author: ECKRICH, Circuit Judge.

text:
    2008 SD 12
    FIRST NATIONAL BANK OF FT. PIERRE, Intervenor and Appellant, v. SOUTH DAKOTA STATE BANKING COMMISSION, Department of Commerce and Regulation, Division of Banking, and First Western Bank Sturgis, Appellee.
    No. 24291.
    Supreme Court of South Dakota.
    Argued Oct. 3, 2007.
    Decided Feb. 13, 2008.

      Brad A. Sinclair of Serkland Law Firm, Fargo, North Dakota, Frank L. Farrar, Britton, South Dakota, Randall B. Turner, Aberdeen, South Dakota, Attorneys for Appellant.
    Gerald P. Laughlin, John S. Zeilinger of Baird Holm L.L.P. Omaha, Nebraska, Thomas E. Lee of Schmidt, Schroyer, Moreno, Lee & Bachand Pierre, South Dakota, Attorneys for appellee.
   ECKRICH, Circuit Judge.

[¶ 1.] The South Dakota State Banking Commission, Department of Commerce and Regulation, Division of Banking (Commission) approved an application by First Western Bank, Sturgis (First Western) to establish a branch bank in Lead, South Dakota. The circuit court affirmed Commission’s decision. First National Bank of Ft. Pierre (First National) appeals.

[¶ 2.] We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 3.] The Commission is an administrative agency under the direction and supervision of the Department of Revenue and Regulation. SDCL 51A-2-2. Its duties include reviewing, investigating and approving or disapproving applications to establish branch banks. SDCL 51A-3-9; SDCL 51A-3-10; SDCL 51A-3-11.

[¶ 4.] First National operates a branch bank in Lead, South Dakota. First Western operates a branch bank in two locations in Deadwood, South Dakota. Wells Fargo Bank operates a branch bank in Lead. First Western applied to establish a branch bank in Lead to better serve its existing customers and attract new business.

[¶ 5.] First Western’s application obligated the Commission’s Director to perform a mandatory investigation and report upon the following:

(1) The character, reputation and financial standing of the organizers or incorporators and their motives in seeking to organize the proposed state bank;
(2) The character, financial responsibility, business experience and standing in the community of the prospective stockholders and of those proposed as directors of the bank;
(3) The need in the community where the bank would be located for banking or banking and trust facilities, or additional banking or banking and trust facilities as the case may be;
(4) The ability of the community to support the proposed bank, giving consideration to:
(a) The competition offered by existing banks;
(b) The banking history of the community;
(c) The opportunities for profitable employment of bank funds as indicated by the average demand for credit, the number of potential depositors, the volume of bank transactions, and the business and industries of the community, with particular regard for their stability, diversification and size; and
(d) If the bank is to exercise trust powers, the opportunities for profitable employment of fiduciary services;
(5) Such other facts and circumstances bearing on the proposed bank and its relation to the community as in the opinion of the director or the commission may be relevant;
(6) The adequacy of the capital structure of the proposed bank in relation to the amount of the anticipated business of the bank and the safety of prospective depositors.

SDCL 51A-3-9.

[¶ 6.] The Director’s report was forwarded to the Commission for its consideration. The Commission consists of five members appointed by the Governor. By law three Commission members must be officers or directors of a state or national bank. SDCL 51A-2-7. In this case, one of the Commission members, Paul Christen, recused himself because he and his wife have an interest in First Western. The Commission thereafter conducted the proceedings as a four-person body. SDCL 51A-2-11.

[¶ 7.] The Commission has the statutory duty to investigate First Western’s branch bank application, conduct a hearing, propose findings of fact, conclusions of law and after considering “the director’s findings and recommendations and all other available relevant information ... in its discretion approve or disapprove the application.” SDCL 51A-3-10; SDCL 51A-3-11.

[¶ 8.] First National intervened and objected to First Western’s application. The Commission conducted a contested hearing, heard lay and expert testimony, and received other evidence from both First Western and First National. Ultimately, the Commission voted to approve First Western’s application. The circuit court affirmed this decision.

[¶ 9.] First National appeals, raising two issues:

Whether the Commission’s decision to approve the application of First Western was clearly erroneous.
Whether the Commission’s failure, as a body, to recuse itself led to an unacceptable risk of bias.

STANDARD OF REVIEW

[¶ 10.] Our review of an administrative decision is controlled by SDCL 1-26-37. Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247. “When a circuit court has reviewed an administrative agency’s decision, we review the agency’s decision unaided by any presumption that the circuit court’s decision was correct.” Meligan v. Dept. of Revenue and Regulation, 2006 SD 26, ¶ 13, 712 N.W.2d 12, 17. The agency’s factual findings, including credibility determinations, are reviewed under the clearly erroneous standard. Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247. We will reverse those findings only if we are definitely and firmly convinced a mistake has been made. Id. Questions of law are reviewed de novo. Pauley v. Simonson, 2006 SD 73, ¶ 7, 720 N.W.2d 665, 667.

FACTS

[¶ 11.] Lead and Deadwood, “twin cities” geographically separated by mountain and valley, share common social, economic, educational and cultural features. The cities are not, however, identical twins. In recent history, their economic dissimilarities have grown more pronounced.

[¶ 12.] The advent of legalized gambling in the late 1980s brought dramatic growth to Deadwood. Deadwood caters to the gaming-tourist market. Often, especially during the summer, tourists crowd the streets and sidewalks of Deadwood. Commercial rooflines echo the rising casino trade rather than retail trade. Deadwood’s business investment and bank deposits reflect the pervasive influence of the gambling industry. Residential housing is scarce. Its workforce greatly exceeds its population.

[¶ 13.] On the other hand, during the rise of Deadwood’s economic fortunes, Lead’s economic prospects fell. Home-stake Gold Mine, once the largest employer and landowner in Lead, shuttered its mine and moved out. Jobs were lost, Lead’s population declined, businesses closed, and sales tax receipts declined. Multi-year highway construction on major highway arteries serving Lead limited access to this mountaintop town.

[¶ 14.] The Commission, after receiving evidence, hearing both lay and expert testimony, and considering the Commission Director’s report, found that Lead’s present economy and future prospects now appear brighter. Homestake real property is now available on the market. Homeowners, once captive to renting Homestake-owned residences and having no economic incentive to maintain their dwellings, are now investing in their homes. Substantial residential developments are underway in or in proximity to Lead.

[¶ 15.] The State of South Dakota has committed approximately $83,000,000 to converting the former Homestake Mine into an underground science lab. Lead is at the center of outdoor recreational activities given its proximity to the Mickelson Trail, cross-country and snowmobile trails, and ski slopes.

[¶ 16.] Deadwood’s shortage of residential housing has been Lead’s gain. Many people work in Deadwood but live in Lead. Twenty-eight new businesses or business owners have been added to Lead since 2003. Lead sales tax receipts have increased since 2003.

[¶ 17.] Since 2000 First Western Bank’s Deadwood branch originated approximately nine million dollars in loans and two million dollars in deposits from First Western customers in the Lead zip code. Overall, the Lawrence County economy is strong.

[¶ 18.] In other words, the Commission was presented with evidence to support its finding that First Western’s Lead customers would experience better customer service, Lead’s economic downturn is over, the business prospects are bright, and a need exists for a First Western branch bank in Lead.

ANALYSIS

[¶ 19.] The Commission’s discretion to disapprove a branch bank is not unfettered. Its findings of fact are subject to “clearly erroneous” judicial review. Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247. Additionally, SDCL 51A-3-9 requires the Commission to consider various statutory factors including the need for the branch bank in Lead, the ability of the community to support it, the competition, the banking history, average demand for credit, number of potential depositors, transaction volume and the businesses and industries of the community with particular regard for their stability, diversification and size.

[¶ 20.] “The statutory requirement is for the Commission to consider each of the factors in arriving at a decision based on the evidence as a whole.” Application of American State Bank, Pierre, 254 N.W.2d 151, 153 (S.D.1977).

[¶ 21.] Much of the evidence presented came through expert testimony proffered by both First Western and First National. The respective experts gave conflicting opinions. First National’s expert, Randy Steuffen, opined there was “no call for entry” for another bank in Lead. First Western’s expert, Dean Coddington, concluded the proposed branch “will serve a public need and advantage for the City of Lead.... Existing residents and businesses will have a third alternative for placing their deposits and obtaining credit ... the new branch will provide more convenient access for the relatively large number of First Western customers already living in Lead.”

[f 22.] First Western’s other expert, John Danforth, is a past senior vice-president and director of research for the Federal Reserve Bank of Minneapolis. His responsibilities included overseeing competitive analysis of bank mergers and acquisitions. Danforth testified solely to identify errors in Steuffen’s data calculations and methodology.

[¶ 23.] Steuffen utilized an analytical tool called the Herflndahl-Hirschman Index (HHI) to opine there was no “call for entry” into the Lead branch. The HHI is used by the Federal Trade Commission agencies and the U.S. Department of Justice to assess the impacts of mergers on market concentration. Danforth provided evidence that:

The HHI was not designed to be used in assessing the need or absence of need for additional banking facilities in a given area and, to the best of my knowledge and belief, there is no economic analysis to suggest that the Herflndahl-Hirschman Index provides any useful information regarding the need or absence of need for additional banking offices in the area for which this index is calculated.

Danforth identified other errors including Steuffen’s consistent miscalculation of the HHI.

[¶24.] Commission found Steuffen to be a less credible witness than Danforth, and his use of the HHI misleading. Commission was certainly entitled to make this credibility finding and based upon our review of the record we cannot say that it was clearly erroneous. Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247. In fact, our review of the record shows that Commission considered all of the statutory factors in making its decision. Moreover, its decision was backed by sufficient evidence, such that we are not definitely and firmly convinced a mistake has been made. Id. Commission’s decision is neither clearly erroneous nor an abuse of discretion.

