                IN THE SUPREME COURT OF IOWA
                           No. 67 / 06-0094

                         Filed August 17, 2007

BRITTANI RUCKER,

      Appellant,

vs.

HUMBOLDT COMMUNITY SCHOOL
DISTRICT, HUMBOLDT HIGH SCHOOL,
and ROBERT HOFFMAN, BAND DIRECTOR,

      Appellees.


      Appeal from the Iowa District Court for Humboldt County, Kurt L.

Wilke, Judge.



      Plaintiff appeals summary judgment for defendant in personal

injury case. AFFIRMED.



      Frederick W. James of The James Law Firm, P.C., Des Moines, for

appellant.


      Stephen G. Kersten of Kersten Brownlee Hendricks, L.L.P., Fort

Dodge, for appellees.
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STREIT, Justice.

      Sometimes it pays to be a kid, but in this case it does not. When

Brittani Rucker was sixteen years old, she collapsed and suffered injuries

while participating in a parade with her high school’s marching band.

Approximately two-and-a-half years later she filed suit against Humboldt

Community School District, Humboldt High School, and the band

director alleging their negligence caused her injuries.   The defendants

filed a motion for summary judgment arguing Rucker’s claim was

untimely because she was required to file her claim within two years of

her injury. Rucker countered Iowa Code section 614.8 (2005) extended

the time to file her claim to one year after her eighteenth birthday. The

district court ruled in favor of the defendants, holding section 614.8 does

not apply to claims against municipalities under chapter 670. We affirm.

      I.    Facts and Prior Proceedings

      Rucker was a member of the Humboldt High School Band.            On

May 27, 2002, Rucker marched with the band in the Humboldt Memorial

Day Parade. It was hot and muggy. Following the band’s performance at

the band shell in Bicknell Park, the band members were instructed to

remain at attention and listen to the guest speeches.       During one of

these speeches, Rucker was injured when she collapsed and fell forward

landing on her chin and face.    She was sixteen years old at the time.

Rucker turned eighteen on February 5, 2004.

      Rucker filed this lawsuit on January 31, 2005. She alleged Robert

Hoffman, the band director, was negligent in failing to supply water to

the band members and failing to recognize the signs of heat stroke, heat

exhaustion, and/or dehydration. She alleged the Humboldt Community
                                    3

School District and Humboldt High School were liable for Hoffman’s

negligent acts under the doctrine of respondeat superior.

      The defendants (hereafter collectively “Humboldt”) asserted the

affirmative defense of the statute of limitations in their amended answer.

Humboldt then moved for summary judgment.               Humboldt argued

Rucker’s claim was time barred because she failed to file it within two

years of her injury. Rucker countered her claim was timely because she

filed it within one year after her eighteenth birthday. The district court

granted Humboldt’s motion for summary judgment, holding Iowa Code

section 614.8, which tolls the statute of limitations for minors, does not

apply to actions against municipalities. Rucker appealed.

      II.    Standard of Review

      We review orders granting summary judgment for correction of

errors at law.   Green v. Racing Ass'n of Cent. Iowa, 713 N.W.2d 234,

238 (Iowa 2006) (citing Otterberg v. Farm Bureau Mut. Ins. Co., 696

N.W.2d 24, 27 (Iowa 2005)).

      “A motion for summary judgment should only be granted if,
      viewing the evidence in the light most favorable to the
      nonmoving party, ‘the pleadings, depositions, answers to
      interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to
      any material fact and that the moving party is entitled to a
      judgment as a matter of law.’ ”

Id. (quoting Otterberg, 696 N.W.2d at 27).

      III.   Merits

      The issue before us is whether Iowa Code section 614.8, which

tolls the statute of limitations for minors in some actions, applies to the

present case. For the reasons that follow, we conclude it does not.

      Iowa Code chapter 670 is the exclusive remedy for torts against

municipalities and their employees.     See Iowa Code § 670.4; City of
                                      4

Cedar Falls v. Cedar Falls Cmty Sch. Dist., 617 N.W.2d 11, 18 (Iowa

2000) (“Suits against the government may be maintained only to the

extent immunity has been expressly waived by the legislature.”).

Humboldt Community School District and Humboldt High School are

“municipalities” as defined by Iowa Code section 670.1(2).           Rucker’s

claims against Hoffman are also subject to Iowa Code chapter 670

because Hoffman is being sued in his capacity as a municipal employee.

See Iowa Code § 670.2.

      Iowa Code section 670.5 provides a time period within which a

plaintiff must file notice and bring suit against a municipal defendant:

      Every person who claims damages from any municipality . . .
      on account of any wrongful death, loss or injury within the
      scope of section 670.2 or section 670.8 or under common
      law shall commence an action therefor within six months,
      unless said person shall cause to be presented to the
      governing body of the municipality within sixty days after the
      alleged wrongful death, loss or injury a written notice stating
      the time, place, and circumstances thereof and the amount
      of compensation or other relief demanded. . . . No action
      therefor shall be maintained unless such notice has been
      given and unless the action is commenced within two years
      after such notice. The time for giving such notice shall
      include a reasonable length of time, not to exceed ninety
      days, during which the person injured is incapacitated by
      the injury from giving such notice.

