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Nixon v. State9/30/2005
covery rule must be made as a necessary step in that resolution." Id. We clarified, however, that the discovery rule did not operate retroactively:
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 pre-existing statutes of limitation are not revived by either discovery rule.
Id. (emphasis added).
The majority does not address the principles of law discussed in Frideres, and certainly does not undertake to apply them to this case. I think this law must be applied to fully and fairly analyze the State's defense. As the following discussion explains, these principles require that the district court's denial of the State's motion to dismiss must be reversed.
C. Sovereign Immunity and Statute of Limitations When Tort Committed
To determine whether the plaintiffs' claims are barred by a pre-existing statute of limitations, we must go back in time. I begin with the state of the law when the alleged torts were committed.
The plaintiffs seek to recover damages for torts allegedly committed by the State in 1939. As the majority acknowledges, at that time the State was immune from suit. See Montandon v. Hargrave Constr. Co., 256 Iowa 1297, 1299-1300, 130 N.W.2d 659, 660 (1964). In addition, even had the plaintiffs been able to sue the State in 1939 or the years immediately following, their claims would have been subject to the two-year statute of limitations for injuries to the person. See Iowa Code § 11007 (1939). Moreover, that two-year limitations period would not have been tolled by the plaintiffs' failure to discover their claims against the State. See McGrath v. Dougherty, 224 Iowa 216, 223, 275 N.W. 466, 470-71 (1937). The only discovery rule recognized by the Iowa courts at that time was the statutory discovery rule for equitable fraud actions found in Iowa Code section 11010 (1939). Therefore, the plaintiffs' claims here were barred by the statute of limitations in 1941, unless there is some statutory enactment that could validly revive them. Apparently, the majority believes that statutory enactment is the State Tort Claims Act.
D. State Tort Claims Act and Its Retroactivity Provision
The State Tort Claims Act was enacted in 1965, more than twenty-three years after the plaintiffs' claims were time barred. See 1965 Iowa Acts ch. 79 (codified at Iowa Code ch. 25A (1966), now Iowa Code ch. 669 (2003)). This act partially abrogated the immunity of the State for its torts. See id.; Harden v. State, 434 N.W.2d 881, 883 (Iowa 1989) ("The Iowa Tort Claims Act . . . acts as a limited waiver of sovereign immunity."). The abrogation was not without its limits, however. It is clear from an examination of the act that the legislature did not intend to authorize suit against the State for any and all of its torts whenever committed. In defining the "claims" that fell within the scope of the immunity waiver, the legislature expressly stated that "only such claims accruing on or after January 1, 1963" were included. 1965 Iowa Acts ch. 79, § 2 (codified at Iowa Code § 25A.1(5) (1966)). This retroactivity provision was supplemented by a statute of limitations requiring that suit be filed "within two (2) years after such claim accrued or prior to July 1, 1967, whichever is later." Id. § 13 (codified at Iowa Code § 25A.13 (1966)). Applying proper rules of statutory construction to these provisions, I find the conclusion inescapable that the legislature did not intend to incorporate a discovery rule in the State Tort Claims Act in 1965. Therefore, the act did not purport to revive
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