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Rodenburg v. Lathrop12/12/2001
t 48. In this case, plaintiffs could have filed their negligence action alleging four breaches of duty, and then later amended the petition to include a fifth when the truth was revealed about how Hart obtained the weapon. See Pease v. Zazza, 295 N.W.2d 43, 49 (Iowa 1980).
Fraudulent Concealment
The Rodenburgs also claim the statute of limitation should be tolled based on a theory of fraudulent concealment. The root of this argument lies in the misrepresentations made by the defendant, Mark Lathrop, to federal investigators and Clifton Rodenburg personally, about how Hart obtained the gun used in the shooting. Fearing any association with Hart or the shooting, Lathrop lied to investigators by telling them that Hart had stolen the gun from his basement. Lathrop maintained this version of the events until he was slated to testify at Hart's criminal trial. Then, sometime between August 4, 1998 and August 17, 1998, the Rodenburgs learned that Lathrop was going to recant his original story. He would admit that he inadvertently left the gun and ammunition in the North Dakota hotel room where the parties were staying. Based on Lathrop's misrepresentation of the facts leading up to shooting, the Rodenburgs claim they were prevented from discovering their cause of action against the defendant. They argue that the statue of limitations should be tolled until August 4, 1998, when Lathrop revealed the truth.
Iowa case law recognizes that the statute of limitations should be tolled when a claim is fraudulently concealed from the plaintiff. Brown v. Public Employment Relations Bd., 345 N.W.2d 88, 96 (Iowa 1984) (citations omitted). Iowa Code section 614.1(2) is subject to the same exception. Like a plaintiff claiming protection under the aforementioned discovery rule, a plaintiff relying on the extraordinary circumstance of fraudulent concealment must prove the facts which the exception requires. To prove fraudulent concealment, a plaintiff must show: (1) that the defendant engaged in some affirmative act to conceal the cause of action from the plaintiff; and (2) that the plaintiff exercised reasonable diligence to discover the cause of action. Pride v. Peterson, 173 N.W.2d 549, 555 (Iowa 1970) (citations omitted). Consequently, the Rodenburgs' complaint will be deemed timely if they can prove that Lathrop's misrepresentation regarding how Hart obtained the gun concealed the entire negligence action until August 4, 1998, notwithstanding their due diligence to discover the facts on which they based their complaint.
The Rodenburgs are unable to provide this proof. Their negligence action against the defendant delineates five separate breaches of duty. Only one of the five was even arguably affected by the misrepresentations of the defendant. The remaining four alleged breaches were ripe for action no later than 1997. Therefore, we conclude the negligence action brought against Lathrop, alleging five separate breaches of duty, was not affected by fraudulent concealment. The general two-year statute of limitations under Iowa Code section 614.1(2) should apply and bar the Rodenbergs' claim. The district court properly found that the plaintiffs' action should be dismissed because it was initiated after the statute of limitations bar.
AFFIRMED.
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