District Judge Susan Christensen named to the Iowa Supreme Court

By: Rox Laird on August 2nd, 2018

Susan Christensen told her husband some years ago that she wanted to be a judge, and she reached that goal when she became a District Associate Judge in 2007 and a District Judge in 2015. But her climb up the judiciary ladder did not end there: On Wednesday, Christensen was appointed as an Associate Justice on Iowa’s highest court.

Gov. Kim Reynolds announced Christensen’s appointment to the Iowa Supreme Court at a press conference Wednesday afternoon. She replaces Justice Bruce Zager, who will retire in September.

Christensen, 56, a Harlan native who worked in private practice and as an assistant county attorney before being appointed to the District Court in 2015, was among 21 applicants for the Court and three finalists forwarded to the governor by the State Judicial Nominating Commission. (For more information on the applicants, the Iowa Judicial Branch has posted all 21 applications and videos of their interviews with the commission.)

Christensen’s judicial aspirations were no doubt inspired by her father, the late Iowa Supreme Justice Jerry Larson, Iowa’s longest-serving justice (1978-2008), who died in April.

In announcing the appointment Wednesday, Governor Reynolds said Christensen did not take a conventional path to the bench. “She attended law school later than most, working for years as a legal secretary to support her family” – which now includes five children and four grandchildren – and to pay for her education, the governor said. “She understands the challenges of everyday Iowans.”

Iowa’s first female governor pointed out, “there will once again be a woman’s voice the Iowa Supreme Court.”

Before Christensen, the first woman to serve on the Court was Linda Neuman (1986-2003). The last female to serve on the Iowa Supreme Court was Justice Marcia Ternus, who was also Iowa’s first female chief justice. Ternus served on the Court from 1993 to 2010, before being voted off the bench largely in part to groups opposed to the court’s unanimous decision in Varnum v. Brien, which recognized same-sex marriage in Iowa.

 


Felony-murder rule can be applied to juveniles, Iowa Supreme Court rules

By: Rox Laird on June 29th, 2018

The Iowa Supreme Court ruled that the felony-murder rule may be applied to juvenile offenders in a decision upholding the sentence of life in prison with the possibility of parole for a defendant who was 16 at the time of the crime.

Keyon Harrison was found guilty by a Polk County jury of first-degree murder for his role in the robbery and murder of a marijuana dealer. Prosecutors conceded at trial that the evidence suggested it was Harrison’s 17-year-old companion, not Harrison, who fatally shot the victim. But Harrison was found guilty of aiding and abetting the robbery and murder, and that is the equivalent of first-degree murder under the felony-murder rule.

The Court, in a 4-2 decision, ruled that using the felony-murder rule against a juvenile violates neither the U.S. nor the Iowa Constitution. The majority opinion was written by Justice Bruce Zager joined by Chief Justice Mark Cady and Justices Edward Mansfield and Thomas Waterman.  Justice Brent Appel filed a dissenting opinion, joined by Justice David Wiggins. Justice Daryl Hecht did not participate in the case.

The felony-murder rule, which has ancient roots in common law, is codified in Chapter 707 of the Iowa Code and transforms forcible felonies such as robbery into first-degree murder if a person is killed in the course of the felony, regardless of intent or premeditation.

By arguing the felony-murder rule is unconstitutional for juveniles, the Court said Harrison is asking for greater due-process rights for juvenile offenders than adult offenders. But the justices drew a distinction between criminal offenses and criminal sentences applied to juveniles.

While the Iowa Supreme Court has recognized that juveniles are “constitutionally different from adults,” the Court has never held that the elements of criminal offenses should be transformed to account for that difference, Zager wrote. Quoting from an earlier decision, he said the Court’s “constitutional analysis is not about excusing juvenile behavior, but imposing punishment in a way that is consistent with our understanding of humanity today.” This is achieved with individualized sentencing, Zager wrote.

While Harrison argues that life in prison is “grossly disproportionate” in his case, he was immediately eligible for parole, thus benefitting from the Court’s 2016 decision in State v. Sweet that held that juvenile offenders may not be sentenced to life without the possibility of parole.

The Parole Board provides juvenile offenders individualized analysis of the conditions of their past lives and their progress toward rehabilitation in deciding whether to approve early release, which Zager said is consistent with the Court’s approach to juvenile sentencing.

In his dissent, Justice Appel framed the Harrison case stark terms:

“The question in this case is whether an unarmed child may be subject to life in prison with the possibility of parole for participating in a marijuana robbery where a coparticipant brought a gun to the crime and killed the robbery victim.”