      We have previously held two portions of section 670.5 and its

predecessor, section 613A.5, unconstitutional. In Harryman v. Hayles,

257 N.W.2d 631 (Iowa 1977), we held the requirement that an

incapacitated plaintiff must sue within ninety days of an injury was a

denial of equal protection. Harryman, 257 N.W.2d at 634–35. We held

an   incapacitated   individual   shall   have   sixty   days   following   the

termination of the incapacity to bring suit. Id. at 635. We left the rest of

the statute intact. Id. In Miller v. Boone County Hospital, 394 N.W.2d
                                     5

776 (Iowa 1986), we held the statute’s requirement that a plaintiff

commence an action within six months after injury unless notice was

provided to the municipality within sixty days was also a denial of equal

protection. Miller, 394 N.W.2d at 780. There, we said “because section

613A.5 [now 670.5] is unconstitutional, we hold that Iowa Code chapter

614 is the applicable statute of limitations for all actions arising under

chapter 613A [now 670].” Id. at 781.

      In a later case, we clarified that our Miller opinion struck down

only the provision requiring commencement of an action within six

months if notice is not given within sixty days.      Clark v. Miller, 503

N.W.2d 422, 425 (Iowa 1993).       In Clark, we held a plaintiff suing a

municipality under chapter 670 still had the option of providing “timely

notice” to the municipality.    Id.; see Perkins v. Dallas Center-Grimes

Cmty. Sch. Dist., 727 N.W.2d 377, 381 (Iowa 2007) (stating “[t]imely

notice, we believe, means notice within a reasonable time after the

injury”).   Under such a scenario, the limitation for filing suit under

chapter 670 is “two years after timely notice of the claim has been given.”

Clark, 503 N.W.2d at 425. If a plaintiff does not give timely notice of his

claim to the municipality, then the applicable statute of limitations is

found in chapter 614.    Miller, 394 N.W.2d at 781.     Iowa Code section

614.1(2) requires a plaintiff to file suit within two years from the date of

injury.

      In the present case, Rucker concedes she did not provide notice

(timely or otherwise) to Humboldt. Thus, she was required to file suit

within two years from May 27, 2002, the date of her injury. She did not

do so. Consequently, her claim is barred.
                                     6

      Rucker argues our holding in Miller incorporated chapter 614’s

tolling provision for minors with respect to claims against municipalities.

Section 614.8(2) provides “[t]he times limited for actions in this chapter

. . . are extended in favor of minors, so that they shall have one year from

and after attainment of majority within which to commence an action.”

Under this theory, Rucker’s claim, which she filed on January 31, 2005,

was timely because she had until February 5, 2005 to bring suit.

      We recently rejected this argument in Perkins. There, we said:

      [N]othing in Miller or any of our other cases has indicated
      that the tolling provision was intended to be read into
      section 670.5. In Conner v. Fettkether, 294 N.W.2d 61, 63
      (Iowa 1980), we said the tolling provision of section 614.8 is
      “an extension, not a limitation,” so Miller’s reference to the
      limitation provisions of chapter 614 would necessarily
      exclude section 614.8(2). Moreover, we held in Harden v.
      State, 434 N.W.2d 881, 884 (Iowa 1989), that “the tolling
      provisions of section 614.8 do not apply to statutes of
      limitation outside of chapter 614. Section 614.8 states that
      it applies to the ‘times limited for actions herein,’ and is,
      therefore, limited by its own language to chapter 614 . . . .”

Perkins, 727 N.W.2d at 380. In short, we held “[t]he Iowa legislature has

never indicated any intent to incorporate a tolling provision in chapter

670, and we decline[d] to do so by relying on the broad language of

Miller.” Id. at 381. We see no reason to revisit our holding in Perkins.

See McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (noting “[w]e do

not overturn our precedents lightly and will not do so absent a showing

the prior decision was clearly erroneous”). Iowa Code section 614.8 does

not save Rucker’s claim.

      In Perkins, we noted “section 670.5 ha[d] not been amended to

reflect the holdings in our cases of Harryman (decided in 1977) and Miller

(decided in 1986). . . . We respectfully urge[d] the legislature to examine

the statute and clarify its present status in view of our rulings.” Perkins,
                                     7

727 N.W.2d at 381 n.1.      Shortly thereafter, the legislature did amend

section 670.5. It now states:

      Except as provided in section 614.8, a person who claims
      damages from any municipality or any officer, employee or
      agent of a municipality for or on account of any wrongful
      death, loss, or injury . . . shall commence an action therefor
      within two years after the alleged wrongful death, loss or
      injury.

2007 Iowa Acts, S.F. 384, § 5. The legislature simplified the statute by

removing the notice requirement. It also changed the statute so that the

tolling provision for minors found in section 614.8 now applies to

municipal tort claims. Likewise, section 614.8(2) was amended so that it

now reads “the times limited for actions in this chapter, or chapter . . .

670 . . . are extended in favor of minors, so that they shall have one year

from and after attainment of majority within which to file a complaint

. . . .” Id. § 2 (emphasis added). These amendments do not change the

outcome in this case because they only apply to claims “arising out of an

alleged death, loss, or injury occurring on or after July 1, 2007.” Id. § 6.

      IV.   Conclusion

      Rucker’s claim against Humboldt is barred by the statute of

limitations because she did not file her claim within two years of the date

of her injury.   The tolling provision for minors found in section 614.8

does not apply to claims brought under chapter 670 for injuries

occurring before July 1, 2007.

      AFFIRMED.

      All justices concur except Wiggins, Hecht, and Appel, JJ., who

dissent.
                                     8

                   No. 67 / 06-0094, Rucker v. Humboldt Community School

WIGGINS, Justice (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 statute 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 “[f]ailure 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.
                                      9

      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.
