WEBB v T D
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95-234 ATO. IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 DIANA L. WEBB, Plaintiff and Appellant, v. T.D., D.C.; R.K.S., C.H.A., M.D., M.D.; Defendants APPEAL FROM: and and Respondents. District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Bars, Judge presiding. COUNSEL OF RECORD: For Appellant: John M. Morrison, Helena, Montana For Meloy & Morrison, Respondents: Richard F. Cebull, Brown! Gerbase, Cebull, Fulton, Harman & Ross, Billings, Montana (for Respondent R.K.S., M.D.) Ronald L. Lodders, Crowley, Haughey, Toole & Dietrich, Billings, Montana (for Respondent C.H.A., M.D.) -<.j 'Submitted Filed: Decided: FE!?2 0 1996 2.j CLC+( fir i.. ;;;,;x i;i;.:cI'r STATE OF iric;;.'rUi%,& on Briefs: I Hanson, November 21, 1995 February 20, 1996 Justice Terry N. Trieweiler On September Medical Legal radiologist. timely After Legal and 2, R.K.S. to dismissed rendered its Webb filed without Court granted ground all of repose. granted further There forth the On Chiropractic as necessary 3, 1993, action Webb against Legal Panel On December 13, 1993, Judicial 3, 1995, for District the District summary judgment was barred by the the District We reverse for Court's on applicable order which the District Court and remand by the five-year statue of repose proceedings. is one issue Is Webb's complaint set motions complaint summary judgment. Court County. court On February Webb appeals a The Chiropractic and C.H.A.'s Webb's Webb filed and C.H.A. in the Thirteenth defendants. R.K.S.'s that with district the a Yellowstone On August prejudice. with and C.H.A., decision, on November 16, 1993. statute for pending a claim in the District in action. a second complaint against its and named R.K.S. the of the Court. an orthopedist, an application the decision Court the T.D. parties and C.H.A. District Webb filed Panel against voluntarily R.K.S., Webb filed the two doctors Judicial 1993, proper Diana the opinion the Panel rendered against Thirteenth August 1991, Panel against complaint the 9, delivered at § 27-z-205, on appeal: barred MCA? FACTUAL BACKGROUND Diana Webb suffered employment in May 1986. a chiropractor, a back injury After concerning during her accident, her symptoms. 2 the course of Webb consulted In October 1986, her T.D., her employer's workers' orthopedist, for performed read compensation further a clinical by C.H.A., in which looked evaluation "excellent." In 1989, her without back massive of root as Maurice residual compression from 10, well the spine, on the the rest performed results she had a disc 9, end of In T.D. which of referred ordered revealed side the 1989 January Echeverri right T.D. compressing cauda equina." but of prolonged herniated the first filed a Webb was nerve and fragmented were "a disc. indication to root The Webb herniation. On the in earlier consulted a laninotony, damage as a result massively MRI disc as Smith nerve 1990, L-5 Dr. Webb's her husband, a neurologist. the company evaluation. of Webb's of restriction. of Webb until for and it impairment without Webb again treated was Webb a CT-scan percent aggravation R.K.S. wrote the an which a construction 1989, insistence imaging R.K.S. work for a physician Echeverri, nerve with January the herniation Neurosurgeon T.D. to resonance S-1 22, her at Arturo magnetic that condition. day, heavy 1986, a CT-scan, Webb a two severe on August allegedly Webb to a 7, he had reviewed to perform suffered referring 1990, The next Webb was working Afterward, about left her she injury. and ordered that her to R.K.s., On October He assigned while California, the he stated and released referred evaluation. a radiologist. letter rating insurer application R.K.S. negligently September naming performed 1991, R.K.S. a interpreted and negligent the Webb C.H.A., in physical CT-scan medical which legal she examination on October panel alleged that and 7, 1986. C.H.A. The Medical Legal Panel rendered April 16, 1992, filed a complaint Judicial issued within on that thirty against District Court date, 1993, 29, Shortly action. an application necessary treatment and proper Webb voluntarily Legal her and C.H.A. Panel rendered its complaint December 13, parties County. died Thirteenth in an airplane appeared T.D. should without behalf. have on August action. pending crash. on Webb's Chiropractic to the Legal been a 2, 1993, Panel for and C.H.A. On August district 3, court as 1993, action The Chiropractic prejudice. on November 16, 1993. Court against days thirty Webb The summonses were and named R.K.S. decision within the On served. the the 1992. decision, in Accordingly, in District 1993, Panel and C.H.A. that by T.D. dismissed R.K.S. second with on March 18, the Webb's attorney in the original her of in Yellowstone decided of against R.K.S. he Webb filed review days a new attorney thereafter defendant decision but were never On June 29, 1992, On June its of the all Webb filed defendants Chiropractic on Legal Panel decision. On February for that failed 1995, 3, summary judgment Webb's injury to diagnose had passed in district the District filed by R.K.S. occurred in by the five-year before that statute of repose 4 the motions The court 1986 when the a damaged intervertebral and therefore, granted and C.H.A. October from the date of injury court; Court disc; Webb filed that defendants six years her complaint Webb's complaint found held at 5 27-2-205, is barred MCA. DISCUSSION Is forth set Webb's at This complaint barred 5 27-2-205, MCA? Court judgment reviews a district on based district same court. 