Defendant did not violate the Iowa Civil Rights Act for discrimination it was unaware of, Iowa Supreme Court rules

By: Rox Laird on June 29th, 2018

An applicant for a firefighter position is rejected after the employer’s consulting physician concludes the applicant is medically unqualified without disclosing the reason: The applicant had recently had symptoms of multiple sclerosis (MS).

Did the employer violate the disability discrimination provision of the Iowa Civil Rights Act?

Not according to the Iowa Supreme Court in a ruling handed down June 22. The Court, in a 4-2 decision in Deeds v. City of Marion, held that since the city was not aware of Nolan Deeds’ MS diagnosis, it did not violate his rights under the Iowa Civil Rights Act.

“The City is not required to be a mind reader,” Justice Thomas Waterman wrote for the Court. The majority opinion was joined by Chief Justice Mark Cady and Justices Edward Mansfield and Bruce Zager. Justices Brent Appel and David Wiggins dissented. Justice Daryl Hecht did not participate in the case.

The Court also issued a second, one-paragraph, opinion, Deeds v. City of Cedar Rapids, which announced the same decision with the same lineup of justices. Nolan Deeds sued both cities individually after his applications were rejected by both cities for the same reasons.

In the Marion case, the physician, who was employed by UnityPoint clinic, learned of Deeds’ MS diagnosis but did not disclose it to the city, and the city did not inquire as to why the physician said he was medically unqualified.

Thus, the Court held, that meant the city did not violate the Iowa Civil Rights Act, which defines unfair discrimination as “refusing to hire” an applicant “because of” a disability.

“When the City rescinded its job offer to Deeds, the City did not know he had MS,” Waterman wrote. “The City only knew that the physician reported Deeds was not medically qualified for the firefighter position.” Thus, he added, “We conclude that Deeds cannot show the City discriminated against him ‘because of’ his disability.”

The City of Marion had no duty to inquire as to why Deeds was deemed medically unqualified, the Court said, but Deeds did have a duty to request an accommodation for his disability. It cited a ruling from the U.S. Court of Appeals for the Seventh Circuit saying that, otherwise, a disabled employee might keep the disability a secret and later sue for failure to accommodate.

The Court also rejected Deeds’ argument that the UnityPoint physician who conducted the pre-employment physical acted as an agent for the City and, as such, the City had knowledge of his disability. Rather, the Court said, the physician acted as an independent contractor hired by the City and she exercised independent judgment.

Writing in dissent, Justice Appel said a “flat-out” ban on anyone with recent MS symptoms as opposed to an individualized medical assessment “is precisely the kind of stereotyping that the disability-discrimination provisions of the Iowa Civil Rights Act (ICRA) are designed to prevent.”

In this case, the City of Marion avoided the Civil Rights Act with a “don’t ask, don’t tell” approach by contracting out the physical examination to a third party and then not following up with the physician to find out why an applicant is deemed medically unqualified for a job.


Iowa Supreme Court sticks with its precedent on livestock nuisance suits

By: Rox Laird on June 29th, 2018

The Iowa Supreme Court sent a lawsuit back to Wapello District Court to make factual findings on whether an Iowa law that protects livestock-confinement operators from nuisance liability violates the affected neighbors’ constitutional rights.

The Court in Honomichl v. Valley View Swine handed down June 22 held that its 2004 decision in Gacke v. Pork Xtra remains the correct standard for trial courts to apply in assessing whether a State statute granting immunity to the livestock industry violates the Iowa Constitution as applied to a particular neighboring plaintiff.

[For more background on Honomichl v. Valley View Swine, see our earlier post previewing the oral argument.]

Both parties in the Honomichl appeal urged the Court to abandon the Gacke precedent. The plaintiffs who live near hog confinement buildings urged the Court to declare Iowa’s law granting immunity to livestock confinements unconstitutional on its face, not just as applied to specific neighboring plaintiffs. The defendant hog producers asked the Court to declare that Gacke has been rendered outdated by recent changes in livestock regulations.

The Court declined to do either in a decision written by Justice Bruce Zager and fully joined by Chief Justice Mark Cady and Justices Brent Appel, David Wiggins and Daryl Hecht. Justice Thomas Waterman filed a separate opinion joined by Justice Edward Mansfield concurring with the majority holding while saying Gacke was wrongly decided in the first place and is outdated.

“Despite these significant statutory and regulatory changes, the analytical framework set forth by the Gacke factors, even with its limitations, are still compatible with present conditions,” Zager wrote for the Court.