[¶ 25.] First National’s second issue, Commission bias, is without merit. First National failed to object to the composition of the Commission during the administrative proceedings. “It is well settled that if objections are not raised before the administrative agency at the hearing, they are not preserved for appeal.” Matter of State of S.D. Water Management Board Approving Water Permit No. 1791-2, 351 N.W.2d 119, 122 (S.D.1984).

[¶ 26.] We affirm the order of the circuit court.

[¶ 27.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 28.] ECKRICH, Circuit Judge, for ZINTER, Justice, disqualified.

      . Paul Christen and his wife are the majority stockholders of the holding company which owns First Western Bank.


source: Caselaw Access Project

author: LARSON, Justice. WIGGINS, Justice,

license: Public Domain

text:
    Tamra K. MURTHA, an individual, and Tamra K. Murtha, as Natural Mother and Next Friend of Erin Murtha, a minor, Appellant, v. Steven CAHALAN, an individual d/b/a Surgical Affiliates, P.C.; Paul Keller, an individual d/b/a Radiology, P.C.; Breast Center West; Robert Kollmorgen, an individual d/b/a The Iowa Clinic West Lakes, L.L.C.; and Gerald Baker, an individual d/b/a The Iowa Clinic West Lakes, L.L.C., Appellees.
    No. 04-1727.
    Supreme Court of Iowa.
    Feb. 22, 2008.

      Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, for appellant.
    Thomas J. Joensen and Jack Hilmes of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees Steven Cahalan, Paul Keller, and Breast Center West.
    Stacie M. Codr and Michael H. Figen-shaw of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees Robert Kollmorgen and Gerald Baker.
   LARSON, Justice.

On September 5, 2003, Tamra Murtha sued the defendant medical providers for failure to properly diagnose and treat her breast cancer. The defendants moved for summary judgment, which the court granted on the basis the suit was barred by our medical-negligence statute of limitations, Iowa Code § 614.1(9) (2001). We reverse and remand.

I. Facts and Prior Proceedings.

Tamra Murtha discovered a lump in her left breast through self-examination in the summer of 1997. On June 20, 1997, a mammogram revealed no evidence of breast malignancy. Murtha was referred to Dr. Cahalan for further examination. On January 23, 1998, Dr. Cahalan physically examined Murtha, performed a fine-needle aspiration biopsy of the lump, and diagnosed the lump as a noncancerous, fibrocystic mass that was most likely fi-broadenoma, which is

[a] benign neoplasm derived from glandular epithelium, in which there is a conspicuous stroma of proliferating fibroblasts and connective tissue elements; commonly occurs in breast tissue.

Steelman’s Medical Dictionary (27th ed.2007) (online www.Stedmans.com). The pathology report provided to Dr. Ca-halan stated:

DIAGNOSIS:
BREAST, LEFT [thin needle aspiration biopsy]: Not within normal limits; but, no evidence of malignancy....

Dr. Cahalan provided these results to Murtha and her primary-care physician. Dr. Cahalan recommended that Murtha return in six months for a follow-up mammogram. On October 30, 1998, Murtha had a yearly mammogram revealing no definite abnormality. However, the radiologist recommended that an ultrasound or biopsy be performed to ensure the lump was not malignant. Murtha had a followup visit with Dr. Cahalan the next week to discuss the radiologist’s recommendations. Dr. Cahalan suggested the option of surgically removing the lump to alleviate any concerns Murtha may have about it in the future. Murtha declined to have the lump removed at that time and, for personal reasons, had no further involvement with Dr. Cahalan.

On October 15, 1999, Murtha had another yearly mammogram. Dr. Keller reviewed the mammogram, concluding that the findings were unremarkable. He recommended that Murtha complete a routine screening in one year. Within that year, on December 3, 1999, after being advised by her sister to request an ultrasound, Murtha met with Dr. Kollmorgen. An ultrasound was performed that day. Dr. Keller reviewed the results of the ultrasound, concluding the lump was a simple cyst. Dr. Kollmorgen agreed and recommended Murtha cut down on caffeine and take vitamin E.

On November 10, 2000, Murtha had a yearly mammogram revealing no evidence of malignancy. On November 15, 2000, she returned to Dr. Kollmorgen, who noted a breast irregularity and an abnormal mammogram, observing that the lump may have been slightly more prominent than the previous year. Dr. Kollmorgen recommended that Murtha continue yearly mammograms.

On December 4, 2001, Murtha had another mammogram. Dr. Kollmorgen had retired since Murtha’s last visit, so she was seen by Dr. Baker on December 7, 2001. Dr. Baker palpated the lump, was concerned, and performed a needle biopsy, noting that the area felt gritty, which could be a sign of cancer. This was communicated to Murtha during the exam. However, Dr. Baker doubted the accuracy of the biopsy results because the needle had passed through an artery during the procedure, contaminating the sample with blood. Dr. Baker recommended that the lump be removed, even though the results of the needle biopsy were inconclusive, because he was concerned that the lump was irregular. An excisional biopsy was scheduled for the following Friday. Mur-tha was notified that the needle biopsy was nondiagnostic or benign, and she rescheduled the excisional biopsy for January 4, 2002. On January 3, 2002, Murtha canceled the excisional biopsy to get a second opinion.

In April 2002 Murtha saw Dr. Beck, who agreed with Dr. Baker that the lump should be removed, though she did not seem overly concerned. On June 14, 2002, Dr. Beck performed an excisional left-breast biopsy. Further diagnostic testing revealed adenocarcinoma — breast cancer.

Murtha filed this action for damages against Drs. Cahalan, Keller, Kollmorgen, and Baker on September 5, 2003. Her suit alleged negligent treatment and care for misdiagnosis of the lump in her breast beginning in 1997.

II. Standard of Review.

Our review of a district court’s ruling on a motion for summary judgment is for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188 (Iowa 2004). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable minds can differ on how the issue should be resolved.” Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004). In reviewing the district court’s ruling, the evidence presented must be viewed in the light most favorable to the party opposing the motion for summary judgment. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000); Gen. Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). On appeal we “indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question.” Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

III. Iowa’s Medical Malpractice Statute.

Iowa Code section 614.1(9) is the statute of limitations governing medical malpractice cases. Under section 614.1(9), medical malpractice claims arising out of patient care must be brought “within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known ... of the existence of, the injury ... for which damages are sought.” Iowa Code § 614.1(9). As discussed at length in Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008) (filed today), the legislature’s enactment of section 614.1(9) implemented a statute of repose for medical malpractice cases and addressed our holding in Baines v. Blenderman, 223 N.W.2d 199 (Iowa 1974), that the statute of limitations for medical malpractice cases began to run when a cause of action is discovered. Our holding in Rathje clarifies our application of section 614.1(9). The statute of limitations for medical malpractice cases is triggered upon “actual or imputed knowledge of both the injury and its cause in fact.” Rathje, 745 N.W.2d at 461. Knowledge of the wrongfulness of the defendant’s conduct, however, is not required to commence the statute of limitations. Id.

In granting summary judgment in this case, the district court concluded that,

[o]nce Murtha was aware that a problem existed, a lump in her left breast, she had a duty to investigate even though she may not have had knowledge of the nature of the problem.... In this case, Murtha’s lawsuit was filed on September 5, 2003. There is no dispute of material fact when viewed in the light most favorable to Murtha, that she had inquiry notice of her symptoms of her “injury” long before September 5, 2001 [the beginning of the two-year period preceding the filing of this suit]. Murtha’s own deposition testimony reveals that the lump never went away and that she was always concerned about what it was from the time of its discovery. Thus, the knowledge of the physical harm occurred in 1997 and she was urged to have the lump removed as early as 1998. Murtha’s knowledge of the injury was over five years prior to the filing of this lawsuit, therefore her claims are barred by the applicable statute of limitations.

Section 614.1(9) does not support the ruling of the district court that the statute of limitations began to run in 1997 when Murtha first noticed the lump in her breast. Under that section, suit must be brought “within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, ... of the existence of, the injury ... for which damages are sought.” Iowa Code § 614.1(9) (emphasis added).

The defendants contend that Murtha’s “injury” was the lump she discovered in 1997. Further, they argue Murtha knew of the injury when she discovered the lump, was concerned about it, and knew it could be a sign of breast cancer. Murtha counters that she did not suffer an “injury” until she was diagnosed with cancer. It was only after her diagnosis, she argues, that she knew of her injury, thus triggering the beginning of the limitations period. As discussed below, we do not agree with either party’s argument as to when Mur-tha suffered an “injury” for section 614.1(9) purposes and when she knew, or should have known, of such injury. “Injury” under the statute may occur at some point between the discovery of the lump (under the defendants’ argument) and the final diagnosis of cancer (under the plaintiffs argument).

Section 614.1(9) does not define the term “injury.” In fact, in medical malpractice cases, the term has been subject to considerable debate. It has been said that

“[ijnjury” could mean the allegedly negligent act or omission; the physical damage resulting from the act or omission; or the “legal injury,” ie., all essential elements of the malpractice cause of action.

Massey v. Litton, 99 Nev. 723, 669 P.2d 248, 250 (1983). In Schlote we defined “injury,” for purposes of section 614.1(9), as the physical harm incurred by the plaintiff, not the legal harm or wrongful act by the defendant. Today, we supplement that definition by including an additional requirement that the statute of limitations is only triggered upon knowledge, or imputed knowledge, of the cause in fact of the physical or mental injury. Rathje, 745 N.W.2d at 458. Thus, determining when the statute of limitations is triggered in a medical malpractice case requires two distinct steps. First, the plaintiff must have knowledge, or imputed knowledge, of an injury, i.e., physical or mental harm. Second, the plaintiff must have knowledge, or imputed knowledge, of the cause in fact of such injury. It is the first step — whether the plaintiff knew, or should have known, she suffered an injury — that is at issue in the present case.

For most medical malpractice cases, such as Schlote, defining injury as “physical or mental harm” is appropriate. However, claims of negligent misdiagnosis, as in the present case, are often based on a different type of harm and require us to further develop our definition of “injury” for such cases. See St. George v. Paviser, 253 Va. 329, 484 S.E.2d 888, 891 (1997) (recognizing that a different approach is necessary to determine the existence of an “injury” in misdiagnosis cases as opposed to malpractice actions based on the affirmative conduct of the defendant).