903, 52 St. the Rep. 699, judgment is to material favor this of claim § 27-2-205, time of case, R.K.S. was criteria statute order applied when "there and . . the moving MCA. Webb's of the by repose summary originally 1995), is by 900 P.2d 901, provides that no genuine party is issue added). as entitled to District Court because the five-year 27-2-205, in 1986, it granted held statute summary judgment in that Webb's of MCA (1985), malpractice repose in effect found at at the provides: Action for injury or death against a physician or surgeon [or] chiropractor . . . based upon such person's . . professional negligence or for rendering alleged professional services without consent or for error or omission in such person's practice, shall be commenced within 3 years after the date of injury or 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last, but in no case may such action be commenced However, this after 5 vears from the date of iniurv. time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known to him or through the use of reasonable diligence subsequent to said act, error, or omission would have been known to him. (Emphasis the law." Section treatment of granting M.R.Civ.P., only and C.H.A. barred 56(c), proper as a matter In court's Rule 700. fact judgment five-year Brunerv. Yellowstone County (Mont. summary any by the Webb contends in § 27-2-205, "date of disc that MCA, injury" which did respondents in 1993, five-year period. occurred Webb's her 7, true Webb further R.K.S. statute of repose tolled continuously of therefore, The date is not would later this relating Section time her the Court an injury, allegedly failed she an of injury" her been the statute was the her Based original on our the was in CT-scan, filed Webb's has not requires MCA, after three the five to "date resolution first "date issue, of contested, and injury." and therefore, case. (b), . about within 27-2-102(l) statutes filed within was run because address than Section filed." have the discovery years . not to three the bulging District there misread decline 27-2-205, . the Panel. within commenced if Legal in she well defendants Medical be "commenced" case, if forth because the and the allegedly C.H.A. from action no even no conclusion an issue Section contend, the of set herniated was filed we draw 1989 Because it injury, that still issue, this until she when the repose condition. and with of diagnose. that of 1986, asserts when application to date run on which failed on October 1986, date to The defendants that statute begin she contends agreed, diagnose five-year not was the complaint to the plaintiff MCA, action 27-6-702, years years the that is from from within the that MCA (1985), the date which when provides malpractice date of injury injury, the the an in purposes action the that or but of U [flor commenced 6 the discovers states time a medical injury. must of be complaint "[tlhe running is of the applicable tolled . upon [and1 . receipt does panel's on limitation final not . limitation after the October 7, 1986. before the limitation within five years of until 30 days Diana Webb filed her . . .'I effectively of Her four action was the began date application tolled years, the eleven defendants' period from the claim after period date a malpractice again and 1991, in director begin 9, applicable days by the decision September period to run defendants review . . the application running of the and months, alleged commenced for is two malpractice on again, April on 16, and 1992, therefore, rely on as the still pending Legal Panel "date of when she injury." Webb's district filed her application T.D. as necessary the subject and proper limitations remained Chiropractic Legal which court with complaint the care was Chiropractic provider, and parties to tolled throughout Panel decision the R.K.S. action. pursuant which and The the to named C.H.A. statute of of the pendency 5 27-12-701, provides: Upon receipt of an application by the director, (1) the running of an applicable limitation period in a malpractice claim is tolled as to each chiropractic physician named as a party and as to each other person or entity named as a necessary or proper party for a court action that might subsequently arise out of the factual circumstances set forth in the application. The running of the applicable limitation period (2) in a malpractice claim does not begin again until: 30 days after an order of dismissal, with or (a) without prejudice against refiling, is issued; or after the panel's final decision is entered in (b) the permanent files of the panel and a copy is served upon the complainant or his attorney. 