Recent changes in state regulation of livestock confinements “would appear to benefit the adjacent landowners, at least in theory,” Zager added, but the “fighting issue remains” whether the immunity statute as applied to the Honomichl plaintiffs is constitutional. “Neither party has suggested an alternative legal framework to utilize in such cases, and the Court is unable to discern a satisfactory alternative standard to apply.”


Employees with employment contracts can sue for wrongful termination, the Iowa Supreme Court rules for the first time

By: Rox Laird on June 19th, 2018

The Iowa Supreme Court ruled that employees working under an employment contract can sue their employer for wrongful discharge in violation of public policy.

The ruling in Ackerman v. State of Iowa was one of two handed down June 15 by the Court involving former Workforce Development employees who say they were fired in retaliation for their criticism of the agency. In the second case, Walsh v. Wahlert and State of Iowa, the Court ruled unanimously that former Chief Administrative Law Judge Joseph Walsh can proceed in his wrongful-termination lawsuit under the State’s whistleblower statute but not under a common law claim for wrongful termination in violation of public policy.

Former Administrative Law Judge Susan Ackerman sued after she was fired by former Iowa Workforce Development Director Teresa Wahlert. Ackerman argued she was fired in retaliation for testifying under subpoena to an Iowa Senate committee about what she viewed as improper efforts by administrators to push for unemployment-benefits decisions favorable to businesses.

The issue on appeal was whether Ackerman could sue for wrongful discharge even though she was protected by a collective-bargaining agreement as well as by Iowa’s whistleblower statute. The Court, in a 5-2 decision written by Chief Justice Mark Cady joined by Justices Brent Appel, David Wiggins, Daryl Hecht and Bruce Zager, said those alternative paths do not preclude Ackerman from proceeding directly to district court.

Justice Thomas Waterman, joined by Justice Edward Mansfield, dissented. Waterman argued that since Ackerman was protected by both the collective-bargaining agreement and the whistleblower statute, this was not the case for the Court to consider extending the right to sue beyond at-will employees.

The Iowa Supreme Court 30 years ago recognized for the first time that at-will employees have a right to sue if they are fired in retaliation for actions that are considered to be in the public interest. For example, an at-will employee can contest a termination for exercising the right to pursue a workers’ compensation claim, or for testifying truthfully in a legal proceeding.

The Court has said this common-law principle not only protects at-will employees from being wrongfully terminated but it discourages employers from abusing their power in a way that undermines declared public policy and principles established in legislation.

The question in Ackerman was whether the option of suing for wrongful discharge in violation of public policy is open to an employee working under an employment contract, such as a collective-bargaining agreement that provides employees with a remedy for resolving grievances.

The State argued that option was never meant to be available to those other than at-will employees, but the Court disagreed, saying a right extended to one group does not necessarily exclude other groups from the right. Employees covered by an employment contract are entitled to the same right as at-will employees, the Court said, because claims under employment contracts are limited to the interests of the parties whereas tort claims for retaliatory discharge address larger public policy concerns.

“Nowhere in our law does a contractual employee surrender, by virtue of signing an employment contract, the right to bring a claim for tortious conduct that harms not only the employee, but also the state’s clear public policy,” Cady wrote.

Although the Court held that contract employees in general may bring retaliatory discharge claims, this ruling left open the question whether Ackerman, as a state employee protected by a whistleblower statute, is precluded from bringing her common-law claim. The Court left that question, which was not fully litigated or raised on appeal, for the trial court to resolve on remand.


Iowa Supreme Court: Plaintiff’s attorney crossed a line, so the defendant gets a new trial

By: Rox Laird on June 7th, 2018

The Iowa Supreme Court sent an asbestos case back for a new trial because the plaintiff’s attorney prejudiced the defendant in closing arguments. And the Court clarified its previous ruling on punitive damages in such cases.

The decision in Kinseth v. Weil-McLain handed down June 1 was written by Chief Justice Mark Cady and joined by all members of the Court.

A Wright County jury awarded the estate of Larry Kinseth $4 million in compensatory damages and $2.5 million in punitive damages against boiler manufacturer Weil-McLain. Kinseth worked for more than three decades assembling and installing boilers and in the process inhaled asbestos dust and fibers from products used to seal boiler components. He died in 2009 of a type of lung cancer caused by inhaling asbestos.

