United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 97-1070

___________ Gregory P. Vrban, *
* Appellant, *
* Appeal from the United State s District
v. * Co urt for the Southern Distric t of
* Iowa. Deere & Company, doing business as * John Deere Company, *
* Appellee. *

___________ Submitted: September 11, 1997 Filed: November 20, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge. Gregory P. Vrban appeals from the di strict court's decision granting Deere & Company's motion to dismiss his wrongful discharge action. W e
reverse.

I. BACKGROUND

For the purposes of the motion to dismiss, the district cour t presumed the followin g facts were true. Gregory P. Vrban worked at Deere & Company (Deere) as an at-will employee. During the course of hi s employment with Deere, he sustained

## -2-

work-r elated injuries. Subsequently, Vrban filed a Petition fo r Arbitr ation with the Iowa Industrial Commissioner claiming that he wa s ent itled to compensation for his work-related impairments. On June 26 , 1991, Deere constructively discharged Vrban in retaliation for pursuing th e compensation. On June 25, 1996, Vrban commence d this suit in state court claimi ng Deere wrongfully discharged him in violation of Iowa publi c policy. Deere removed the action to federal cou rt and then filed a motion to dismiss the action as untimely.
The district court found that the two-year statute of limitatio ns for "inju ries to the person" barred Vrban's action. Iowa Code § 614.1(2)

. Vrban appeals, claiming that the five-year limitation period for "all othe r actions not otherwise provided for" in section 614.1(4) applies.

II. DISCUSSION

The so le issue on appeal is whether, under Iowa law, a two-year o r five-year statute of limitations applies to a wrongful discharge action. We hold that the five-year statute of limitations applies.

We review de novo the district court's application of Iowa Code § 614.1. See Davis v. Liberty Mut. Ins. Co. , 55 F.3d 1365, 1367 (8th Cir. 1995). Since the Iowa courts have not addressed this specific issue, we must determine what the Iowa Supreme Court would decide. See Garoogian v. Medlock , 592 F.2d 997, 1000 (8th Cir. 1979).

Deere first asserts that a two-year statute of limitations applie s to this cause of acti on because a wrongful discharge action is founded on "injuries to the person." Iowa Code § 614.1(2) (two year limitation perio d for actions "founded on injuries to the person or reputation, includin g injuries to relative rights, whether based on contract or tort, or for a statute penalty"). Alternatively, Deere asserts that Vrban's action is

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fou nded on a claim for wages, which is also subject to a two-yea r limitation period. See Iowa Code § 614.1(8). Vrban contends that hi s action is "not otherwise provided for," and thus , the five-year limitation period contained in section 614.1(4) applies.
Deere contends that section 614.1(2) applies because the Iowa S upreme Court characterizes a wrongful discharge action as a tort claim. However, the mere fact that an action is a tort claim does not automatically trigge r the two-year statute of limitations contained in section 614.1(2). See, e.g. , Clark v. Figge , 181 N.W.2d 211, 214-16 (Iowa 1970) (five-yea r limita tion period applies to the tort of intentional interference wit h prospective economic advantage). In ascertaining the appropriate statute of limitations, we must apply the analysis utilized by the Iowa Suprem e Court. The Iowa Supreme Court has held that, "[i]n determining th e appropriate statute of limitations for a specific cause of action, the Cod e requires us to look to the foundation of the action." Sandbulte v. Farm Bureau M ut. Ins. Co. , 343 N.W.2d 457, 462 (Iowa 1984). Looking to th e foundation "means that the appropriate statute of limitations is to b e
asce rtained by characterizing the actual nature of the action." Id

. Theref ore, "we must determine, as best we can, which of the types o f actions described in the statute most nearly characterizes" the action tha t Vrban has brought. S cott v. Sioux City , 432 N.W.2d 144, 147 (Iowa 1988).

The Iowa Supreme Court recognized the cause of action for wrongfu l discharge in Springer v. Weeks and Leo Co. , 429 N.W.2d 558, 560 (Iowa 1988 ) ( Springer I ). Springer I involved an at-will employee that alleged he r employer retaliated against her for seeking workers' compensation benefits

. Id

. at 558. The court held that "a cause of action should exist fo r tortious interference with the contract of hire when the discharge serves to frustrate a well-recognized and defined public policy of the state. " Id. a t 560. Because Iowa has a well-recognized policy that encourage s employees to seek wor kers' compensation benefits, the court permitted the action. Id. at 561.