In many medical malpractice cases, the injury for which damages are sought is immediately apparent. See, e.g., Christy v. Miulli 692 N.W.2d 694, 699-700 (Iowa 2005) (plaintiff was immediately aware of the injury — death—upon the death of the deceased); Langner, 533 N.W.2d at 518 (patient was immediately aware of her injury — emotional and mental stress — upon hearing the defendant’s harmful statements). In those cases, it is relatively simple to determine what the injury is, when it occurred, its cause in fact, and when the plaintiff knew, or should have known, of it — all of which occurred at the same time. Application of section 614.1(9) to such cases is straightforward.

However, there are those medical malpractice cases that are based on an injury that is not immediately apparent, such as an internal condition with no specific external symptoms or a progressive condition. In such cases, it is not at all clear at what stage the ultimate injury for which the plaintiff seeks damages actually occurred, nor is the cause of such injury always clear. Rathje, 745 N.W.2d at 449. Expert testimony and other medical evidence are usually required to make these determinations. See, e.g., Renner v. Stafford, 245 Va. 351, 429 S.E.2d 218, 220-21 (1993) (“[T]he crucial question in cases like this, when the date of the wrongful act possibly does not coincide with the date of the resulting harm to the plaintiff, is: When was the plaintiff hurt? The answer to this question must be found mainly in the medical evidence.”)- Further, determining when the plaintiff knew, or should have known, of the existence of the not-immediately-apparent injury, for statute-of-limitations purposes, is far from straightforward. Such cases often involve a claim of negligent misdiagnosis, as is the case here. Because, prior to today, we have not addressed how section 614.1(9) applies to a claim of negligent misdiagnosis in which the injury for which damages are sought is not immediately apparent, we look to other jurisdictions for guidance. Though the statutes of limitations in these jurisdictions are not necessarily identical to our section 614.1(9), they all require the fact finder to determine the stage at which the “injury” occurred and, as such, are instructive in identifying the injury and when it occurred in the context of a negligent misdiagnosis case.

In DeBoer v. Brown, 138 Ariz. 168, 673 P.2d 912 (1983), the Arizona Supreme Court addressed facts very similar to those in this case. The Arizona statute began to run on the “date of injury.” DeBoer, 673 P.2d at 913. “Injury” has been defined by the Arizona court as “the damaging effect sustained by the plaintiff-patient.” Id. at 914. The patient in DeBoer was being treated for various skin problems, and in August 1976, the patient’s doctor diagnosed a lesion on the patient’s back as a common wart. From that date until April of 1980, the patient noticed no change in the lesion. However, as evidence later showed, the lesion began to grow internally sometime in 1979, and in April 1980, the lesion was diagnosed as a malignant melanoma. The patient’s chances of survival dropped from ninety-five percent in 1976 to only fifty to seventy-five percent in 1980. The patient filed suit in 1981 against the doctor who had missed the cancer (which was determined later to have existed at the time of his 1976 exam). The doctor raised a statute-of-limitations defense, claiming the suit was barred. Id.

The Arizona court rejected the doctor’s statute-of-limitations defense, stating:

Where a medical malpractice claim is based on a misdiagnosis or a failure to diagnose a condition, the “injury” is not the mere undetected existence of the medical problem at the time the physician misdiagnosed or failed to diagnose it. Nor is the “injury” the mere continuance of the same problem in substantially the same state or the leaving of the patient “at risk” of developing a more serious condition. Rather, the “injury” is the development of the problem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.

Id. (emphasis added) (citing Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.1983)). Based on its analysis of cases from other jurisdictions, the Arizona court concluded the patient “was damaged and his ‘injury’ occurred when the misdiagnosed lesion began to grow and threaten his life expectancy, not when the misdiagnosis occurred.” Id. at 915.

These principles are well supported by cases from other jurisdictions. For example, in a case similar to Murtha’s, a Maryland court said, as to the defendant’s negligent failure to diagnose cancer:

In our view, a negligent misdiagnosis is not necessarily an “injury” for purposes of limitations; a wrongful “act” or “omission” is not the same as an “injury.” Indeed, the two need not necessarily occur simultaneously.

Edmonds v. Cytology Servs. of Md., Inc., 111 Md.App. 233, 681 A.2d 546, 558 (Md.App.1996), aff'd sub nom Rivera v. Edmonds, 347 Md. 208, 699 A.2d 1194 (1997). The rule of law in other jurisdictions is that, under statutes requiring identification of the “injury” rather than the negligent act or omission, an injury in a negligent misdiagnosis case requires more than a continuing undiagnosed condition. See, e.g., Augustine, 704 F.2d at 1078 (injury was not the existing lump, but the development of it into cancer); Doe v. Cutter Biological, 844 F.Supp. 602, 608 (D.Idaho 1994) (applying Idaho law and holding that Doe’s injury was not “objectively ascertainable” until he tested positive for HIV); Larcher v. Wanless, 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507, 512 n. 1 (1976) (injury is “damaging effect”); Steingart v. Oliver, 198 Cal.App.3d 406, 243 Cal.Rptr. 678, 682 (1988) (undiagnosed breast cancer not injury until the plaintiff “suffered ... damaging effect or appreciable harm”); Rivera, 699 A.2d at 1202 (suggesting that condition became injury when “additional adverse consequences” occurred); St. George, 484 S.E.2d at 891 (“This is a misdiagnosis case, not a malpractice action based on negligently performed surgery. In every misdiagnosis case, the patient has some type of medical problem at the time the physician is consulted. But the injury upon which the cause of action is based is not the original detrimental condition; it is the injury which later occurs because of the misdiagnosis and failure to treat.” (Citation omitted.)); Lo v. Burke, 249 Va. 311, 455 S.E.2d 9, 12 (1995) (plaintiffs condition, initially diagnosed as a cyst, became cancerous; the court held the plaintiff “suffered a physical hurt [or injury] only when the cancer developed,” relying on Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900, 904 (1981), which held an injury is a “positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded”); Paul v. Skemp, 242 Wis.2d 507, 625 N.W.2d 860, 873 (Wis.2001) (recurring headaches, misdiagnosed by the defendant, became injury when patient’s arteriove-nous malfunction either ruptured or could no longer be treated). Our definition of “injury” as physical or mental harm is consistent with the holdings in these cases when the claim is one of negligent misdiagnosis.

IV. Disposition.

The key to applying section 614.1(9) in this case is determining when the plaintiff knew or should have known of her injury, i.e., the physical harm suffered. However, in order to make this determination, the initial question must be at what stage her condition became an “injury” within the meaning of the statute. In a case involving a condition that is not immediately diagnosed, such as Murtha’s, the “injury” does not occur merely upon the existence of a continuing undiagnosed condition. Rather, the “injury” for section 614.1(9) purposes occurs when “the problem [grows] into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.” DeBoer, 673 P.2d at 914. Once a fact finder identifies the injury by answering that question, the statute requires it to determine when the plaintiff knew or should have known of the injury and the cause in fact of the injury. These inquiries — what constitutes the injury and its cause and when the plaintiff is charged with knowledge of such injury and its cause — are highly fact-specific. Under the summary-judgment record before us, these issues cannot be resolved as matters of law, as the district court did, but must be resolved as factual issues.

A reasonable fact finder could conclude that none of the events before September 5, 2001 (the beginning of the two-year period preceding the filing of Murtha’s lawsuit) were “injuries” within the meaning of section 614.1(9). Prior to that date, Murtha was aware of a lump in her breast, but physical examinations, mammograms, and ultrasound examinations indicated her condition was benign. On December 7, 2001, Dr. Baker was concerned about the grittiness of the lump during a needle biopsy, but the biopsy was nondiagnostic. The doctors remained uncertain about whether the lump was cancerous until June 14, 2002, when the lump was excised and diagnosed as cancerous. Thus, in the absence of definitive medical evidence regarding the development of Murtha’s cancer, a jury question exists as to when Murtha suffered an “injury.” Even if a fact finder concludes that Murtha’s lump developed into cancer or her cancer progressed, i.e., she sustained an “injury” for section 614.1(9) purposes, prior to the two-year period preceding the filing of her lawsuit, it is still a fact question under this record as to when she knew, or should have known, of that injury and its cause in fact. A reasonable fact finder could conclude that Murtha should have known of her injury and its cause only after December 7, 2001, when Dr. Baker expressed his concern that she may have a serious condition and recommended excision. This date was well within the two-year period preceding the lawsuit.

Because we hold that the issue was not properly resolved by summary judgment, we reverse and remand for further proceedings.

REVERSED AND REMANDED.

WIGGINS, Justice,

(concurring specially).

As stated in my special concurrence in Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008) (filed today), I concur in the legal interpretation by the majority opinion of Iowa Code section 614.1(9)(a) (2001). However, I would find not only do the defendants fail to establish'there is no genuine issue of material fact regarding the application of section 614.1(9)(a), but also under the present summary judgment record the defendants do not establish sufficient facts to have the statute-of-limitations issue submitted to a jury.

Because a cross-motion for summary judgment on the statute-of-limitations issue was not filed by the plaintiff, the majority has declined to extend its discussion to consider the adequacy of the record to withstand such a motion. In order to more clearly describe the scope of our ruling and to provide guidance to the district court, I would make it clear that under the current record no reasonable jury could conclude the plaintiff should have known of her injury or that it was caused by medical care prior to the time the treating physician made the diagnosis that she had a malignancy. See Hardi v. Mezzanotte, 818 A.2d 974, 980 (D.C.2003) (holding when the physician is at the stage where he is providing a diagnosis and advice for the patient’s medical care, the patient cannot be expected to question him or to know the doctor’s actions might be negligent and result in harm to the patient).

Nothing in the majority opinion is inconsistent with these observations.

