants in a fashion that destroys

venue. See Tull, 469 N.W.2d at 687. Similarly, in Wilson, we recognized

20

that a plaintiff who has a claim dismissed based upon a legitimate

dispute regarding a procedural technicality may be able to invoke the

savings statute. See Wilson, 189 N.W.2d at 533–34.

We recognize that other jurisdictions have followed a different

path. As discussed above, sometimes the difference is a result of

different language choices by the legislature, and sometimes the

difference is the result of choices among interpretive options by courts.

The legislature may be fairly charged with knowledge of the smorgasbord

of varied approaches to savings statutes, contained both in legislative

enactments and in judicial decisions, of other states. See Rathje v. Mercy

Hosp., 745 N.W.2d 443, 459–60 (Iowa 2008) (relying on legislative and

jurisprudential trends among sister jurisdictions to determine legislative

intent). Further, while the legislature has reopened statute of limitations

questions in Iowa Code chapter 614 on occasion since the development

of our interpretive approach to the savings statute in 1885, there has

been no amendment to the savings statute to override our approach to

voluntary dismissals. When it comes to altering our traditional

approach, the legislature has shown no appetite to do so over the past

125 years. See Kohlman, 509 N.E.2d at 232 (declining to change

interpretation that voluntary dismissals are not within scope of savings

statute in part as a result of legislative inaction over seventy-five-year

period).

We, of course, reserve the right to modify or alter our statutory

interpretations. For example, we may depart from our precedents when

we are convinced that the prior statutory interpretations are erroneous,

where subsequent events reveal impracticability or lack of logic, or where

the interpretations are otherwise so flawed as to require correction. See

Rathje, 745 N.W.2d at 447.

21

We find no such problems, however, with the traditional

interpretation of our savings statute. Under the established Archer–

Pardey–Ceprley approach, the remedy offered by Iowa’s savings statute is

narrow and sharp, not broad and blunt. The notion that our savings

statute is designed to protect plaintiffs only from getting ensnared in

fatal technical procedural problems that cannot be avoided through due

diligence in the underlying litigation is not illogical or otherwise odd. The

approach has been followed in a number of states by statute or by

judicial decision, is consistent with the approach of the Uniform

Commercial Code, and has the support of a leading commentator on

savings statutes.

In short, we leave the law where we found it. We conclude, under

the circumstances presented in this case, the plaintiff was not entitled to

avail himself of the Iowa savings statute.

IV. Conclusion.

For the above reasons, the order of the district court granting the

defendant summary judgment in this matter is affirmed.

AFFIRMED.

All justices concur except Mansfield, J., who takes no part.