7 as MCA, The Chiropractic 1993. she Legal Panel rendered her second complaint Webb filed named thirty all three days In after this defendants the both limitations for Webb's application before thereafter. The parties the in 1992, and which the and that limitations, the that district period, The complaint of M.R.Civ.P., when the Rule not her claim however, They the has failed to serve effect days of Webb's on April 16, 1993. Webb statute while that tolled the voluntary effect continued of thirty the her have further for of her 3, contend a claim of the does that against suit nullifying in another filing not of toll Rule M.R.Civ.P., 41(e), a defendant a summons and the complaint provides: No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared rn the action or been served in the action as herein provided within 3 years after the action has been and no further proceedings shall be had commenced, heretofore or therein, and all actions hereafter commenced shall be dismissed by the court in which the 8 a the dismissal. 41(e), of dismissal to pend that on a defendant refiling of pendency was filed contend served than tolled that because which on August remained maintains limitations. plaintiff its statute did was never prohibits which complaint action respondents, which statute before court tolling forum. the and on the dismissed the in statute the the Panel, Court, of Webb further was pending. of filing 16, fewer 1993, that however, was voluntarily that District Court 13, during Legal disagree, complaint District agree was tolled Medical on November was rendered. parties first maintains the in decision claim decision on December Panel's case, its same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. When more than one defendant has been named in an action, the action may within the discretion of the trial court be further prosecuted against any defendant who has or upon whom summons which has appeared within 3 years, been issued within 1 year has been served and filed with the clerk within 3 years as herein required. Respondents from her contend refiling first her that pursuant because claim complaint before to Rule she failed Rep. first 496, for complaint judicata . complaint without when failure the action did not summons with district prejudice court plaintiff may not to dismiss the complaint, within three years from fact, the service In was accomplished this the of 9 not the years 52 Webb's of res plaintiff's was not served We held because of three years, however, fail on which Webb's three of within case, date cite 96 , M.R.Civ.P. summons on characterization summons and Webb did within 8 98 P .2d a complaint the They on principles 41(e), dismisses In it. dismissed the summons dismissal based by Rule be refiled. the 1995 ) , the court serve serve respondents' because as required a district complaint. comolaint the that complaint however, years, by the second Webb was prohibited dismissed (Mont . proposition her In FirstCall, three that bars We disagree, of FivstCall. within the to she voluntarily First Call, Inc. V. Capital Answering Service, Inc. St. 41(e) to court serve her filed she summons from the a her and the second date on which the first therefore, complaint inapplicable to that statute We hold repose are action is by was tolled complaint is 894 the of an action, complaint is of this 1992, without her This of that an Section interpretation 27-2-205, MCA, Tietjenv. Heberlein a second action, limitations. That "saving the of filed"); that is of her "[fliling limitations Webb filed limitations Kingv. Lujan the statute whether (N.M. of generally the tolls 3, panel tolling 54 Mont. the first decision statute," with voluntary 1993--one the the day statute. 486, dismissed action was which 10 prior does based she effect provides P. to not on of the 171 928, the toll statue predecessor if filed held 928, the of in that commencement the the that on District after We previously 488, tolled dismissal application--had of the voluntarily was complaint Webb's on August (1918), is (holding law and limitations"). legal an action was case statute which is prior "the that action prejudice the of the when and by the complaint 1244 of chiropractic nullifying (holding 1243, case, law, § and filed. 3, M.R.Civ.P. case first The question Montana's a language commencement suit of statute the 417, statute 16, where and limitations other P.2d applicable Court. are, of 889, when 646 April the 41(e) See, e.g., Blasdel v. MontanaPower Co. (1982) , 196 Mont. 640 P.2d In of Rule by Montana jurisdictions. 