ATO. 95-234 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1996

DIANA L. WEBB,

Plaintiff andAppellant,

v. T.D., D.C.; R.K.S., M.D.; and C.H.A., M.D.,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable Diane G. Bars, Judge presiding.

COUNSELOFRECORD:

For Appellant: John M. Morrison, Meloy &Morrison, Helena, Montana For Respondents: Richard F. Cebull, Brown! Gerbase, Cebull, Fulton, Harman &Ross, Billings, Montana (for Respondent R.K.S., M.D.) Ronald L. Lodders, Crowley, Haughey, Hanson, Toole &Dietrich, Billings, Montana (for Respondent C.H.A., M.D.)

-<.j 'Submitted on Briefs: November 21, 1995 

### FE!?201996 Decided: February 20, 1996 Filed: 2.j I CLC+(firi.. ;;;,;xi;i;.:cI'r STATEOFiric;;.'rUi%,&

### Justice Terry N.Trieweiler delivered the opinion of the Court.

On September 9, 1991, Diana Webbfiled a claim with the Medical Legal Panel against R.K.S., anorthopedist, andC.H.A., a radiologist. After the Panel rendered its decision, Webbfiled a timely complaint against the twodoctors inthe District Court for the Thirteenth Judicial District in Yellowstone County. On August 2, 1993, Webbfiled anapplication with the Chiropractic Legal Panel against T.D. andnamedR.K.S. andC.H.A. asnecessary and proper parties to the action. OnAugust 3, 1993, Webb voluntarily dismissed the pending district court action against R.K.S. andC.H.A. without prejudice. TheChiropractic Legal Panel rendered its decision onNovember 16, 1993. OnDecember 13, 1993, Webbfiled asecond complaint in the Thirteenth Judicial District Court against all defendants. OnFebruary 3, 1995, the District Court granted R.K.S.'s andC.H.A.'s motions for summaryjudgment on the ground that Webb's complaint was barred by the applicable statute of repose. Webbappeals the District Court's order which granted summaryjudgment. Wereverse the District Court andremand for further proceedings. There is oneissue onappeal: Is Webb's complaint barred bythe five-year statue of repose set forth at §27-z-205, MCA? FACTUALBACKGROUND Diana Webbsuffered aback injury during the course of her employment in May1986. After her accident, Webbconsulted T.D.,
a chiropractor, concerning her symptoms. In October 1986, her 2employer's workers' compensation insurer referred her to R.K.s., an

orthopedist, for further evaluation. OnOctober 7, 1986, R.K.S. performed aclinical evaluation and ordered aCT-scan, which was read by C.H.A., aradiologist. The next day, R.K.S. wrote Webba letter in which he stated that he had reviewed the CT-scan and it looked "excellent." He assigned Webb a two percent impairment rating and released her to perform heavy work without restriction. In 1989, while Webbwasworking for aconstruction company in California, she suffered a severe aggravation of her earlier injury. Afterward, onAugust 22, 1989, Webbagain consulted T.D. about her back condition. T.D. treated Webbuntil the end of 1989 without referring her to aphysician for evaluation. In January 1990, allegedly at the insistence of Webb's husband, T.D. referred Webb to Arturo Echeverri, a neurologist. Dr. Echeverri ordered magnetic resonance imaging of Webb's spine, which revealed "a massive herniation of the L-5 disc on the right side compressing the S-1 nerve root as well as the rest of the cauda equina." Neurosurgeon Maurice Smith performed a laninotony, but Webb was left with residual nerve damage asaresult of prolonged nerve root compression from the massively herniated and fragmented disc. The January 10, 1990, MRI results were the first indication to Webb that she had adisc herniation. On September 9, 1991, Webb filed a medical legal panel application naming R.K.S. and C.H.A., in which she alleged that R.K.S. performed a negligent physical examination and C.H.A. negligently interpreted the CT-scan on October 7, 1986. The