      . The plaintiff also raises issues of equitable estoppel and the constitutionality of section 614.1(9). Because we resolve the appeal on the application of section 614.1(9), we do not address these additional issues.

      . Arizona Revised Statute section 12-564(A), in effect at the time of DeBoer, was later found unconstitutional in Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984). However, the ruling in DeBoer was not overruled. The current statute of limitations for medical negligence claims is Arizona Revised Statute section 12-542(1).


author: LARSON, Justice.

text:
    Thomas S. MILLAM, Appellee, v. STATE of Iowa, Appellant.
    No. 05-1970.
    Supreme Court of Iowa.
    Feb. 29, 2008.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, for appellant.

      Kent A. Simmons, Davenport, for appel-lee.
   LARSON, Justice.

Thomas Millam was convicted of two counts of second-degree sexual abuse under Iowa Code section 709.3(2) (1999) and sentenced to two concurrent twenty-five-year terms of imprisonment. We dismissed Millam’s appeal pursuant to Iowa Rule of Appellate Procedure 6.104. Mil-lam filed an application for postconviction relief under Iowa Code chapter 822, which was granted by the district court. The court of appeals reversed, and we granted Millam’s application for further review. We vacate the decision of the court of appeals, affirm the judgment of the district court, and remand for a new trial.

I.Facts and Prior Proceedings.

Counts I and II of the sexual-abuse charges against Millam pertained to Mil-lam’s girlfriend’s seven-year-old daughter, J.S. Count III pertained to Millam’s daughter. A jury convicted Millam on counts I and II, but acquitted him on count III. In his application for postconviction relief, Millam raised several claims of ineffective assistance of counsel, including counsel’s failure to move to sever counts I and II from count III, counsel’s failure to offer evidence of J.S.’s prior false claims of sexual abuse, counsel’s failure to conduct a reasonable investigation, and counsel’s failure to investigate and rebut the State’s suggestion of flight, as well as counsel’s failure to assert a claim of prosecutorial misconduct. The district court granted Millam’s application for postconviction relief, concluding Millam’s trial counsel was ineffective for failing to move to sever counts I and II from count III. The court of appeals reversed. Because we conclude Millam’s counsel was ineffective for failing to offer evidence of J.S.’s prior false claims of sexual abuse, we do not reach Millam’s other arguments.

II. Standard of Review.

Postconviction relief proceedings are generally reviewed for correction of errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, ineffective-assistance-of-counsel claims are constitutional in nature, and as such, our review is de novo. Id. We give weight to the lower court’s determination of witness credibility. Id.

III. Applicable Law.

Iowa law regarding ineffective assistance of counsel is well established. In order to prevail on such a claim, the applicant must prove, by a preponderance of the evidence, that trial counsel failed to perform an essential duty and the applicant was prejudiced thereby. State v. Williams, 695 N.W.2d 23, 28-29 (Iowa 2005); Ledezma, 626 N.W.2d at 142.

An attorney fails to perform an essential duty when the attorney “perform[s] below the standard demanded of a reasonably competent attorney.” Ledezma, 626 N.W.2d at 142. We presume the attorney performed competently, and the applicant must present “an affirmative factual basis establishing inadequate representation.” State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). “Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel.” Ledezma, 626 N.W.2d at 143. However, “strategic decisions made after a ‘less than complete investigation’ must be based on reasonable professional judgments which support the particular level of investigation conducted.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)). “Trial counsel has no duty to raise an issue that has no merit.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003). We do not expect counsel to anticipate changes in the law, and counsel will not be found ineffective for a lack of “clairvoyance.” See Williams, 695 N.W.2d at 30. However, “[i]n situations where the merit of a particular issue is not clear from Iowa law, the test ⅛ whether a normally competent attorney would have concluded that the question ... was not worth raising.’ ” Graves, 668 N.W.2d at 881 (quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982)); see also State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999).

An applicant is prejudiced by counsel’s failure to perform an essential duty when “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). “A reasonable probability is one that is ‘sufficient to undermine confidence in the outcome.’ ” State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996) (citations omitted).

IV. Discussion.

During the course of investigating J.S.’s claims that she was sexually abused by Millam, investigators were informed by J.S.’s mother that J.S. had made similar accusations against one of her mother’s previous boyfriends. J.S. later recanted those accusations. Millam’s trial counsel did not offer this information into evidence, believing it was excluded by Iowa’s rape-shield law — Iowa Rule of Evidence 5.412. Millam contends his trial counsel breached an essential duty by failing to offer this information into evidence, and Millam was prejudiced thereby. Both the district court and court of appeals disagreed, concluding the law regarding whether a victim’s prior false claims of sexual abuse were protected by the rape-shield law was unsettled at the time, and counsel was under no duty to anticipate changes in the law. Therefore, counsel had no duty to raise the issue.

Iowa’s rape-shield law provides, in pertinent part:

Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible....

Iowa R. Evid. 5.412(b). At the time of Millam’s trial, we had not yet determined whether a victim’s prior false claims of sexual abuse were “evidence of a victim’s past sexual behavior” and, therefore, inadmissible pursuant to rule 5.412(b). However, in State v. Alvey, 458 N.W.2d 850, 852 (Iowa 1990), we excluded such evidence, concluding that, even if it was outside the rape-shield law, it was inadmissible under general relevancy considerations.

In 2004 we decided the case of State v. Baker, 679 N.W.2d 7 (Iowa 2004), in which we held that a victim’s prior false claims of sexual abuse do not constitute “sexual behavior” and, thus, are not protected by our rape-shield law. Today, in order for evidence of the victim’s prior false claims of sexual abuse to be admitted into evidence, the defendant must first make a threshold showing to the court that “(1) the complaining witness made the statements and (2) the statements are false, based on a preponderance of the evidence.” State v. Alberts, 722 N.W.2d 402, 409 (Iowa 2006). If the prior claims are determined to be false, the rape-shield law is inapplicable, and the claims are admissible if they meet “ ‘all other applicable evidentiary requirements and considerations.’ ” Id. at 410 (quoting State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34, 40 (1997)).

It is clear that, at the time of trial in'the present case, Iowa law was unsettled on the question of whether prior false claims of sexual abuse were protected by the rape-shield law. In Alvey we specifically declined to address whether such claims fall outside the rape-shield law and, thus, are admissible if relevant. Though some of our prior case law indicates that counsel has no duty to raise an issue if the law is merely unsettled, see, e.g., Bayles, 551 N.W.2d at 610 (Iowa 1996), we have since made it clear that the test to determine whether counsel is required to raise an issue “ ‘is whether a normally competent attorney would have concluded that the question ... was not worth raising.’ ” Graves, 668 N.W.2d at 881 (quoting Schoelerman, 315 N.W.2d at 72); see also Westeen, 591 N.W.2d at 210. This test does not require an attorney to be clairvoyant, but rather to research the relevant legal issues and determine whether, given the circumstances of the particular case, the issue is “worth raising.”

The State’s case against Millam was based almost exclusively on J.S.’s testimony. There was no physical evidence of the sexual abuse, nor were there any witnesses. This was a case of “he said, she said.” As a result, J.S.’s credibility was pivotal to the State’s case. Any evidence undermining that credibility could only work in Millam’s favor, particularly evidence that J.S. had made, and later recanted, similar claims of sexual abuse. Mil-lam’s trial counsel testified that he did not research whether the evidence would be admissible despite the rape-shield law. In fact, research of the law in other jurisdictions would have revealed that many jurisdictions had concluded that prior false claims of sexual abuse were not protected by their rape-shield laws. See Baker, 679 N.W.2d at 10 (“Virtually all cases considering the issue have found that false claims of prior sexual conduct do not fall within the coverage of rape-shield laws.”); see generally Nancy M. King, Annotation, Impeachment or Cross-Examination of Prosecuting Witness in Sexual Offense Trial by Showing That Similar Charges Were Made Against Other Persons, 71 A.L.R.4th 469 (1989). In this ease, the wording of the rape-shield law itself is quite clear: it refers to sexual behavior, and quite simply, claims of sexual abuse are not sexual behavior. It seems that, even before Baker, defense attorneys would seize on the plain language of the law and offer evidence of a victim’s prior false claims. We conclude Millam’s counsel failed in an essential duty by not offering evidence of J.S.’s prior false claims of sexual abuse.

Next, we must determine whether Millam was prejudiced by counsel’s failure. We think so. “When the performance of counsel relates to the failure to present evidence, we must consider what bearing the evidence may have had on the outcome of the case.” Ledezma, 626 N.W.2d at 148. Evidence of J.S.’s prior false claims of sexual abuse could have greatly impugned her credibility, thus lending credence to Millam’s contention that he did not sexually abuse her. In fact, J.S.’s own mother doubted her claims against Millam due to her prior false claims. Because of the State’s reliance on J.S.’s claims and the lack of supporting physical evidence, this evidence would have “challenged the very core of the State’s case.” Id. at 149. In a case in which the evidence against the defendant is not overwhelming, such evidence is imperative to an effective defense. Id. at 148; see also State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (the strength of the State’s case is important when determining prejudice). “It becomes easier to doubt the fundamental fairness of a trial, and to question the reliability of the verdict, when the evidence by the State is not overwhelming and the errors by counsel are significant.” Ledezma, 626 N.W.2d at 148-49. In a case also involving sexual misconduct (though not in the context of ineffective assistance of counsel), we analyzed the prejudice suffered by a defendant as a result of the court’s refusal to allow him to prove the victim made prior false claims of sexual misconduct:

The verdict was primarily ground[ed] on the conflicting testimony of R.M. and Alberts. R.M. testified Alberts sexually assaulted her. Alberts admits having sex with her, but claims the sex was consensual. There was no physical evidence of an assault. No other witnesses testified Alberts sexually assaulted the victim. The jury’s assessment of the relative credibility of R.M. and Alberts was the key to the conviction, thereby enhancing the relevance of the allegedly false prior allegation. By denying Al-berts the opportunity to prove to the court R.M. made a prior false claim of sexual misconduct, the court hampered Alberts’ ability to argue R.M. accused another man of improper conduct to disguise her own questionable behavior. This error may have unduly prejudiced Alberts’ defense and therefore requires us to remand the case so the trial court may determine whether R.M. made false statements to Josh.