1982), &e&o and Rule case. when with both this FirstCall commencement MCA. consistent 426, the commenced (b), supported the tolled 27-2-102(l) is was filed. an action of of is commenced within thereafter the applicable terminated "in statute any discontinuance," the plaintiff same cause after other the expiration one year after of limitations, manner than and is bv voluntary may commence a new action of the such a termination. so limited time Section 27-Z-407, for the and within MCA (emphasis added). Tietjen is case, not dispositive however. In the first chiropractic malpractice recover the amount of decided in 1918, years Panel Act Chiropractic Legal tolling prior Accordingly, for correctly applied that case, specific tolling panels, in Tietjen, §§ 27-f-702 Sections the statute the provisions "saving Tieijen was Legal when the Montana each Act 27-6-702 with its and 27-12-701, to § 27-2-407, MCA, which nor our decision of the Panel Acts. statute" legislature's malpractice is was enacted, to in the 1870s. provisions we conclude to 1989, nor brought Furthermore, of the predecessor the in this a medical was an action tax. prior provisions. the tolling given chiropractic Act neither accounted raised to 1977 when the Montana Medical and years enacted issue Tietjen was neither a succession Panel MCA. The same is true was originally place, case, but rather, was enacted, respective of the tolling that controlling and 27-12-701, facts applicable pending neither the enactment uniquely cases to § 27-2-407, based on the MCA, specifically 11 before could While Tietjen at the issue in later of medical and years to have malpractice MCA, nor our decision facts Rather, here. provide for tolling while a claim is pending those statutes which before must or chiropractic both be given malpractice facts implicate the panel tolling in the a originally first the the case name complaint original it is a medical instant case, § 27-2-205, the MCA, and is the and timely compels timely filed original but a voluntarily panel as provide, tolling as to those between complaint, Panel Acts in necessary "bridge" filed the if is MCA, a continuous under case, defendants subsequently conclusion a malpractice before 27-12-701, filed the assuming and names the defendants. situation that action dismissal prior in malpractice pending and the Furthermore, of is 27-2-702 latter repose, statutes was named defendants, the and effect as in the chiropractic or which §§ parties, of tolling complaint while proceedings statute panel first dismissed panels, controlling case where, the medical plaintiff's respective statutes. Applying that, the Montana's presents was of to over tolled, even action. Only in manner this unnecessary a after action the by allowing can expense the case separate suit, so the long (which are of avoiding 12 in has remains the of duplication both filed forum limitations of the commenced second consolidation recognized is the the cause before action discontinuance objectives Webb's that the of and encouraging address filed second as not which we hold statute voluntary in action When the and does statute" this original pend, the in suit. of the continues jurisdiction by original to dismissal action itself tolled the "saving the first actions and Montana Medical Legal Legal Panel Act at 5 27-6-702, Panel Act at 5 27-12-701, A similar situation of Appeals Levy, In September the 27, 1967, as required by the state action court district court within one year Louisiana action App. suit of his statute as barred state court action trial While from the without in state however, the in federal was dismissed applicable on 1967 accident, one year refiled court, by the court a second suit more than Court 277 So. 2d limitations. 1972, and the plaintiff The state in 1968, The state Circuit 1973), January of he filed on November 22, on March 17, 1972. second filed was pending, in January by the Fourth in Levyv. &'telly (La. plaintiff date of his accident. prejudice MCA) be accomplished. was addressed in Louisiana 194. MCA, and the Chiropractic court dismissed the statute of one-year limitations. On appeal, court the action was pending, statute plaintiff the statute suit remained state state court court also asserted tolled had run prior and while action had been nullified action, original therefore, the that first that, case because the federal was not barred however, by the dismissal that action by the maintained the that of the statute to the date on which the plaintiff 13 state and therefore, while The defendants, period the filed The plaintiff tolling limitations court, was timely. the second that of limitations, in federal of limitations. the first contended of limitations the statute first tolled subsequent was pending, the of filed the federal court suit. La. Civ. statute, The