 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
VENARD v. WINTER11/23/1994
or remedial rather than substantive." Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 1993). In Hantsbarger, we recognized that the legislative intent behind section 668.11 was to "provide certainty about the identity of experts and prevent last minute dismissals when an expert cannot be found." Id. (citation omitted). Here, Venard found experts but did not say so until after the deadline had passed.
If, as Winter suggests, the legislature intended a relationship between rule 215 and section 668.11, it could easily have said so. [524 NW2d Page 168]
As Venard points out, nothing in section 668.11 requires a dismissal of any action for a party's failure to designate experts. The only penalty the section spells out is that the undesignated or late designated experts cannot testify.
Even if we were to accept Winter's contention that Venard dismissed his first action to escape the consequences of a failure to designate experts in time, it would not matter. The motive of the dismissing party plays no part in a voluntary dismissal under rule 215. Under the rule, Venard was entitled to dismiss the first action without prejudice for any reason. The district court erred in concluding otherwise.
III. Conclusion.
In sum, we hold that Iowa Code section 614.1(4) — the five-year statute — governs this legal malpractice case. We affirm that part of the district court's ruling denying Winter's motion to dismiss on this ground.
We also hold that Venard had an absolute right under rule 215 to dismiss without prejudice his first legal malpractice action against Winter despite Venard's failure to designate expert witnesses within the time allowed under section 668.11.
We reverse that part of the district court's ruling sustaining Winter's motion to dismiss Venard's petition on this ground. We remand for further proceedings consistent with this opinion.
AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.
|