Alberts, 722 N.W.2d at 412. Our reasoning in Alberts is equally applicable to the present case. We conclude that the possibility that this evidence would have impugned J.S.’s credibility is “ ‘sufficient to undermine confidence in the outcome.’” Bayles, 551 N.W.2d at 610 (quoting Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984)). As a result, “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698).

V. Conclusion.

Millam was denied his constitutional right to effective assistance of counsel when his counsel failed to offer evidence of J.S.’s prior false claims of sexual abuse, and Millam was prejudiced thereby. An attorney’s duty to raise unsettled legal issues is not, of course, unlimited. However, in the present case, the legal issue was in flux. That fact, coupled with the wording of the rule itself, should have alerted Millam’s attorney to the possibility that such evidence may not be protected by the rape-shield law. Considering that this evidence was central to Millam’s defense, the issue was certainly worth raising, and counsel should have taken some action to present this evidence to the fact finder.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED; CASE REMANDED.


author: WIGGINS, Justice.

text:
    ESTATE OF Robert RYAN, By and Through Charlene Ryan, Executor, Charlene Ryan, Individually, and Nathan Nissen, Plaintiffs, v. HERITAGE TRAILS ASSOCIATES, INC., Defendant. Heritage Trails Associates, Inc., CF Industries, Inc., Agrillance, L.L.C., and Cenex Harvest States Cooperatives, Appellees, v. Trinity Industries, Inc., Appellant.
    No. 06-1343.
    Supreme Court of Iowa.
    March 7, 2008.

      Michael J. Coyle and Danita L. Grant of Fuerste, Carew, Coyle, Juergens & Sud-meier, P.C., Dubuque, and Heather Bailey New of Haynes and Boone, L.L.P., Dallas, Texas, for appellant.
    Stephen J. Holtman and David A. Hacker of Simmons Perrine P.L.C., Cedar Rapids, for appellee Heritage Trails Associates.
    T. Randy Current of Frey, Haufe & Current, P.L.C., Clinton, and John M. Sheran of Leonard, Street and Deinard, P.A., Minneapolis, Minnesota, for appellee CF Industries.
    R. Jeffrey Lewis and Heather L. Wood of Lewis, Webster, Van Winkle & Kno-shaug, L.L.P., Des Moines, for appellees Agriliance and Cenex Harvest States.
   WIGGINS, Justice.

A twenty-seven-year-old nurse tank holding anhydrous ammonia ruptured and seriously injured two workers who were filling the tank. One of the workers eventually died due to his injuries. The injured worker and the estate of the other brought claims against the manufacturer of the anhydrous ammonia, the distributors of the anhydrous, and the company hired by their employer to provide safety training. The manufacturer and distributors of the anhydrous, together with the safety training company, filed contribution claims against the manufacturer of the tank. The manufacturer and distributors of the anhydrous settled their claims with the workers by entering into a stipulated judgment. The trial proceeded on the injured workers’ claims against the safety training company and the contribution claims against the tank manufacturer.

The jury returned a verdict in favor of the workers and against the safety training company. It also returned a verdict against the tank manufacturer on the contribution claims. The tank manufacturer appealed contending Iowa Code section 614.1(2A) (2003), Iowa’s statute of repose for products liability cases, and section 668.5, Iowa’s contribution statute, precluded the court from submitting the contribution claim to the jury. Because the statute of repose prevents common liability between the manufacturer of the anhydrous, the distributors of the anhydrous, the safety training company, and the tank manufacturer, the contribution claims against the tank manufacturer are precluded as a matter of law. Therefore, we reverse the district court’s judgment against the tank manufacturer, but affirm the workers’ judgment against the safety training company.

I. Background Facts and Proceedings.

In April 2008 an accident occurred at the River Valley Cooperative in Calamus when a nurse tank manufactured by Trinity Industries, Inc. ruptured along the longitudinal weld, allowing anhydrous ammonia to escape. The escaped anhydrous seriously injured Robert Ryan and Nathan Nissen. Both men received severe external burns. Nissen also suffered severe injuries to his lungs and an eye. Nissen survived the accident. Ryan survived for several days in the hospital and then died.

On July 28, 2004, the Estate of Robert Ryan by and through Charlene Ryan, individually and as executor, and Nissen, filed a petition against S/M Service Company (S/M), Heritage Trails Associates, Inc. (Heritage Trails), CF Industries, Inc. (CF), and Cenex Harvest States Cooperatives (CHS). Ryan and Nissen later amended their petition to add Agriliance, LLC (Agriliance) as a defendant. S/M was the prior owner of the nurse tank. S/M merged with River Valley, the employer of Ryan and Nissen. River Valley became the owner of the tank due to that merger. River Valley hired Heritage Trails to provide monthly safety training for its employees. CF manufactured the anhydrous and sold it to CHS. CHS sold the anhydrous to Agriliance. In turn, Agriliance sold the anhydrous that leaked from the nurse tank to River Valley.

Ryan’s and Nissen’s claims against these defendants alleged negligence and breach of warranty based on a failure to warn of the hazards associated with nurse tanks. Ryan and Nissen did not file an action against Trinity because the nurse tank involved in the incident was manufactured in 1976, and the fifteen-year statute of repose governing products liability actions would have precluded such an action. Iowa Code § 614.1(2A)(a).

In their answers to the petition, S/M, Agriliance, CHS, CF, and Heritage Trails included third-party claims against Trinity for contribution and indemnity. Trinity raised several affirmative defenses in its answers to these claims. Trinity also filed a motion to dismiss alleging the claims for contribution failed because common liability was lacking. The district court denied this motion.

S/M filed a motion for summary judgment claiming the merger agreement between itself and River Valley shielded it from liability to Ryan and Nissen. The district court granted S/M’s motion for summary judgment on this ground and dismissed it from the action.

CF filed a motion to dismiss Ryan’s and Nissen’s claims for lack of subject matter jurisdiction, arguing all the claims were preempted by the Hazardous Materials Transportation Act (HMTA). Trinity, Agriliance, CHS, and Heritage Trails joined the motion. Agriliance, CHS, and CF later withdrew their motions. The court overruled Heritage Trails’ preemption motion.

Agriliance, CHS, and CF stipulated with Ryan and Nissen to the entry of a judgment on their claims. The court entered judgment in favor of Ryan and Nissen and against CF for $1,125,000, Agriliance for $1,025,000, and CHS for $100,000.

The case proceeded to trial regarding the issues of Heritage Trails’ liability to Ryan and Nissen and the contribution claims against Trinity. Trinity made a motion for directed verdict based on the lack of common liability and preemption. The court overruled Trinity’s motion for directed verdict.

The jury returned a verdict in favor of Ryan and Nissen against Heritage Trails. The district court entered judgment awarding Ryan and Nissen $769,000 based on the jury’s verdict. The jury also returned a verdict against Trinity on the contribution claims. The district court entered judgment in the amount of $2,540,550 against Trinity.

Trinity was the only party to file a notice of appeal.

II. Issues.

Trinity raises numerous issues on appeal; however, our construction of the exception in section 614.1(2A) (a) and its interplay with section 668.5(1), disposes of this appeal.

In its reply brief, Heritage Trails argues the court should have dismissed any claim made by Ryan and Nissen against it because the HMTA preempted those claims. We cannot address this issue based on the record before us. Heritage Trails failed to file a notice of appeal or cross-appeal. It is well settled that if a party fails to appeal the district court’s ruling, it can have no greater relief or redress in our court than was afforded to that party in the district court. Randolph Foods, Inc. v. McLaughlin, 253 Iowa 1258, 1277, 115 N.W.2d 868, 879 (1962). Because Heritage Trails failed to file a notice of appeal or cross-appeal, it has not preserved this issue for our review. Accordingly, we affirm the judgment entered against Heritage Trails in favor of Ryan and Nissen.

III. Standard of Review.

Prior to trial Trinity moved to dismiss the contribution claims on the ground that sections 614.1(2A)(a) and 668.5(1) precluded it from being liable for contribution. Trinity reasserted its argument when it moved for a directed verdict. Motions to dismiss and for directed verdicts are reviewed for correction of errors at law. Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (motion to dismiss); Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 858 (Iowa 1994) (directed verdict). Additionally, the disposition of this case turns on the construction of sections 614.1(2A)(u) and 668.5(1). We also review questions of statutory construction for correction of errors at law. State v. Tarbox, 739 N.W.2d 850, 852 (Iowa 2007). Consequently, our review is for correction of errors at law.

IV.Analysis.

A. The Effect of a Statute of Repose on a Contribution Claim. Section 614.1(2A)(a) is a statute of repose. Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 92 (Iowa 2002). Although a statute of limitations and a statute of repose may have a similar effect on a cause of action, they are different animals. We have recently summarized the difference between a statute of limitations and a statute of repose as follows:

[A] statute of limitations runs from the accrual of a cause of action, whereas a statute of repose runs from a different, earlier date typically related to an act of the defendant. They are fundamentally different insofar as a statute of limitations sets forth the time within which an accrued claim must be asserted in court, in contrast to a statute of repose that operates to prevent a cause of action from even accruing. (“[Wjhile a statute of limitation merely limits the time in which a plaintiff may bring suit after a cause of action accrues, a statute of repose extinguishes a cause of action after a fixed period of time ..., regardless of when the cause of action accrued.”)- In other words, a statute of limitations affects only the remedy, not the right, whereas a statute of repose affects the right itself, extinguishing rights or preventing rights from arising.

Id. at 91-92 (internal citations omitted).