The trial judge ordered plaintiff’s counsel at the outset not to make certain prejudicial statements to the jurors, including how much the defendant spent on lawyers and expert witnesses, Weil-McLain’s wealth or power relative to the plaintiff, and that the jury should “send defendant a message” in its verdict. The defendant, in seeking a new trial, said Kinseth’s attorney violated that order in her closing argument, but the judge ruled Weil-McLain waived the objection by making it too late in the process.

The Supreme Court disagreed, saying that failing to make a contemporaneous objection does not necessarily waive the objection, and in this case the mistrial motion was timely because it was made before the case was submitted to the jury.

Some of the objections to plaintiff counsel’s statements were warranted, some were not, the Court held. It was fair, for example, to attack the credibility of defense witnesses informed by studies sponsored by Weil-McLain, whereas counsel crossed the line by comparing the requested compensatory damages to the amount of money made by a defendant’s expert witness.

Plaintiff’s counsel clearly went too far, “perhaps most jarringly” the Court said, in stating that a punitive damages award between $4 million and $20 million is within the realm of what Weil-McLain spent on this litigation. “The sole purpose of these statements is to alert the jury that Weil-McLain has deep pockets and can afford a substantial award,” Cady wrote.

“When attorneys approach the jury box to present their closing arguments, they carry with them an immense responsibility,” Cady wrote, and “we observe a heightened sensitivity to inflammatory rhetoric and improper statements, which may impress upon the jury that it can look beyond the facts and law to resolve the case. Attorneys have a duty to refrain from crossing the admittedly hazy line between zealous advocacy and misconduct.”

The Court held that plaintiff’s counsel prejudiced the defendant with the theme that Weil-McLain spent exorbitant sums defending against asbestos suits rather than on victims, which the jury could address in its verdict.

On the question of punitive damages, Weil-McLain asserted that it did not deviate from industry standards in its conduct regarding asbestos, citing the 1993 Iowa Supreme Court ruling in Beeman v. Manville Corp. Asbestos Fund. Based on that decision, Weil-McLain argued, Kinseth must show that the company deviated from its peers.

But the Court said that argument ignores a distinction made in Beeman between defendants with specific knowledge of asbestos harms and defendants with only general industry knowledge of those harms.

Beeman instructs that if a defendant lacked specific knowledge of a potential harm and its conduct did not set it apart from others with the same general knowledge, any failure to warn was no more than negligence,” Cady wrote. “However, if a defendant had specific knowledge of the potential harms of asbestos and failed to act, it will not be shielded from punitive damages simply because its peers, who may or may not have had specific knowledge, similarly failed to act.”

Thus, the Court directed the trial court on remand to consider punitive damages in light of this clarification of Beeman. The Court also ruled on a number of other issues that may arise on remand, including allocation of fault and admissibility of evidence.


As Iowa Supreme Court heads into last month of its term, 28 decisions are still in the pipeline

By: Rox Laird on May 31st, 2018

The Iowa Supreme Court is expected to release decisions in five cases Friday, which will bring to 82 the number of cases disposed of so far in the 2017-18 term.

The Court heard its final round of oral arguments on April 10, and all cases have now been submitted. With the release of Friday’s decisions, 23 submitted cases will remain to be decided between now and the end of the term in one month.

At that point, the Court will have disposed of 105 cases, including nine attorney-discipline cases, which is about normal for the Court, which typically decides about 105 cases each year.

One of the five cases expected to be handed down Friday is Bandstra v. Covenant Reformed Church, on whether church elders failed to adequately supervise a male pastor accused of sexually exploiting female congregants, or whether the church is shielded by the religious-freedom clauses of the U.S. and Iowa constitutions.

Among the cases of note that remain in the pipeline:

Honomichl v. Valley View Swine, on whether an Iowa statute that gives livestock operations limited immunity from nuisance liability violates the inalienable rights clause of the Iowa Constitution, and Planned Parenthood v. Kimberly Reynolds, on the constitutionality of Iowa’s statutory abortion restrictions.


A choice between giving up constitutional rights and personal property is no choice at all, the Iowa Supreme Court rules

By: Rox Laird on May 31st, 2018

A person who claims ownership of property seized by the State should not have to choose between invoking constitutional rights or forfeiting the property, the Iowa Supreme Court ruled May 25 (In the Matter of Property Seized From Jean Carlos Herrera and Ferndando Rodgriguez).

Jean Carlos Herrera argued that seizure of the vehicle he was driving, $44,900 in cash and other items was the product of an illegal traffic stop under the Fourth Amendment of the U.S. Constitution and Article I Sec. 8 of the Iowa Constitution.