### Medical Legal Panel rendered its decision onMarch 18, 1992. On

April 16, 1992, within thirty days of the Panel decision, Webb filed a complaint against R.K.S. and C.H.A. in the Thirteenth Judicial District Court inYellowstone County. Thesummonseswere issued onthat date, but were never served. OnJune29, 1992, Webb'sattorney died in anairplane crash. OnJune 29, 1993, a new attorney appeared on Webb's behalf. Shortly thereafter he decided that T.D. should have been a defendant in the original action. Accordingly, onAugust 2, 1993, Webbfiled anapplication with the Chiropractic Legal Panel for review of her treatment byT.D. and namedR.K.S. and C.H.A. as necessary andproper parties to the action. OnAugust 3, 1993, Webbvoluntarily dismissed the pending district court action against R.K.S. and C.H.A. without prejudice. The Chiropractic Legal Panel rendered its decision onNovember 16, 1993. Webbfiled her second complaint in District Court against all defendants on December 13, 1993, within thirty days of the Chiropractic Legal Panel decision. OnFebruary 3, 1995, the District Court granted the motions for summary judgment filed byR.K.S. andC.H.A. Thecourt held that Webb's injury occurred in October 1986whenthe defendants failed to diagnose adamagedintervertebral disc; that six years hadpassed from the date of injury before Webbfiled her complaint in district court; andtherefore, that Webb's complaint is barred bythe five-year statute of repose found at 527-2-205, MCA.

4DISCUSSION

Is Webb's complaint barred bythe five-year statute of repose set forth at 527-2-205, MCA? This Court reviews adistrict court's order granting summary judgment based on the same criteria applied originally by the district court. Brunerv.YellowstoneCounty (Mont. 1995), 900 P.2d 901, 903, 52St. Rep. 699, 700. Rule 56(c), M.R.Civ.P., provides that summary judgment is proper only when "there is nogenuine issue as to any material fact and

. . the moving party is entitled to judgment as amatter of law." In this case, the District Court granted summary judgment in favor of R.K.S. andC.H.A. because it held that Webb's malpractice claim was barred by the five-year statute of repose found at §27-2-205, MCA. Section 27-2-205, MCA (1985), in effect at the time of Webb's treatment in 1986, provides: Action for injury ordeath against aphysician or surgeon

. . [or] chiropractor

. . . based upon such person's alleged professional negligence or for rendering professional services without consent or for error or omission in such person's practice, shall be commenced within 3years after the date of injury or 3years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last, but in nocase may such action becommenced after 5vears from the date of iniurv. However, this 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 andwhich 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 added).Webbcontends that the five-year statute of repose set forth

in §27-2-205, MCA, did not begin to run until 1989 because the "date of injury" was the date onwhich she herniated the bulging disc which respondents failed to diagnose. Because she filed her complaint in 1993, she contends that it was filed well within the five-year period. The defendants contend, and the District Court agreed, that Webb's date of injury, if there was an injury, occurred onOctober 7, 1986, when the defendants allegedly failed to diagnose her true condition. Webbfurther asserts that even if the "date of injury" was in 1986, when R.K.S. and C.H.A. allegedly misread her CT-scan, the statute of repose still would not have run because the statute was tolled continuously from the time she filed her original application with the Medical Legal Panel. Based onour resolution of this issue, we decline to address the first issue, and therefore, draw no conclusion about Webb's "date of injury." The date of discovery has not been contested, and therefore, is not an issue in this case. Section 27-2-205, MCA, requires that a medical malpractice action be "commenced" within three years from the date of injury or within three years after the plaintiff discovers the injury, but in
no case, later than five years from the date of the injury. Section 27-2-102(l) (b), MCA, states that U[flor the purposes of statutes relating to the time within which an action must be commenced

. . . an action is commenced when the complaint is filed." Section 27-6-702, MCA(1985), provides that "[tlhe running 6of the applicable limitation period in a malpractice claim is

tolled upon receipt by the director of the application for review

. . [and1 does not begin again until 30 days after

. . the panel's final decision

. . . .'I Diana Webbfiled her application
on September 9, 1991, and effectively tolled the running of the applicable limitation period four years, eleven months, and two days after the date of defendants' alleged malpractice on October 7, 1986. Her action was commenced on April 16, 1992, before the limitation period began to run again, and therefore, within five years from the date defendants rely onasthe "date of injury."Webb's district court complaint was still pending when she filed her application with the Chiropractic Legal Panel which named T.D. as the subject care provider, and R.K.S. and C.H.A. as necessary and proper parties to the action. The statute of limitations remained tolled throughout the pendency of the Chiropractic Legal Panel decision pursuant to 527-12-701, MCA, which provides:

