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Nixon v. State9/30/2005
1965 when it passed the Iowa Tort Claims Act. At best, the State believes, matters were unsettled when the legislature passed the Act. See Chrischilles v. Griswold, 260 Iowa 453, 462-63, 150 N.W.2d 94, 100 (1967) (observing a trend in other jurisdictions to adopt the discovery rule and adopting the discovery rule in negligence actions) (citing Urie v. Thompson, 337 U.S. 163, 169-70, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 2d 1232, 1292 (1949)); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 812-13 (2d Cir. 1960); Polzin v. Nat'l Co-op. Refinery Ass'n, 266 P.2d 293, 297 (Kan. 1954); Johnson v. Caldwell, 123 N.W.2d 785, 791 (Mich. 1963); Dryden v. Omaha Steel Works, 26 N.W.2d 293, 295 (Neb. 1947); Rothman v. Silber, 199 A.2d 86, 92 (N.J. Super. 1964); Foley v. Pittsburgh-Des Moines Co., 68 A.2d 517, 535 (Pa. 1949); Ginkowski v. Ginkowski, 137 N.W.2d 403, 406 (Wis. 1965)). The legislature, it is urged, could only have meant to use the verb "to accrue" in its old-fashioned sense because we cannot assume it knew how other courts had interpreted other tort claims acts or how we might interpret it in the future.
This reasoning is flawed on several levels. At the most basic level, one wonders: What if the legislature hadn't repealed the sunrise provision? Would the State's argument have any merit? Surely not: there can be no question that if the legislature had not repealed the sunrise provision, the present definition of "to accrue," which incorporates the discovery rule, would not bar the plaintiffs' claims. Paradoxically, then, the State relies on repealed language which, even if it were still in force, would not bar the plaintiffs' claims.
It is apparently the mere fact of the repeal that matters so much to this analysis. The State focuses upon the repeal because the State believes it tells us something about what the legislature meant when it enacted the Iowa Torts Claims Act in 1965. See Doe, 251 N.W.2d at 501. (" n construing a statute we must be mindful of the state of the law when it was enacted"); see also Explanation of S.F. 376, 63d Gen. Assemb., Reg. Sess. (Iowa 1969) (stating that the language was repealed because it was "no longer necessary in view of the [two-year] statute of limitations"). The State thus attempts to freeze the meaning of the repealed statute to the meaning it allegedly had in 1965--even though there is no reported case attributing that meaning.
Even if we were to pretend it were sometime between 1965 and 1969 and assume the legislature intended to give the verb "to accrue" a single, immutable meaning for all time, it is more probable the legislature intended to incorporate the discovery rule in the original Iowa Tort Claims Act. The Act waived the State's sovereign immunity for those claims "accruing on or after January 1, 1963." 1965 Iowa Acts ch. 79, § 2(5) (emphasis added), repealed by 1969 Iowa Acts ch. 81, § 2. Notably, it does not waive the State's sovereign immunity for claims "happening on or after January 1, 1963" or "occurring on or after January 1, 1963." Surely the legislature knew how to use these verbs.
If we take a step back and look at the relevant statutory language in its entirety, the legislature demonstrated it knew there was a difference between "occur" and "accrue:"
"Claim" means any claim against the state of Iowa for money only, on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the state while acting within the scope of his office or employment, under circumstances where the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death, in accordance with the law of the
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