 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
FRIDERES v. SCHILTZ11/22/1995
d by the expiration of time under the prior statute of limitations. [540 NW2d Page 267]
Consistent with our case law and these general principles, we hold section 614.8A does not apply retroactively to revive claims that have been barred by an applicable statute of limitations in existence prior to the enactment of section 614.8A. In determining whether a claim has been barred by an applicable statute of limitations, however, application of the discovery rule must be made as a necessary step in that resolution.
In Claus v. Whyle, 526 N.W.2d 519 (Iowa 1994), we applied the discovery rule in interpreting section 614.8A. In that case the victim of sex abuse was thirteen at the time of the incident. Id. at 521. On September 20, 1989 she married. She "discovered" the 1987 abuse by remembering in a flashback which occurred in the latter part of 1990 or the first part of 1991 after she had become a legal adult through marriage. Id. Section 614.8A was effective on July 1, 1990 and therefore applied to the date of "discovery" of the sexual abuse. Id. at 525. Ruling that section 614.8A applied we stated as follows:
As section 614.8A allows an adult to bring an action up until four years after discovery of sexual abuse, Beverly Jo is well within the statute of limitations of section 614.8A relative to the November 7, 1987 incident.
We, therefore, conclude that the trial court properly allowed Beverly Jo to bring an action against her father for the November 7, 1987 abuse and correctly rejected defendants' argument that the proper statutes of limitations for this incident were Iowa Code sections 614.1(2) and 614.8.
Id. The discovery by the injured party in Claus in late 1990 or 1991 of the injury and the causal relationship between the injury and the sexual abuse, occurred after the effective date of the statute, section 614.8A, which was July 1, 1990.
Our common law discovery rule thus applies to claims filed prior to the enactment of section 614.8A, and the statutory discovery rule of section 614.8A applies to actions filed thereafter. Claims barred by preexisting statutes of limitation are not revived by either discovery rule. Whether sufficient discovery by a victim has occurred to initiate the running of a statute of limitations is a question of fact to be determined on a case-by-case basis.
Other states have reached the same conclusion that barred claims cannot be revived. For instance, in D.P. v. M.J.O., 266 Ill. App.3d 1029, 203 Ill.Dec. 950, 955, 640 N.E.2d 1323, 1328 (1994), the Illinois Court of Appeals explained
We agree that had this section been time barred in 1990, the enactment of the amendatory act under § 13-202.2 would not have been effective to revive an otherwise time barred action.
In Illinois , as in the majority of jurisdictions, the right to set up the bar of the statute of limitations, after the statute has run, as a defense to a cause of action, has been held to be a vested right which cannot be taken away by statute, regardless of the nature of the cause of action.
Nor would the language of § 13-202.2(e) indicate a legislative intent to give retroactive application to the provisions of the amendatory act in face of the constitutional infirmaties which Illinois has recognized in attempting to revive a time barred action.
Id.; accord Chance v. American Honda Motor Co., 635 So.2d 177 (La. 1994); Hopkins v. Lincoln Trust Co., 233 N.Y. 213, 135 N.E. 267 (1922).
Thus, our answer to certified question one is "No."
III. Due Process and Equal Protection
Because of our answer to certified question one, we need not answe
Page 1 2 3 4 5 6 7 8 9 Iowa Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|