(1) Uponreceipt of anapplication bythe director, the running of an applicable limitation period in a malpractice claim is tolled as to each chiropractic physician namedasaparty andasto each other person or entity named as anecessary or proper party for acourt action that might subsequently arise out of the factual circumstances set forth in the application.

(2) Therunning of the applicable limitation period in amalpractice claim does not begin again until: (a) 30 days after an order of dismissal, with or without prejudice against refiling, is issued; or (b) after the panel's final decision is entered in the permanent files of the panel and a copy is served upon the complainant or his attorney.

7The Chiropractic Legal Panel rendered its decision onNovember 16,

1993. Webbfiled her second complaint in District Court in which she named all three defendants on December 13, 1993, fewer than thirty days after the Panel's decision was rendered. In this case, both parties agree that the statute of limitations for Webb's claim wastolled during the pendency of her application before the Medical Legal Panel, and for thirty days thereafter. The parties disagree, however, onthe effect of Webb's first complaint in the District Court, which wasfiled onApril 16, 1992, andwhich wasvoluntarily dismissed onAugust 3, 1993. Webb maintains that the filing of the complaint tolled the statute of limitations, and that the statute remained tolled while that suit

was pending. Webbfurther maintains that her voluntary dismissal of the district court action did not have the effect of nullifying that tolling period, because her claim continued to pend in another forum. The respondents, however, contend that the filing of a complaint which was never served onadefendant does not toll the statute of limitations. They further contend that Rule 41(e), M.R.Civ.P., prohibits the refiling of aclaim against adefendant when the plaintiff has failed to serve asummons and the complaint before its dismissal. Rule 41(e), M.R.Civ.P., provides: Noaction 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 3years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the 8same shall have been commenced, onits ownmotion, or on

the motion of any party interested therein, whether named in the complaint asaparty or not, unless summons shall have been issued within 1year, or unless summons issued within oneyear shall have been served andfiled with the clerk of the court within 3years after the commencement of said action, or unless appearance has been madebythe defendant or defendants therein within said 3 years. Whenmore than onedefendant has been named in anaction, the action maywithin the discretion of the trial court be further prosecuted against any defendant who has appeared within 3years, or upon whomsummons which has been issued within 1year has been served and filed with the clerk within 3years as herein required. Respondents contend that pursuant to Rule 41(e) Webbwasprohibited from refiling her claim because she failed to serve the summons on her first complaint before shevoluntarily dismissed it. They cite FirstCall,Inc.V.CapitalAnsweringService,Inc. (Mont

. 1995), 898 P.2d 96, 52 St. Rep. 496, for the proposition that the dismissal of Webb's first complaint bars her second complaint based onprinciples of res judicata

. Wedisagree, however, with respondents' characterization of FivstCall. In FirstCall, the district court dismissed the plaintiff's complaint without prejudice because the summons was not served within three years, as required by Rule 41(e), M.R.Civ.P. Weheld that when a district court dismisses a complaint because of a failure by the plaintiff to serve the summons within three years, the action may not be refiled. In this case, however, the court did not dismiss the complaint, andWebbdid not fail to serve her
summons within three years from the date on which she filed her complaint. In fact, the service of Webb's summons and second comolaint was accomplished within three years from the date on