We can illustrate this difference by examining how courts apply a statute of limitations and a statute of repose to a contribution claim. The first step in applying a statute of limitations to a contribution claim is to determine when the claim accrued. In Iowa a cause of action for contribution ordinarily accrues when one tortfeasor has discharged more than that tortfeasor’s proportionate share of a common obligation. Franke v. Junko, 366 N.W.2d 536, 540 (Iowa 1985). In determining whether a statute of limitations bars a contribution claim, courts count the time from when the claim accrued to the time the action for contribution was commenced. Lawrence v. Melvin, 202 Iowa 866, 870, 211 N.W. 410, 413 (1926). Any action filed past the limitations period is barred. Id.

Courts use a different analysis when applying a statute of repose to a contribution claim. The first step in applying a statute of repose is to determine the time when the statute of repose begins to run. The legislature defines the time when the statute of repose begins to run in the statute. In a products liability action brought in Iowa, the statute of repose begins to run “after the product was first purchased, leased, bailed, or installed for use or consumption unless expressly warranted for a longer period of time by the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product.” Iowa Code § 614.1 (2A)(a.). The time limit in which a party may bring a products liability action against “the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of a product” is fifteen years. Id.

After the expiration of fifteen years, the repose period begins. The repose period not only extinguishes claims that accrued more than fifteen years prior to the start of the repose period, but also prevents claims from accruing during the repose period. Albrecht, 648 N.W.2d at 90-91; see also Capco of Summerville, Inc. v. J.H. Gayle Const. Co., 368 S.C. 137, 628 S.E.2d 38, 41-42 (2006) (holding the statute of repose bars a contribution action before the right has even accrued); Krasaeath v. Parker, 212 Ga.App. 525, 441 S.E.2d 868, 870 (1994) (statute of repose barred contribution claim even though suit was timely under the twenty-year statute of limitations governing contribution actions). Thus, if a right to contribution would ordinarily accrue during the repose period, the statute of repose prevents it from doing so.

B. Statutory Construction of the Contribution Exception Contained in Section 614.1(2A)(a). When the legislature enacted the statute of repose for products liability cases, it created an exception to the repose period for contribution claims. The legislative exception states, “[t]his subsection shall not affect the time during which a person found liable may seek and obtain contribution or indemnity from another person whose actual fault caused a product to be defective.” Iowa Code § 614.1(2A)(a).

To decide the issues raised in this appeal, we must first construe section 614.1(2A)(a). The first step in ascertaining the true intent of the legislature is to look at the statute’s language. Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 197 (Iowa 2003). When confronted with the task of statutory construction we have said:

‘The goal of statutory construction is to determine legislative intent. We determine legislative intent from the words chosen by the legislature, not what it should or might have said. Absent a statutory definition or an established meaning in the law, words in the statute are given their ordinary and common meaning by considering the context within which they are used. Under the guise of construction, an interpreting body may not extend, enlarge or otherwise change the meaning of a statute.’

State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006) (citation omitted). When the statute’s language is plain and its meaning is clear, we look no further. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001). Rather, “[w]e resort to ‘the rules of statutory construction only when the terms of [a] statute are ambiguous.’” Wiederien, 709 N.W.2d at 541 (citation omitted) (emphasis in original). “If reasonable persons can disagree on a statute’s meaning, it is ambiguous.” Id.

Here, the language of the statute is plain and unambiguous, meaning we do not have to resort to the rules of statutory construction. The statute provides it “shall not affect the time during which a person found liable may seek and obtain contribution or indemnity....” Iowa Code § 614.1(2A)(a) (emphasis added). By using this language, the legislature made it clear that its intent in enacting the contribution exception was to avoid the repose period from having an effect on a contribution claim. Accordingly, the repose period does not prevent a contribution claim from accruing. Therefore, section 614.1(2A) (a) does not preclude the contribution claims brought by Agriliance, CHS, CF, and Heritage Trails.

C. The Application of Section 668.5(1) to the Contribution Claims.

Our next task in resolving this appeal is to determine whether Agriliance, CHS, CF, and Heritage Trails had a right of contribution against Trinity. Section 668.5(1) controls a party’s right to contribution. It provides:

A right of contribution exists between or among two or more persons who are liable upon the same indivisible claim for the same injury, death, or harm, whether or not judgment has been recovered against all or any of them.

Iowa Code § 668.5(1) (emphasis added). We have construed section 668.5(1) to require the party seeking contribution to have “common liability” with the contributor. McDonald v. Delhi Savings Bank, 440 N.W.2d 839, 841 (Iowa 1989). “Common liability exists when the injured party has a legally cognizable remedy against both the party seeking contribution and the party from whom contribution is sought.” Id. Common liability is determined “ ‘at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought....’” Schreier v. Sonderleiter, 420 N.W.2d 821, 825 (Iowa 1988) (citation omitted).

Applying these principles to the facts of this case, common liability did not exist at the time of Ryan’s and Nissen’s injuries. In 2003 the statute of repose prevented Ryan’s and Nissen’s causes of action against Trinity from accruing. Because Trinity could not be liable for Ryan’s and Nissen’s damages, Trinity did not have common liability with Agriliance, CHS, CF, or Heritage Trails. Therefore, as a matter of law, section 668.5(1) precludes Agriliance’s, CHS’s, CF’s, and Heritage Trails’ contribution claims against Trinity.

D. The Interplay Between Sections 614.1(2A)(a) and 668.5(1). Agriliance, CHS, CF, and Heritage Trails argue the exception in section 614.1(2A) (a) does away with the common liability requirement in section 668.5(1) for contribution claims involving a products liability case. We disagree. ■ ■

First, as we previously held in this opinion, the plain language of the contribution exception contained in section 614.1(2A) (a) only creates an exception to the time during which a person found liable may seek and obtain contribution. The legislature did not intend to relieve a party seeking contribution from proving the elements of a contribution claim.

Second, the legislature enacted section 614.1(2A) (a) in 1997. 1997 Iowa Acts ch. 197, § 5. It enacted section 668.5 thirteen years earlier. 1984 Iowa Acts ch. 1293, § 5, as amended by 1987 Iowa Acts ch. 157, § 7. When the legislature enacted section 614.1(2A)(a), .it did not include any language in the statute that leads us to believe the legislature had any intent to modify or repeal the statutory requirements of section 668.5.

Finally, to construe section 614.1 (2A) (a) so that it does not require common liability would vitiate the purpose, of the statute of repose. The purpose of section 614.1(2A) (a) was to provide a manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of a product with freedom from liability after the passage of fifteen years. If we were to construe section 614.1(2A) (a) in the manner urged, the purpose of the statute would be completely frustrated by making persons protected by the statute of repose liable for their products during the repose period. That would lead to an absurd result. See United Fire & Cas. Co. v. Acker, 541 N.W.2d 517, 519 (Iowa 1995) (The court does not “construe a statute in a way that would produce impractical or absurd results.”). Accordingly, we hold the contribution exception contained in section 614.1(2A) (a) does not eliminate the requirement of common liability in order for a contribution claim to be viable.

V. Summary and Disposition.

In summary,, we hold the contribution exception in section 614.1(2A) (a) does not prevent a claim for contribution from accruing during the period of repose. However, for a contribution action to be viable, common liability under section 668.5(1) has to exist between the tortfeasors at the time of the injury out of which the right to contribution arose. Because we find common liability did not exist between Trinity, Agriliance, CHS, CF, and Heritage Trails at the time of Ryan’s and Nissen’s injuries, section 668.5(1). precludes a contribution claim against Trinity as a matter of law. Therefore, we remand the case to the- district court to vacate the judgments against Trinity and enter judgment in its favor. Additionally, because Heritage Trails failed to file a notice of appeal or cross-appeal, we affirm the judgments obtained by Ryan and Nissen against Heritage Trails. Costs on appeal shall be born equally by Agriliance, CHS, CF, and Heritage Trails.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED,

      . Had Ryan’s and Nissen’s injuries occurred less than fifteen years after the nurse tank was first purchased from Trinity, common liability would have existed to allow Agriliance, CHS, CF, and Heritage Trails to bring their contribution claims against Trinity.


author: APPEL, Justice.

text:
    Bernard BUECHEL, Individually and as Coexecutor of the Estate of Juanita Buechel, Angela Pauly, Individually and as Coexecutor of the Estate of Juanita Buechel, Daniel Buechel, Monica Hagen, Mary Rose, Teresa Smith, and Joanne Mallicoat, Appellants, v. FIVE STAR QUALITY CARE, INC. d/b/a Prairie Ridge Care & Rehabilitation; Fsq, Inc.; Shopco-IA, LLC; Five Star Quality Care-IA, LLC; SNH-Iowa, Inc.; Five Star Quality Care-IA, Inc.; Senior Housing Properties Trust; Sptihs Properties Trust; Jane Does—Admr’r; Dir. of Nursing; Nursing Assistants; Johnston Enters., Inc. d/b/a Johnston Med. Staffing; and Mari Beth Johnston a/k/a Beth Johnston a/k/a Mari B. Hefta, Individually and d/b/a Johnston Med. Staffing; DEF Corp.; GHI Corp.; Joerns Furniture Co., Inc.; Joerns Healthcare, Inc.; Sunrise Habitat, Inc. n/k/a Sunrise Med. CCG, Inc., Defendants, Sunrise Habitat, Inc. n/k/a Sunrise Med. HHG, Inc., Appellee.
    No. 06-1239.
    Supreme Court of Iowa.
    March 7, 2008.

      Christopher D. Stombaugh and Sheila Stuart Kelley of Kopp, McKichan, Geyer, Skemp & Stombaugh, L.L.P., Platteville, Wisconsin, David W. Terry of Johnson, Fellows, Lake & Terry, St. Louis, Missouri, and R. Craig Oppel of Allbee, Barclay, Allison & Denning, P.C., Muscatine, for appellants.
    Robert D. Houghton and Diane Kutzko of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.
   APPEL, Justice.

In this case, we are presented with an appeal of a district court order granting summary judgment to one defendant in a wrongful death action on the grounds that the claim was barred by the relevant statutes of limitations and repose. For the reasons presented below, we affirm the order of the district court.