But the Pottawattamie District Court ruled that Herrera did not have standing to bring the constitutional claim because Iowa’s forfeiture statute mandates that persons claiming possession of seized property explain how they acquired ownership of or interest in the property. Herrera asserted that doing so would violate his rights under the Fifth Amendment against self-incrimination, but the District Court also rejected that argument as well.

The Supreme Court, in a 6-0 decision said the District Court was wrong on both counts. Because Herrera invoked his Fifth Amendment privilege, the trial court must first rule on the Fourth Amendment search question to determine whether the property can be used as evidence in the civil forfeiture proceeding. On a separate question, the Court ruled that co-claimant Fernando Rodriquez is entitled to attorney fees for his efforts to retain possession of the seized vehicle.

The decision was written by Justice Thomas Waterman and joined by Chief Justice Mark Cady and Justices Edward Mansfield, Brent Appel, David Wiggins and Bruce Zager. Justice Daryl Hecht did not participate in the decision.

Iowa’s forfeiture statute allows the State to seize property used or obtained in a crime. A person who claims ownership of or an interest in seized property must – under penalty of perjury – state his or her interest in the property, including “the date, the identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property.”

Because Herrera invoked his Fifth Amendment right to refuse to answer those questions to avoid self-incrimination, the Court said the trial court must first rule on Herrera’s motion to suppress the evidence obtained in the vehicle search.

Waterman cited a 1991 Iowa Supreme Court forfeiture decision that said the State cannot use evidence obtained in violation of the Fourth Amendment in a forfeiture proceeding.

“The outcome of the motion to suppress determines what evidence the state can rely on during the forfeiture proceeding,” Waterman wrote. “If Herrera ultimately succeeds on his motion to suppress, the State will be unable to rely on the suppressed evidence in proving the probable cause required for the forfeiture.”

The Court said Herrera has standing to challenge the forfeiture because his privilege claim under the Fifth Amendment “trumps” the mandate in the forfeiture statute that he testify as to how he came to have an interest in the seized property. Otherwise, Waterman wrote, Herrera faces a “difficult choice between asserting his privilege against self-incrimination or foregoing his claim for return of the contested property.”

Finally, the Court held that Fernandez, Herrera’s co-claimant who is the registered owner of the seized vehicle, is entitled to attorney fees for his efforts to reclaim the vehicle.

The State argued that since it voluntarily withdrew its objections to Fernandez’s claim to the vehicle he was not entitled to attorney fees because he was not the “prevailing party.” The Court disagreed, noting that the litigation over recovering the vehicle took place over five months. “The State’s acquiescence to the vehicle’s return after months of contested litigation is tantamount to a voluntary dismissal that in other contexts has been held sufficient to support a fee award,” Waterman wrote.


The Iowa Civil Rights Act doesn’t reach beyond the state’s borders, Iowa Supreme Court rules

By: Rox Laird on May 21st, 2018

An Iowan working for Deere & Co. in China cannot sue for employment discrimination because the Iowa Civil Rights Act does not reach beyond the borders of Iowa, the Iowa Supreme Court ruled May 18.

Matthew Jahnke was brought back to Iowa from his China assignment and demoted following an internal investigation that found his sexual relationships with two Chinese women under his span of control violated Deere’s code of conduct. Jahnke sued under the Iowa Civil Rights Act for disparate treatment arguing he was treated differently because of his age – 60 at the time of the demotion – and the fact that he is a Caucasian male while the two younger Chinese women were not similarly disciplined.

The Court, in a 5-0 decision written by Justice Bruce Zager joined by Chief Justice Mark Cady and Justices Brent Appel, David Wiggins and Thomas Waterman, rejected Jahnke’s arguments. The Court held that the Iowa Civil Rights Act does not apply extraterritorially; nor can Jahnke bring a claim under the Iowa statute because neither he nor Deere & Co. was located in Iowa for purposes of the alleged discriminatory act.

Justices Daryl Hecht and Edward Mansfield did not participate in the decision.

Jahnke, a Deere employee since 1998 last assigned to its Ankeny plant, was sent to China in 2011 as a project manager in Harbin, China, overseeing construction of a new plant and later as factory manager once production began.

In 2014 Deere officials based in China began an investigation into Jahnke’s relationships with the two Chinese women, one a financial controller assigned to assist him, and the other a contract employee hired as a language tutor. Following the investigation, Jahnke was removed from his position in China, demoted and reassigned to the company’s factory in Waterloo at a reduced salary grade.