9which the first complaint was filed. FirstCall and Rule 41(e) are,

therefore, inapplicable to this case. Wehold that the statute of limitations and the statute of repose are tolled by the commencement of an action, and that an action is commenced when a complaint is filed. Section 27-2-102(l) (b), MCA. &e&o Rule 3, M.R.Civ.P. This interpretation is consistent with the language of § 27-2-205, MCA, and is supported both by Montana case law, and by the case law of other jurisdictions. See,e.g.,Blasdelv.MontanaPowerCo. (1982) , 196 Mont. 417, 426, 640 P.2d 889, 894 (holding that "the statute of limitations

was tolled when the first complaint was filed"); Kingv. Lujan (N.M. 1982), 646 P.2d 1243, 1244 (holding that the "[fliling of the complaint is commencement of the action which generally tolls the applicable statute of limitations"). In this case, the statute of limitations was tolled on April 16, 1992, when Webb filed her complaint with the District Court. The question is whether Webb's voluntary dismissal of the suit without prejudice onAugust 3, 1993--one day after she filed her chiropractic legal panel application--had the effect of nullifying the prior tolling of the statute. Wepreviously held in Tietjenv.Heberlein (1918), 54 Mont. 486, 488, 171 P. 928, 928, that where anaction is voluntarily dismissed prior to the commencement of asecond action, the first action does not toll the statue of limitations. That decision was based on the predecessor of Montana's "saving statute," which provides that if an action is

10

### commencedwithin the applicable statute of limitations, and is

thereafter terminated "in any other manner than bv voluntary discontinuance," the plaintiff maycommenceanewaction for the
samecause after the expiration of the time 

### solimited andwithin
oneyear after suchatermination. Section 27-Z-407, MCA(emphasis added). Tietjen

### is not dispositive of the tolling issue raised in this case, however. Inthe first place, Tietjen

### wasneither amedical nor chiropractic malpractice case, but rather, wasanaction brought to
recover the amount of asuccession tax. Furthermore, Tieijen

### was decided in 1918, years prior to 1977whenthe MontanaMedical Legal Panel Act wasenacted, andyears prior to 1989, whenthe Montana Chiropractic Legal Panel Act was enacted, each Act with its respective tolling provisions. Sections 27-6-702 and27-12-701, MCA. Thesameis true ofthepredecessor to §27-2-407, MCA,which
wasoriginally enacted in the 1870s. Accordingly, neither the statute nor our decision could have accounted for thetolling provisions ofthe PanelActs. While Tietjen 

### correctly applied the "saving statute" to the facts at issue in that case, given the legislature's enactment years later of specific tolling provisions uniquely applicable to medical and chiropractic malpractice cases pending before the malpractice panels, weconclude that neither §27-2-407, MCA,nor our decision in Tietjen, 

### is controlling based on the facts here. Rather, §§27-f-702 and27-12-701, MCA,specifically provide for tolling

11while aclaim is pending before the respective panels, and it is

those statutes which must begiven controlling effect in amedical
or chiropractic malpractice case where, asin the instant case, the facts implicate both the statute of repose, §27-2-205, MCA, and the panel tolling statutes. Applying the panel tolling statutes compels the conclusion that, in a medical or chiropractic malpractice case, if a plaintiff's first complaint was timely filed but is voluntarily dismissed while the case is pending before amalpractice panel in proceedings which name the original defendants as necessary parties, §§ 27-2-702 and 27-12-701, MCA, provide, as to those originally nameddefendants, acontinuous tolling "bridge" between the first complaint andthe subsequently filed complaint, assuming the latter is timely filed under the Panel Acts and names the original defendants. Furthermore, Montana's "saving statute" does not address the situation that presents itself in this case in which Webb's cause of action was tolled by a separate action filed before the dismissal of the original suit. Whenthe second action is filed prior to dismissal of the original suit, wehold that the commenced action continues to pend, and so long as the second forum has jurisdiction over the action the statute of limitations remains tolled, even after the voluntary discontinuance of the first action. Only byallowing and encouraging consolidation of actions in this manner can the objectives of avoiding duplication and unnecessary expense (which are recognized in both the Montana 12

### Medical Legal Panel Act at 527-6-702, MCA,andthe Chiropractic

Legal Panel Act at 527-12-701, MCA)beaccomplished. Asimilar situation wasaddressed bythe Fourth Circuit Court of Appeals in Louisiana in Levyv.&'telly(La. App. 1973), 277So. 2d 194. In Levy, 