I. Factual Background and Prior Proceedings.

Juanita Buechel died during the early morning hours of January 20, 2001 at Prairie Ridge Care & Rehabilitation (Prairie Ridge), a nursing home facility located in Mediapolis, Iowa. On the following day, the family met with the nursing home administrator. The administrator informed the family that Juanita was found asphyxiated, lodged in the wide space between the mattress and the bed rails. The family was told that when staff members discovered Juanita, she was found sitting on the floor with her back against the bed and her head and throat caught between the bed rail and the mattress.

The circumstances of her death suggested that Juanita had accidentally strangled herself. An autopsy by Dr. Eugenio Torres concluded that death was the result of accidental asphyxiation due to compression of the neck.

Both the Des Moines County Sheriff and the Iowa Department of Inspections and Appeals (DIA) conducted investigations. The sheriff concluded that Juanita’s death was accidental, noting that Dr. Torres indicated that the beds in the facility may have to be changed so that no one else would die as a result of the same conditions. The DIA report, dated February 22, 2001, also found that the death was accidental, noting that the mattress used was not the standard-in-size for the bed. Both reports were made available to Juanita’s family shortly after they were prepared.

On January 15, 2003, the plaintiffs filed an action against the nursing home alleging negligence in connection with Juanita’s death. The petition also included a products liability claim against the unnamed manufacturer of the bed. The petition certified pursuant to Iowa Code section 613.18(3) (2003) that the manufacturer of the bed had not yet been identified.

Plaintiffs commenced formal discovery upon the filing of the suit. On September 15, 2003, the plaintiffs learned that the Joerns Furniture Company and Sunrise Medical, Joerns’s successor, manufactured the bed in question. Plaintiffs, however, did not move to amend their petition to include Joerns and Sunrise until October 28, 2003, more than a month after these entities were first identified in discovery.

After the motion to amend was granted, Sunrise asserted defenses arising out of both the applicable statute of limitations and the statute of repose. Sunrise argued that the cause of action accrued on January 21, 2001, when the family learned that Juanita’s death was caused by accidental asphyxiation when her head was caught between the mattress and the bed frame. Aimed with this information, Sunrise asserts that the plaintiffs were on inquiry notice regarding all potential causes of action arising from Juanita’s death, including those against the bed manufacturer. According to Sunrise, the two-year statute of limitations began running on January 21, 2001.

Sunrise concedes that by filing the action on January 15, 2003 and making the appropriate certification under Iowa Code section 613.18(3), the running of the statute of limitations was thereafter tolled. Iowa Code section 613.18(3) provides that the two-year statute of limitations is tolled “against the manufacturer upon certification that the manufacturer is unknown until it is identified in discovery.” Sunrise argues that the statute of limitations ran from the date the cause of action accrued until the Iowa Code section 613.18(3) certification was filed, it was then tolled, and began to run again when the plaintiffs discovered the information necessary to name Sunrise as a party. According to Sunrise, while the statute of limitations was tolled by the filing of the petition with the Iowa Code section 613.18(3) certification, there were only five days remaining in which to file a claim once the plaintiffs learned the identity of the manufacturer. Thus, the statute of limitations for plaintiffs’ claims against Sunrise expired on September 20, 2003.

The plaintiffs countered that the cause of action did not, in fact, accrue on January 21, 2001. Plaintiffs claim that the reports available at the time listed the cause of death to be an improperly-sized mattress. The plaintiffs claim to have been “thrown off the scent” of a possible products liability claim by these reports. According to the plaintiffs, an issue of fact was raised regarding their diligence in discovering this cause of action.

Sunrise also argued that plaintiffs’ claim was barred by the statute of repose. Under Iowa Code section 614.1(2A)(a), actions alleging products liability claims “shall not be commenced more than fifteen years after the product was first purchased ... or installed for use.... ”

The district court granted Sunrise’s motion for summary judgment. According to the district court, where death occurs under plainly suspicious or unusual circumstances, a reasonably diligent person is charged with the duty to investigate. The district court emphasized that the plaintiffs had knowledge supporting some sort of actionable claim, and that knowledge included information that the mattress and bed frame were involved. As a result, the district court reasoned that plaintiffs had a duty from January 21, 2001 onward to discover all theories that they might wish to pursue in support of their wrongful death action.

In the alternative, the district court also found that the claim against Sunrise was barred by the statute of repose.

II. Standard of Review.

We review a district court’s ruling on a motion for summary judgment for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188 (Iowa 2004). Summary judgment is available only when there is no genuine issue of material fact. Drainage Dist. No. 119, Clay County v. Inc. City of Spencer, 268 N.W.2d 498, 499 (Iowa 1978). “A ‘genuine issue’ of material fact exists if the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party.” Baratta v. Polk Co. Health Sera., 588 N.W.2d 107, 109 (Iowa 1999) (citing Fees v. Mut. Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992)). The burden of showing the nonexistence of a material fact is on the moving party, and every legitimate inference that reasonably can be deduced from the evidence should be afforded the nonmoving party. Randol v. Roe Enters., Inc., 524 N.W.2d 414, 415-16 (Iowa 1994) (quoting Martinko v. H-N-W Assocs., 393 N.W.2d 320, 321 (Iowa 1986)).

III. Discussion.

A. Preliminary Issue of Jurisdiction. After submission of this appeal, this court requested supplemental briefing on the question of whether this was an appeal as a matter of right or whether the appeal was interlocutory in nature. Specifically, we asked the parties to address the issue of severability in light of Iowa’s Comparative Fault Statute.

Whether a complete dismissal of one defendant in a multi-defendant action is final for purposes of appeal turns on the question of whether the interest of the dismissed defendant is severable from the claims against other defendants. McGuire v. City of Cedar Rapids, 189 N.W.2d 592, 595 (Iowa 1971). Where the interests of the dismissed defendant are severable, a judgment or decree dismissing one defendant is a final judgment as to them. Id. at 597. In this case, the only claim against Sunrise is based on products liability, while the claim against Prairie Ridge and the other defendants is based upon negligence.

The parties each argue that because the wrongful death claims are based upon different theories, they are wholly severable. We disagree. Iowa’s Comparative Fault Statute is codified in Iowa Code chapter 668. That chapter defines fault to include claims based upon theories of negligence as well as those rooted in strict liability, such as products liability claims. Iowa Code § 668.1. Although comparative fault analysis does not in and of itself determine if a defendant is liable, it does determine the relative liability as between the named defendants. In addition, our comparative fault statute precludes fault-sharing with a defendant not party to the suit. Spaur v. Owens-Coming Fiberglas Corp., 510 N.W.2d 854, 863 (Iowa 1994). Sunrise’s dismissal, therefore, potentially affects the percentage of fault awarded to Prairie Ridge and the remaining defendants. McGuire, 189 N.W.2d at 597. As such these claims are not wholly severable, and we deem this appeal interlocutory.

Because it is often difficult to determine whether an order is final, this court has routinely held that appeals improvidently filed as a matter of right may be treated as applications for interlocutory appeal. Iowa R.App. P. 6.1(c); Rowen v. LeMars Mut. Ins. Co., 357 N.W.2d 579, 581 (Iowa 1984). As a general rule, however, we sparingly grant interlocutory appeals on this basis. River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa 1984). The main factor in determining whether such an interlocutory appeal should be granted is whether consideration of the issues would serve the “interest of sound and efficient judicial administration.... ” Hammer v. Branstad, 463 N.W.2d 86, 89 (Iowa 1990).

Having reviewed the matter, we find that the substantial rights of the parties and the interests of judicial efficiency support granting this interlocutory appeal. We now turn to the issues raised by the parties.

B. Statute of Limitations. The statute of limitations for strict liability claims resulting in personal injuries is set forth in Iowa Code section 614.1(2). The statute provides that such claims must be brought within two years of the accrual of the cause of action. The two-year statute of limitations, however, is tolled in product liability cases against a manufacturer upon certification that the manufacturer is unknown. Iowa Code § 613.18(3).

In this case, the statute of limitations against Sunrise was tolled temporarily by the filing of plaintiffs’ petition on January 15, 2003. On September 15, Sunrise’s identity was disclosed in discovery. During the period of time between January 15 and September 15, the parties agree that the statute of limitations was tolled pursuant to Iowa Code section 613.18(3). The parties dispute, however, when the cause of action accrued in this case.

Sunrise’s argument is based on the concept of inquiry notice. Under Iowa law, the statute of limitations for personal injury actions accrues at the time a plaintiff discovers or in the exercise of reasonable care should have discovered “all the elements of the action.” Franzen v. Deere & Co., 377 N.W.2d 660, 662 (Iowa 1985). This latter concept — “should have discovered” — is commonly referred to as inquiry notice. Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 352 (Iowa 1987).

A party is placed on inquiry notice when a person gains sufficient knowledge of facts that would put that person on notice of the existence of a problem or potential problem. Id. On that date, a person is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation. Id. at 351— 52. Once a person is aware that a problem exists, the person has a duty to investigate “even though the person may not have knowledge of the nature of the problem that caused the injury.” Id.

Sunrise argues that the plaintiffs in this case were placed on inquiry notice of the potential claim on January 20, 2001. On that date, plaintiffs were informed that Juanita had been found asphyxiated with her head caught in the bed frame. According to Sunrise, these facts put the plaintiffs on sufficient notice that a problem existed and that a reasonably diligent investigation would have revealed design defects in the bed.

Operating on the premise that the statute of limitations for plaintiffs’ claims against Sunrise began to run on January 20, 2001, Sunrise notes that the plaintiff filed its original action on January 15, 2003, five days prior to the expiration of the two-year statute of limitations. Conceding that the statute of limitations was tolled during the period between January 15, 2003 and September 15, 2003, Sunrise contends that only five days remained after September 15 to file a claim against Sunrise. As a result, Sunrise argues that plaintiffs’ filing of an amendment to name Sunrise on October 28, 2003 was untimely under the two-year statute as a matter of law.