The justices concluded that Jahnke does not have a disparate-action claim under the Iowa Civil Rights Act because, under its prior rulings, the Court presumes that a statute “lacks extraterritorial reach unless the Legislature clearly expresses otherwise.” Nothing in the Iowa Civil Rights Act expressly states or indicates that it applies outside of Iowa’s or the nation’s boundaries, the Court said.

When the Legislature intends that a statute operate extraterritorially, it has said so, as it did, for example, by extending the workers’ compensation law and the Tort Claims Act beyond the borders of Iowa, Zager wrote.

“It is telling that the Legislature has clearly indicated its intention for other Iowa statutes to apply extraterritorially by including specific language expressing this intent, yet declined to include comparable language in the ICRA,” Zager wrote. “The Iowa Legislature is aware of our presumption against extraterritoriality and has made this awareness clear in other Iowa statutes. Consequently, if the Iowa Legislature wanted the ICRA to apply extraterritorially, it would have expressly indicated this intent in the statutory text. Yet, the Iowa Legislature did not do so, and it is not for us to alter the ICRA by expanding it to apply extraterritorially.”

Moreover, the Court said applying the Iowa Civil Rights Act outside Iowa creates potential conflicts with the laws of other states and countries, and Iowa should respect the sovereignty of other states rather than impose its policy decision on the employment practices of those states. Because of such concerns for interstate harmony, Zager wrote, a majority of U.S. courts have declined to apply human-rights statutes beyond their own jurisdictions.

Jahnke argued that the Iowa Civil Rights Act nonetheless applies in his case because he is an Iowan who was working on a temporary assignment overseas, and the illegal discrimination he alleged was based on decisions made in Iowa by Iowans. The Court rejected that line of argument, as well, because all of the actions Jahnke cited occurred in either China or Illinois.

At the time of the alleged discrimination, Jahnke lived and worked in China for a Deere subsidiary that operated under the laws of that country. The investigation and recommendation that led to his disciplinary demotion and return to the U.S. was conducted by Deere employees in China and approved and carried out by Deere management based in Moline, Ill.

“Jahnke’s petition does not support his claim that Iowa, or more specifically Polk County, is the proper venue for his employment discrimination claim,” Zager wrote. “Iowa is not the principal place of business for Deere. The only connection with Polk County was that John Deere Des Moines Works was the last place that Jahnke worked prior to his expatriation to China. ”

This is not to say Jahnke had nowhere else to turn. He could have brought a federal employment-discrimination claim under Title VII and the Age Discrimination in Employment Act, Zager wrote, or he may have had a claim under the Illinois Human Rights Act, or the laws of China. But not the Iowa Civil Rights Act.

[Disclaimer: Deere & Co. was represented in this case by Nyemaster Goode attorneys Frank Harty and Debra Hulett.]


Legal malpractice claim tossed by the Iowa Supreme Court because the aggrieved client waited too long to sue

By: Rox Laird on May 15th, 2018

A client who accused her attorney of malpractice missed the deadline for filing a lawsuit against him, according to the Iowa Supreme Court.

Michelle Skadburg said she was acting on the advice of her attorney when she used her late mother’s $107,000 estate to pay the estate’s debts, which exceeded the assets. She sued the attorney, Gary Gately of Whitfield & Eddy, alleging he failed to advise her that proceeds from the estate’s life-insurance policy and a 401(K) account were exempt from any claims against the estate.

Gately denied Skadburg’s malpractice claim and the Cerro Gordo County District Court dismissed the suit on summary judgment because it fell outside the statute of limitations. The Iowa Supreme Court upheld that ruling in a 6-0 decision handed down May 11. (Justice Daryl Hecht did not participate in the case.)

The single issue, Justice David Wiggins wrote for the Court, is whether Skadburg filed the lawsuit within the statute of limitations. In this case, that is five years from when her cause of action accrued, or when she suffered an actual injury. Since that occurred in 2008, when she paid the creditors with exempt funds, allegedly on Gately’s advice, her suit filed in August 2015 missed the deadline by two years.

Skadburg asserted three exceptions to the statutory limit – the discovery rule, the continuous-representation rule and the doctrine of fraudulent concealment – but the Court held none of the three exceptions applied.

Under the discovery rule, the statute of limitations clock starts ticking when plaintiffs discovered or should have discovered their injury. In Skadburg’s case, that was March 2010, when she wrote an email to Gately that showed she was aware of potential negligence by Gately. Nor was her cause saved by the continuous-representation rule or the fraudulent-concealment doctrine, Wiggins wrote, also based on when she became aware of problems with Gately’s advice.


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