defendants Code Ann. art. relied 3519, which on a Louisiana provided: If the plaintiff in this case, after having made his demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the [tolling of the statute of limitations] is considered as never having happened. The Louisiana to apply only voluntarily Court of Appeals, to situation filed or after failed suits dismissed, to where a plaintiff the abandonment, held that In effect, parallels Louisiana's our prior abandoned, his statute case; prior in the to that was continuously dismissed the action first prior did we conclude Therefore, progeny App. 1973), "saving Court held not that toll the the language (La. also that malpractice Circuit Court 1994), Levy s context statute," when an action is statute of limitations. and reasoning of Levy and (La. App. 1994), (La. 640 So. 2d 643 So. 2d 1228 holding was recently affirmed by Pfiffner, 640 So. 2d 281, of Appeals A second suit was dismissed that 3519, See Tug Alamo, Inc. v. Electronic Service, Inc. 275 So. 2d 419; Pj@erv.Correa We note suit Code Ann. art. to the commencement of a second action, are persuasive. rev donothergrounds medical La. Civ. of Montana's interpretation voluntarily Fourth the the statute plaintiff a second suit statute, in Tietjen , 171 P. 928, where this 281, a prosecute had filed court construed Levy, 277 So. 2d at 195-96. tolled. its however, in Louisiana which was filed or abandoned is 14 held in which that: after the considered in the original as never the having been filed and prescription1 is applicable. To the contrary, a second suit filed before the original suit was abandoned or dismissed interrunts prescription. . . . . If the second suit is filed prior to abandonment of the first suit, the interruption nrovided bv the first continues until the second suit is suit filed and interruotion continues after the suit is dismissed because the second suit is pendinq. 620 So. Pfiffne~, 2d at Contrary concurring merely been to 285 the done the in one omitted; concerns opinions, citing (citations we are expressed not other in adopting Levy and Pj?&er Louisiana law the Code or Code of Hammurabi is really 183 of case Louisiana statutes case and which law of Louisiana courts were Louisiana Court any has, instructive other where case in law fact, years as valid for law not within hesitated we felt in that relied than the the The Montana no fewer of 996 as to (holding the that rationale for not 15 authority that state's has since case law relied 1945. in 265 Mont. Supreme IIn Louisiana, "prescription" the term equivalent to what is elsewhere expressed actions,' or rather, the 'bar of the statute Black s Law Dictionary 1183 (6th ed. 1990) . its States. cite Court extending is as the United of on Louisiana a Louisiana fact interprets to times has Napoleonic The decisions See, e.g., Patton V. Madison County (1994), 993, the persuasion past sixty-six heavily is the Supreme what circumstances. which purposes and We are of irrelevant. jurisdiction persuasive. instances. 877 P.2d is we have Furthermore, from has of law. similar whether that source dissenting as examples under Furthermore, the the added). Louisiana decisions jurisdiction emphasis Court standing on The several 362, 368, case "is rights I' is very nearly by 'limitation of of limitations."' to those persons extensively 166, not from that 171-72, a part case); P.2d 752 Circuit Court whether mandatory exclusion of liability decision of 321-22; 462 P.2d 882, 884 - 85 ; (X965), 146 Mont. 449, 454, We conclude objectives within receipt of respondents tion tolled the and complaint summons which respondents To require the Products case, all times hold that since date, pending and in a Webb's and repose. years from the date filed, and the of events. substance. Webb commenced this as required 16 upon Webb's applica- that was date notified from the chronology form over of her injury, the and therefore, her claim, three complaint no prejudice from MCA. of limitation timely Webb's director to entertain statute more would elevate years panel See § 27-6-305, at all Co. of the has deemed reasonable. the authority original from the date in this of injury," were served within demonstrate We therefore years the Legislature has been, with Y. Interstate 318, 481. five was her "date of Webb's claim. a tribunal manner that within application, that or complaint before Oil contend the time period vehicle of repose have been accomplished. was filed application respondents 408 P.2d 478, of the Mont. 154 Mfg. Co. based on the facts of the statute original which that a motor (1969), and Interstate Second prohibits under McLaughlin Mont. 231 on the issue protection coverage quoting a Louisiana was "persuasive" from In m Estate and (1988), that insurance named drivers ; subdivision," 170 (holding liability policy) the IowaMutualIns.Co.v.Davis 166, of Appeals of action within by § 