## The Iowa Supreme Court revisited Springer I when the employer appealed the 1 

## ul timate jury verdict. See Springer v. Weeks and Leo Co. , 475 N.W.2d 630 (Iow a 1991) ( Springer II ). The employer argued that the trial court should have require d proof of a tortious interference claim. Id. at 632. The court held that prior reference to the a ction as "'tortious interference with a contract for hire'" confuses the issu e because it is simply a wrongful discharge claim which does not require a showing of tortious interference. Id. at 633 (quoting Springer I , 429 N.W.2d at 560). Nonetheless, the Iowa Supreme Court has not modified its pronouncement in Springer I and Niblo that a wrongful discharge action is related to the common law tort of imprope r interference with an existing business relationship. For our purposes, the distinction between an action for improper interferenc e 2 

## with an existing business relationship and improper interference with a prospectiv e economic advantage is a distinction without difference. See Springer I , 429 N.W.2d at 561 (referring to Clark

as the case where "we recognized the tort of interference with
a bus iness relationship"); see also Clark , 181 N.W.2d at 214 (referring to the tort a s "intentional interfere nce with prospective economic advantage, or however the wrong is labeled").
-4- In rejecting the employer's contention that only the legislatur e should create this new tort, the court stated that the action is "mor e nearly related to the common-law tort which has been recognized fo r improper interference with existing business relationships than with any single substantive to pic with which the legislature might deal." Id. In Niblo v. Parr Mfg. , 445 N.W.2d 351, 354 (Iowa 1989), the court agai n compared a wrongful discharge action with a claim for tortious interferenc e with a b usiness relationship. Thus, we find that the statute o f 1 lim itations applicable to a tortious interference with a busines s relationship claim pertains to Vrban's claim.

In Clark , the Iowa Supreme Court rec ognized the tort of "intentional interference with pro spective economic advantage" and determined that the five-year statute of limitations was appropriate for the cause of action. 2 Clark , 181 N.W.2d at 214-16. The court narrowly construed the two-yea r statute of limitation s stating, "so far as we are concerned with it here, [section 614.1(2)] covers defamation, torts causing bodily injury or death , and harm related to those wrongs." Id. at 215 (emphasis added). Next,

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the court stated that the tort of intentional in terference with a business relationship "does not seem to fall within those classes." Id. Afte r examining the proprietary nature of the action, the court held that th e five -year limitation period, section 614.1(4), applied because "if th e action is not for injuries to property, then we think it must surely be on e not otherwise provided for." Id. at 216 (quotations omitted).
In light of the Iowa Supreme Court's characterization of a wrongful discharge action, we find no merit in Deere's ar gument that Vrban's action is "founded on injuries to the person." Iowa Code § 614.1(2). The Iowa Supre me Court limits the meaning of "injuries to the person" to bodil y injuries or death. See Brown v. Liberty Mut. Ins. Co. , 513 N.W.2d 762, 76 4 (Iowa 1994) (action for bad-faith failure to pay workers' compensatio n benefits is not founded on an injury to the pers on because the plaintiff's injuries "clearly do not stem from bodily hurts or slander"). Moreover, the Iowa Supreme Court rejected Deere's characterization with respect to
a sim ilar common-law tort, intentional interference with a busines s relationship. See Cl ark , 181 N.W.2d at 215. Therefore, section 614.1(2) does not apply to this cause of action.

Deere alternatively argues that an action for wrongful discharg e constitutes a claim for wages and thus, Iowa Code § 614.1(8), bars th e claim. We disagree. Section 614.1(8) provides a two-year limitatio n per iod for actions "founded on claims for wages or for a liability o r penalty for failure to pay wages." Vrban does n ot claim that Deere failed to pa y him wages for services rendered. Rather, Vrban merely request s compensatory and punitive damages. The potentia l recovery of compensatory damages, including lost income, does not convert the foundation of Vrban's action to one for wag es. See Sandbulte , 343 N.W.2d at 462 (stating "[i]t is the natu re of the right sued upon and not the elements of relie f requested that governs the selection of the appropriate statutory period") ; Venard v. Winter , 524 N.W.2d 163, 165 (Iowa

## Deere contends that Kulinski v. Medtronic Bio-Medicus, Inc. , 112 F.3d 36 8 3 

## (8th Ci r. 1997) demonstrates that this action constitutes an action founded on a claim for wages. However, Kulinski involved a Minnesota statute that differs significantly from Iowa Code § 614.1(8). Id. at 371. Therefore, we find Kulinski inapplicable to the present case.
-6- 1994) (the "determination turns on the nature of the right sued upon and not on the elements of relief sought for the claim"). 3
Deere does not cite any and we have not found any Iowa case law that supports its contention that the Iowa Supreme Court would characterize a wrongf ul discharge action as one founded on a claim for wages

. Consequently, section 614.1(8) does not apply to this cause of action.
Deere has not asserted that any othe r limitation period bars Vrban's action. Therefore, we find that the five-year l imitation period contained in section 614.1(4) applies to Vrban's action.

III. CONCLUSION

For the foregoing reasons, we reverse and remand for furthe r consideration consistent with this opinion.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.