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IN THE COURT OF APPEALS OF IOWA No. 0-789 / 10-0180 Filed December 8, 2010

CHARLES FURNALD, Plaintiff-Appellant, vs. ANTHONY HUGHES and EMCASCO INSURANCE COMPANY, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, William H. Joy, Judge.

Plaintiff appeals the district courts ruling dismissing his second lawsuit for failure to meet the burden of proof under Iowa Code section 614.10 (2009). AFFIRMED.

David Hirsch of Harding Law Office, Des Moines, for appellant. Jon A. Vasey of Elverson, Vasey, & Peterson, L.L.P., Des Moines, for appellee Anthony Hughes. Scott Wormsley of Bradshaw, Fowler, Proctor, and Fairgrave, P.C., Des Moines, of appellee EMCASCO Insurance Company.

Considered by Eisenhauer, P.J., and Potterfield and Doyle, JJ.

2 EISENHAUER, P.J. Charles Furnald appeals the district courts ruling dismissing his second lawsuit for failure to meet the burden of proof imposed under Iowas savings statute, Iowa Code section 614.10 (2009). We affirm.

I. Background Facts and Proceedings. On July 28, 2006, Charles Furnald was involved in a motor vehicle collision while at work. On October 17, 2007, Furnald filed a personal injury suit against Hughes, and included an under-insured/uninsured claim against EMCASCO Insurance Company. By an order filed April 30, 2008, the jury trial was set for April 14, 2009. At some point, prior to February 27, 2009, according to Hughes, the parties agreed to binding arbitration and scheduled it for April 14, the day of the trial. On April 3, 2009, eleven days before the arbitration and trial were to begin, Furnald filed a dismissal without prejudice. On June 29, 2009, Furnald filed an identical personal injury suit against Hughes and EMCASCO, asserting the same facts as those in the October 2007 petition except it also asserted the petition was "brought under [Iowa Code section] 614.10."1 Hughes filed his answer and asserted Furnalds suit was not brought within the applicable two-year statute of limitations and was thus barred.2 Hughes filed a motion for summary judgment arguing Furnalds second petition was not saved by section 614.10. Furnald resisted, stating he had a
Iowa Code section 614.10 provides: If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first. 2 Iowa Code section 614.1(2) provides actions founded on injuries to the person must be brought within two years. This two-year period had expired before Furnald dismissed his first lawsuit.
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3 continuing decline in his physical functioning as a result of the motor vehicle collision. He stated "[a]s the arbitration date drew close, he began having more problems with his neck and shoulder, with pain and weakness radiating to his left arm." He asserted the sole reason for the dismissal was to allow a better

evaluation of his continuing decline. He stated he could have tried the matter at an earlier date, "but his medical condition was such that it would have been less certain for the physicians to state what his permanent disability will be." "Due to the evolving nature of the injuries," and "given the proximity of the trial date and arbitration," Furnald "elected to cut the Gordian knot," and simply dismiss and refile, "rather than fight the continuance battle." Following an unreported hearing on the motion, the district court granted Hughess motion, finding Furnald had failed to meet the burden of proof imposed under section 614.10. Furnald appeals. II. Scope and Standards of Review. We review the district courts summary judgment rulings for the correction of errors at law. Iowa R. App. P. 6.907 (2009); Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 N.W.2d 869, 873 (Iowa 2007). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 199 (Iowa 2007). A fact question arises if reasonable minds can differ on how the issue should be resolved. Walderbach, 730 N.W.2d at 199. The court reviews

4 the record in a light most favorable to the opposing party. Frontier Leasing Corp. v. Links Eng'g, L.L.C., 781 N.W.2d 772, 775 (Iowa 2010). opposing party every legitimate inference the record will bear. We afford the Id. "No fact

question exists if the only dispute concerns the legal consequences flowing from undisputed facts." (citation omitted). III. Discussion. Generally, "when an action is dismissed without prejudice, the statute of limitations will bar a subsequent suit if the statute runs in the interim." 54 C.J.S. Limitation of Actions

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