27-2-205, five MCA. We further hold continuously when it we that tolled, granted hold that statute of Court's order the statute and therefore, respondents' Webb's repose of found and remand at that motions complaint is § 27-2-205, for further We concur: Chief limitations Justice Justices 17 the was thereafter District for summary not barred judgment. by MCA, we reverse proceedings. Court the the erred Because five-year District Justice Karla I concur M. Gray, in the result and application section reaches law on which separately of the Court's concurring. the Court of Montana I write result. specially to opinion note it and in the analysis relies to reach my disagreement which discusses that with that Louisiana statutory addresses a similar and case law. Specifically, situation suit I do not since, filed unlike before language here the cogent Louisiana law that in m Erdmann's it progeny discussion dissent. us, involved was abandoned. and its general, Nor do I find "persuasive." regarding and m a second I will the Court's use of in particular, set it Suffice the to I agree say that forth in with discussion. Notwithstanding section my disagreement in the Court's Court reaches analyzes reason, dicta suit of m not repeat Justice that the case before the first or reasoning agree also because before Montana because and applies it us, law. opinion, is it my view the inclusion however, is Montana with my view I join that law to reach that it is unnecessary which is fully the to the and properly in the result the that Court's of the w Court result. Lew resolution reached the properly For that discussion of on the the is issue basis of Justice Charles In Webb's Erdmann reversing the December October to E. 7, 13, 1986, "bridge" 1993, lack of legal good deal of traffic plaintiffs find or an injury in time "bridge" to a useful as of the applicable malpractice claim is tolled upon thirty the The statute does not after the panel's final eleven was tolled on September for review with the and two days after months, legal had panel nothing running repose again would reached tolled on have of its the April therefore the final medical the supported by Despite see a time-barred begin her date decision present 1992, and panel--four of injury. expired in statute the until case, when Webb filed on March the for again legal 18, would five-year mid-June her years, The medical 1992. have Thus, began statute of 1992. majority reaches no legal conclusion as to the "date but assumes, for purposes of the opinion, that the date was 1986. 19 a Section panel. In the medical in application running 1991, statute, 17, period legal 9, 'The injury" injury Webb undoubtedly an decision. application not statutes. of director statute on allows otherwise receipt the days occurred nullifies limitation MCA. 27-6-702, that detour. running by is will come The review which Montana "bridge" years holds and therefore relevant the majority The majority This support, it for of repose. precedent this the time-barred.' period of Montana Court, complaint was not statute either District an untolled five-year dissenting. of of Webb claims, her initial and the district majority court limitation period complaint. of tolled pending the majority tolling effect complaint that the the complaint was still her application for the statute again action. The district court days after this complaint statute Under first Montana's complaint were they therefore legal that were action the Mont. never of repose to was placed tolled when Blasdel the first complaint was not of years after and prior statute April v. BY a the is fact served 20 1992, The complaint Webb had the Power filed, on the that is to claim The complaint. Co. and commenced now be allowed proposition the limitations. that Montana precedent, of 16, on notice complaint was in decision, one and one-half the on Blasdel the thirty filing filing for within the by simply 889, 1993, second 1986. not 640 P.2d Webb's that May Webb should reliance 417, the with tolled of and expired. toll them. panel in statute" served that when Webb filed pendency final any has allowed almost "saving not against statute majority's 1993, nullify states that injured majority 13, failed defendants the not filed voluntary legal 13, panel's originally bridge, on December five-year was Webb's the on December legal the 1993, determined filed of did 2, during therefore the chiropractic tolled chiropractic Webb the 1992, The majority on August with remained complaint, time-barred. the review 16, that 1993, had. pending majority the constructing complaint 3, she April holds on August when resolution on again was the that complaint Furthermore, dismissal so holds, (1982), 196 statute is the misleading. defendants In and the issue was whether for subsequent the original amendments if the the its Heberlein Montana's "saving that statute 16, 1993, limitations relate complaint an