The plaintiffs, however, contend that there is at least a genuine question of material fact as to when the cause of action against Sunrise accrued. Plaintiffs claim that they were not placed on inquiry notice that there was something defective or otherwise wrong with the actual bed or that the bed frame itself was a cause of Juanita’s death until they were advised by newly retained counsel, who was experienced in products liability matters, that the bed design may have contributed to Juanita’s death. Plaintiffs assert that their knowledge of facts prior to that date indicated that the cause of Juanita’s death was the incorrectly-sized mattress.

In support of its position, plaintiffs rely on Bressler v. Graco Children’s Products, Inc., 43 F.3d 379 (8th Cir.1994), a case applying Iowa law. In Bressler, the Court of Appeals for the Eighth Circuit allowed a products liability case to go forward even though it was filed more than two years after the death of the plaintiffs’ child. Id. at 382: In that case, a mother put her one-month-old daughter to bed in a cradle swing. Id. at 380. At one o’clock in the morning, the mother checked on her daughter only to find the baby motionless and blue in the corner of the cradle, which was not making its full motion. Id. The baby ultimately died. An autopsy determined the cause of death to be Sudden Infant Death Syndrome (SIDS). Id. The parents, however, later found out that the swing manufacturer had recalled the swing based on reports of infant suffocation. Id. The parents filed a products liability suit against the manufacturer approximately ten months after the recall, but more than two years after the baby died. Id.

In Bressler, the Eighth Circuit noted that the plaintiffs were “thrown off the scent” by the autopsy report which stated that the cause of death was SIDS and did not suggest that the cradle swing played any role in the death. Id. at 381. In addition, the court in Bressler stated that summary judgment based on inquiry notice with respect to a statute-of-limitations defense was inappropriate where the plaintiffs should not have known that “the cradle swing was defective and unreasonably dangerous.” Id. at 380-81.

We agree with Sunrise and find Bressler distinguishable. In this case, the plaintiffs were told by the nursing home staff on January 21, 2001 that Juanita had died by asphyxiation and that her head was caught in the rails of the bed. On this date, they knew that the rails of the bed had played a causative role in her death. At this point, plaintiffs also knew that an unusual event had occurred, namely, an accidental death by positional asphyxiation involving compression of Juanita’s throat between the mattress and the bed rail. In the words of Franzen, they not only were aware of the causal role of the rail, but they knew there was a problem. Franzen, 377 N.W.2d at 662. Bed rails are not ordinarily a contributing cause of accidental death. As in Franzen, although the plaintiffs did not know the nature of the defect, they were aware of sufficient facts to put a reasonable person on inquiry notice of a potential problem, requiring further investigation. Id. at 663; Sparks, 408 N.W.2d at 361.

The factual context in Bressler, however, is materially different. In Bressler, the autopsy indicated that death of the infant was the result of natural causes. The plaintiffs had no reason to suspect that the accidental death was caused in whole or in part by the cradle. The facts in Bressler are in sharp contrast with this case. Here, the undisputed facts show that plaintiffs knew on January 21, 2001 that the cause of death was accidental and that the bed frame played a role in causing the asphyxiation. The plaintiffs were never “thrown off the scent” by an autopsy or investigation that suggested a natural death. Indeed, the sheriffs report dated a day after the accident indicated that Dr. Torres, who conducted an autopsy, was concerned that the beds in the facility would need to be changed to avoid future incidents. While the plaintiffs were certainly aware of the potential role of the undersized mattress in Juanita’s death, they also knew that the bed rail itself played a role in her unfortunate positional asphyxiation.

Further, we do not read Bressler as requiring that plaintiffs have some degree of knowledge about the specific defect in the bed. All that is required is that a person has reason to believe that “a problem” with the bed may be present that requires diligent investigation and that such diligent investigation would have revealed the existence of the defect.

Under the teaching of Franzen, we conclude that the plaintiffs’ claim against Sunrise is barred by the two-year statute of limitations. The plaintiffs were on inquiry notice on January 21, 2001. On that date, the plaintiffs’ action accrued and the statute of limitations began to run.

C. Other Issues. The district court also found that plaintiffs’ claim against Sunrise was barred by the fifteen-year statute of repose found in Iowa Code section 614.1(2A)(a). Plaintiffs raise a number of arguments suggesting that the district court erred on this issue. In light of the dispositive nature of our ruling on the statute-of-limitations issue, it is not necessary to address any questions related to the statute of repose.

IV. Conclusion.

The ruling of the district court dismissing the plaintiffs’ wrongful death action against Sunrise on statute-of-limitations grounds is affirmed.

AFFIRMED.


text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR CLARKE COUNTY, Defendant.
    No. 06-0443.
    Supreme Court of Iowa.
    March 7, 2008.

      Thomas G. Becker, State Public Defender, and Mark C. Smith, First Assistant State Public Defender, for plaintiff.
    Scott L. Bandstra, Des Moines, for defendant.
   LARSON, Justice.

The Clarke County District Court allowed attorney fees that exceeded an existing legal services contract between attorney Scott Bandstra and the state public defender. The public defender petitioned for certiorari, and we issued the writ. We conclude the district court exceeded its authority in granting fees beyond the amount provided for in the contract and therefore sustain the writ.

I. Facts and Prior Proceedings.

Attorney Bandstra’s attorney-fee claim was based on his representation of Martin Moon in Moon’s appeal from an order in a postconviction-relief case. Bandstra had a contract with the public defender under which his fee was limited to $1500-$1000 payable on the filing of the proof brief and $500 on the filing of his final brief. Because of the complexity of the case, Bands-tra moved to exceed the contract amount. The court granted Bandstra’s motion, subject to review for reasonableness. The public defender, however, denied that portion of Bandstra’s fee claim in excess of the contractual fee limitation. On review, the court acknowledged the existence of the contract terms, but ordered the public defender to pay Bandstra’s entire fee claim, based on the court’s “plenary powers to exercise justice among the parties.” The public defender’s petition for certiora-ri asserted that Bandstra’s rights under his contract were exclusive, and the court lacked authority to award the- relief requested.

II. Principles of Review.

In a certiorari case, the district court’s ruling is reviewed for correction of errors at law. State Pub. Defender v. Iowa Dist. Ct., 731 N.W.2d 680, 683 (Iowa 2007). Certiorari lies when a lower board, tribunal, or court has exceeded its jurisdiction or otherwise acted illegally. Illegality exists when a court’s findings lack substantial evidentiary support or when the court has not properly applied the law. State Pub. Defender v. Iowa Dist. Ct., 721 N.W.2d 570, 572 (Iowa 2006). On our review, “[ajlthough the district court’s well-supported factual findings are binding upon this court, its legal conclusions are not.” State Pub. Defender v. Iowa Dist. Ct., 663 N.W.2d 413, 415 (Iowa 2003).

Compensation for court-appointed attorneys is governed by Iowa Code chapters 13B and 815 and Iowa Administrative Code chapter 493. Section 13B.4(3) allows the public defender to contract with attorneys for the provision of legal services to indigent persons. See also Iowa Admin. Code r. 493-11. The public defender is authorized to review all claims for payment of indigent-defense costs and may deny such a claim if, among other things, the claim “is not payable under the contract between the claimant and the state public defender.” Iowa Code § 13B.4(4)(e)(2)(c).

Compensation for attorneys under contract with the public defender is governed by the rules adopted by the public defender. Iowa Admin. Code r. 493-11.5(6) (“Unless the contract provides for a different rate or manner of payment, the attorney shall be compensated as set forth in ... rule 493-12.5(13B, 815) for appellate work.”). The public defender established fee limitations for particular categories of cases pursuant to section 13B.4(4)(a). The fee limitation for appellate contracts was, at the time of the present case, SlSOO. Iowa Admin. Code r. 493-12.5.

A fee claimant may seek additional compensation in two ways. Administrative rule 493-12.6 provides for exceeding fee limitations by an application to the district court under rule 493-12.6(4).

A claim in excess of the fee limitations will not be paid unless the attorney seeks and obtains authorization from the appointing court to exceed the fee limitations prior to exceeding the fee limitations. If authorization is granted, payment in excess of the fee ' limitations shall be made only for services performed after the date of submission of the request for authorization.

The substance of this rule is the authority on which Bandstra apparently relied in this ease, although he does not cite the rule by number. Bandstra seems to argue that the public defender is bound by the district court’s order granting Bandstra’s motion to exceed. The problem is that the procedure under rule 493-12.6(4) is expressly made inapplicable to this case by rule 493-12.5(5), which provides: “The fee limitations and procedures provided in rule 493-12.6 ... have no application to appellate contracts.” This method of increasing the fee allowance, therefore, was not available to Bandstra.

■ A lawyer operating under a contract with the public defender may, however, request that the public defender allow a claim exceeding the contract in a case that is “unusually complicated.” Iowa Admin. Code r. 493-12.5(4). Whether a case is unusually complicated is determined by the public defender based on the information provided by the attorney “showing that the case is highly exceptional and complex from a legal or factual perspective.” Id. An attorney unsuccessfully attempting to exceed the fees in this manner “may seek review of the state public defender’s action.” Id. Court review in such a case, however, is closely circumscribed. The public defender’s action may successfully be challenged only if it “conflicts with an administrative rule or the law.” Iowa Code § 13B.4(4)(d)(5). In this case, Bandstra did not follow the statutory procedure by initially seeking approval to exceed the contract limitations from the state public defender.

The contract amount is binding in this case because Bandstra failed to exhaust his administrative remedies by asking the public defender to increase the fees provided by his contract, as provided by rule 493-12.5(4). Further, the procedure under rule 493-12.6 allowing a direct application to the district court to exceed fee limits is inapplicable to Bandstra’s case because he was operating under an appellate fee contract. The district court’s action in approving the fee exceeding the contract limitation was therefore invalid.

WRIT SUSTAINED.

      . Rule 493-12.5 has since been amended to limit fee claims in appellate cases to $1750.