                                  No. 88-42

                 IN THE SUPREME COURT OF THE STATE OF MONTANA




CONNIE S. LIVINGSTON, a/k/a
CONNIE WADSWORTH,
                  Plaintiff and Appellant,
          -vs-
WILLIAM LIVINGSTON, EDWARD LIVINGSTON,
and FIREMAN'S FUND INSURANCE COMPANY,
                  Defendants and Respondents.




APPEAL FROM:      District Court of the Third Judicial District,
                  In and for the County of Powell,
                  The Honorable Ted L. Mizner, District Judge.
COUNSEL OF RECORD:
          For Appellant:
                   Deirdre Caughlan; Dunlap   &   Caughlan, Butte, Montana
          For Respondent:
                  Donald R. Lodders; Crowley, Haughey, Hanson, Toole &
                  Dietrich, Billings, Montana
                  James ~~I.Rommers,
                                   Landoe, Brown, Planalp & Kornmers, P.C.,
                  Bozeman, Montana

                                     Submitted on Briefs:      June 2, 1988
                                       Decided:      June 28, 1988

Filed:'   J Y $ ~8 19@


                                     Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      The plaintiff appeals from a decision of the District
Court of the Third Judicial District, Powell County, that her
claim in damages was barred by the statute of limitations,
§ 27-2-401 (I), MCA. We affirm.
      The plaintiff suffered a loss of vision in her left eye
on November 12, 1977, at which time she was approximately
twelve years, two months old. She was struck in the face by
glass from a window broken by her brother, William, at the
home of their father, Edward.        The injuries not only
destroyed the vision in her left eye, but also soon
thereafter forced surgical removal of the eye.      Plaintiff
became eighteen years old on September 8, 1983.
      On August 26, 1986, eight years and nine and one-half
months after the injury and two years and eleven and one-half
months after the plaintiff's eighteenth birthday, she filed a
complaint asking for damages from the defendants.
      The defendant-insurer filed a motion for summary
judgment on January 6, 1987, claiming inter alia, that the
statute of limitations had expired. Defense attorneys served
written notice on May 26, 1987 to clarify the record that
that motion had been filed on behalf of the brother and
father, not the insurance company. The District Court held a
hearing on the motion on October 15, 1987, and subsequently
ordered the complaint be dismissed because more than one year
had passed from the time plaintiff achieved majority to
filing of the complaint.
      Section 27-2-204, MCA, prescribes a limitation of three
years for commencement of an action for damages. At the same
time, S 27-2-401, MCA     (1985), permits that period of
limitation to be extended for one year after a minor attains
the age of majority:
           (1) If a person entitled to bring an
           action ...   is, at the time the cause of
           action accrues, either a minor, seriously
           mentally ill, or imprisoned on a criminal
           charge or under a sentence for a term
           less than for life, the time of such
           disability is not a part of the time
           limited   for commencing    the   action.
           However, the time so limited cannot be
           extended more than 5 years by any such
           disability except minority or, in any
           case, more than 1 year after the
           disability ceases.
      The issue in this case is whether a plaintiff whose
ordinary period of limitations would have run completely and
expired while she was under the disability of minority is
allowed an additional period of limitation (not to exceed
five years) upon her eighteenth birthday - is limited to an
                                          or
additional one year. We conclude that she is limited to one
year and hence plaintiff in this case had only until
September 8, 1984, her nineteenth birthday, to file a claim
for damages.
      Section 27-2-401 (I), MCA (1985), serves to toll the
applicable statute of limitations only until the plaintiff is
relieved of her disability. Smith v. Sturm, Ruger and Co.,
Inc. (1982), 198 Mont. 47, 49, 643 P.2d 576, 577; State ex
rel. Hi-Ball Contractors, Inc. v. District Court (19691, 154
Mont. 99, 105, 460 P.2d 751, 754.     The second sentence of
S 27-2-401 (1), MCA (1985), which included the apparently
contradictory time periods, applied only if the plaintiff had
been disabled for a full period of limitations. See, Smith,
643 P.2d at 577.    In the present case that second sentence
applied because the period of limitations is three years and
the plaintiff spent nearly five years, ten months under the
disability of minority.
      In this case the plaintiff had only one year after the
disability of minority ended to file her complaint.      This
result differs from Smith because in that case the damaged
plaintiff had suffered his injury two years, and ten months
before attaining the age of majority.     Because the entire
three-year period of limitations had not expired while he was
under a disability, the statute afforded him a full
three-year period of limitations after he reached majority.
Smith, 643 P.2d at 577. A concurring opinion perhaps states
the rule most clearly:
           [Tlhe statute of limitations applicable
           to a minor extends one year after that
           minor reaches majority qualified by the
           fact   that   the   normal   statute   of
           limitations cannot be shortened.       In
           other words, a minor is entitled to the
           regular statute of limitations which is
           applicable, but if that period of time
           has expired the minor is entitled to one
           year after reaching majority ...
Smith, 643 P.2d at 578 (Morrison, J., concurring; Sheehy and
                   .
Weber JJ. , joining)
      The Montana Legislature acted in 1987 to end the
confusion. It amended S 27-2-401 (1), MCA, as of October 1,
1987, to remove from the second sentence the clause imposing
a one-year limitation after cessation of the disability.
What remains is an exception to the statute of limitations
that allows extension of time for the enumerated disabilities
but not for more than five additional years.        Plaintiff
asserts that the spirit of this amendment plus the general
rule that the law favors rights of actions over limitations
is sufficient to revive her claim.     She fails, however, to
acknowledge    that  periods   of    limitations   are   "the
legislature's rough approximation of 'the point at which the
interests in favor of protecting valid claims are outweighed
by the interests in prohibiting stale ones.'"       Thiel v.
Taurus Drilling Ltd. 1980-11 (Mont. 1985), 710 P.2d 33, 37,
42 St.Rep. 1520, 1524; quoting Johnson v. Railway Express
Agency (1975), 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1722, 44
L.Ed.2d 295, 303.
       While the Legislature amended the statute in 1987 to
make it clearer and less ambiguous, it is clear that the
prior statute precluded this claim because the claim was not
filed in the year immediately following the plaintiff's
ascension to majority.      Plaintiff has not claimed any
disability attending her at that date and has not argued that
she was unaware of the claim until later. Indeed it would
appear from the nature of her complaint that she must have
known for almost nine years of her injury. The statute in
existence at the time she filed her complaint and at the time
the summary judgment motion was filed afforded her one year's
grace after majority to file her complaint. She failed to do
so; the Legislature's subsequent amendment of the statute
will not be construed to forgive her delinquency.
       Because we have decided that plaintiff's claim is
barred by the appropriate statute of limitations, we need not
address her second issue dealing with interfamilial tort
immunity.
      Affirmed.
We concur:
             /f