action back to the respective tolling tolling effect nullified when While MCA, which in predated relevant within one other the language year manner version after than of was bv the not prior does her not by to toll her December tolled when it decided was 13, the 1992 first a plaintiff the original a voluntary in of statute." action is vital Panel Acts, a new action terminated (Emphasis and § 27-2-407, Legal is the that remains may commence action to Acts of version to Tietjen cause discontinuance" 21 prior dismissed on the attempts Panel Our holding and Chiropractic that it Legal filed we relied "saving MCA) dismissed oranges voluntarily Medical interpreted action and a properly Tietien first commencing provisions. later v. discontinued Chiropractic is it Tietjen 5 27-2-407, that of was was time-barred. stating and it Webb voluntarily to of we at once 928, the statute Medical P. codified action, apples by that effect In voluntarily complaint mixes Tietien of is prior the 1993 majority 171 Here, Thus, distinguish 486, (presently complaint and her enactment Mont. clear the nullified. limitations. 1992, had was statute" action. current of to initially is of a second of April the determined effect where the today. statute law 54 commencement the were complaint tolling the their the Montana (1918), The tolled which first statute, dismissed and held complaint complaint. Even tolling the remains added.) "in anv in the Section as are such 27-l-101, administered officers into . . . .I' Section stating term brought under 27-l-102, extremely statutes, which proceeding that 5 27-2-407, MCA, has done not the Not only is the the Code for the that English its is .'I and a special apply intended to Legal proceedings Panel Acts. The reliance courts of Louisiana interpreting Louisiana is on and are Louisiana the only common law, but traditions rather state and interpretations. legal terminology . legislature to and relies from Louisiana's Montana's and we should be extremely as controlling authority in Montana case different reluctant to adopt Montana. This is particularly true statutes which directly Louisiana case law where entire on different, is and remedy the construing tradition law judicial remedies justice majority's While be remembered the by are that. with in follow Napoleonic just law. competent does or judicial of and Chiropractic disagree must justice a court no indication Louisiana it in is Medical I remedies MCA, divides in the Finally, of of other however, adoption courts " [el very "action" majority, U [jludicial that There proceeding." that and as "an ordinary further states by the two classes--"actions" former the MCA, we have both address the issue legal under consideration. The case its Court majority notes that law no fewer than sixty-six reliance on Louisiana has issued over this times authority 10,500 Court in opinions 22 has since this and its relied 1945 case. reliance on Louisiana as support Since 1945 for this on Louisiana law in only Court's 6 percent reluctance to The Louisiana the majority of those rely cases certainly on Louisiana statute (La. Civ. reflects this authority. Code Ann. art. 3519) cited by provides: If the plaintiff in this case, after having made his abandons, voluntarily dismisses, demand, or fails to prosecute it at the trial, the [tolling of the statute of limitations] is considered as never happened. Rather than of statute the statute Levy supporting supports made v. in to (La. hold of the continues. that dismissing medical her and rationale in claim Levy years for "continuous legislature's of the the of file legal tolling intent period of 7, prior the to first to not the suit from voluntarily applications with analogous majority's expired 1986, time is to reliance October in bridge" the statute medical by the in of the distinguishable suit is the prior in the filing on the persuasive. October review panels court, filed are Filing and not from repose a second saving construed effect case complaint. Montana 194, is tolling language Louisiana So.2d suit present not is the second plain the the 277 suit, complaints was under statute first initial court Webb credit a chiropractic district Five 1973), the of Nevertheless, if Webb did position, interpretation App. The facts in our that abandonment m majority's Tietien. Stelly statute the legal June majority the adopting the 23 1992. five-year 7, 1991. was tolled panel, In has the Giving while five-year building subverted statute her of this the repose for which medical malpractice neither I would December 13, cases Montana affirm 1993, statutes the District complaint and provided nor a road prior Court's cases to the would determination was time-barred by courthouse allow. that Webb's 5 27-2-205, MCA. m2x Justice Chief Justice opinion. J. A. Turnage joins in the Chief 24 foregoing Justice dissenting
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