### the plaintiff filed suit in state court on September 27, 1967, within oneyear of his January 1967accident,
as required by the Louisiana statute of limitations. While the state court action waspending, hefiled asecond suit in federal district court onNovember 22, 1968, morethan oneyear from the date of his accident. Thestate court action wasdismissed without prejudice inJanuary 1972, andtheplaintiff refiled instate court
onMarch 17, 1972. Thestate trial court, however, dismissed the second action as barred by the applicable one-year statute of limitations. Onappeal, the plaintiff contended that the original state court action tolled the statute of limitations, andtherefore, that the subsequent suit in federal court, filed while the first case waspending, wastimely. Theplaintiff also asserted that, because the statute of limitations remained tolled while the federal action
waspending, the second state court action wasnot barred bythe statute of limitations. Thedefendants, however, maintained that the first tolling period hadbeennullified bythedismissal of the first state court action, and therefore, that the statute of limitations hadrun prior tothe date onwhich the plaintiff filed

13

### the federal court suit. The defendants relied on a Louisiana

statute, La. Civ. CodeAnn. art. 3519, which provided:

If the plaintiff inthis case, after having madehis demand, abandons, voluntarily dismisses, or fails to prosecute it atthe trial, the [tolling of the statute of limitations] is considered asnever having happened. TheLouisiana Court ofAppeals, however, construed the statute to apply only to suits filed after a plaintiff abandoned, voluntarily dismissed, or failed to prosecute his case; in the situation where aplaintiff hadfiled asecond suit prior to that abandonment, the court held that the statute was continuously tolled. Levy,277So.2dat 195-96. In effect, Louisiana's statute, La. Civ. CodeAnn. art. 3519, parallels our prior interpretation of Montana's "saving statute," in Tietjen, 

### 171P. 928, where this Court held that whenanaction is voluntarily dismissed prior tothe commencementofasecondaction, the first action did not toll the statute of limitations. Therefore, weconclude that the language andreasoning of Levy

### and its progeny are persuasive. SeeTugAlamo,Inc.v.ElectronicService,Inc. 

### (La. App. 1973), 275So. 2d419; Pj@erv.Correa 

### (La.App. 1994), 640So. 2d 281, rev’donothergrounds 

### (La. 1994), 643So. 2d1228 Wenote also that Levy’s 

### holding wasrecently affirmed in the medical malpractice context byPfiffner,

### 640So. 2d281, in which the Fourth Circuit Court of Appeals in Louisiana held that:

Asecond suit which wasfiled after the original suit wasdismissed or abandoned is considered asnever

14having been filed and prescription1 is applicable. To

the contrary, a second suit filed before the original suit wasabandoned or dismissed interrunts prescription.

. . . . If the second suit is filed prior to abandonment of the first suit, the interruption nrovided bvthe first suit continues until the second suit is filed and interruotion continues after the suit is dismissed because the second suit is pendinq. Pfiffne~, 620So. 2dat 285 (citations omitted; emphasis added). Contrary to the concerns expressed in the dissenting and concurring opinions, weare not adopting Louisiana law. Weare merely citing the Levyand Pj?&er decisions as examples of what has been done in one other jurisdiction under similar circumstances. Furthermore, whether the source of Louisiana law is the Napoleonic Code or the Code of Hammurabi is really irrelevant. The fact is that Louisiana has 183 years of case law which interprets its statutes and which is as valid for purposes of persuasion as the
case law of any other jurisdiction within the United States. Furthermore, wehave not hesitated in the past to cite authority
from Louisiana where we felt that the decisions of that state's courts were persuasive. The Montana Supreme Court has relied on Louisiana case law nofewer than sixty-six times since 1945. The Court has, in fact, relied heavily onLouisiana case law in several instances. See,e.g.,PattonV.MadisonCounty (1994), 265 Mont. 362, 368, 877 P.2d 993, 996 (holding that aLouisiana Supreme Court case "is instructive as to the rationale for not extending standing rights

IIn Louisiana, the term "prescription" I'is very nearly equivalent to what is elsewhere expressed by 'limitation of actions,' or rather, the 'bar of the statute of limitations."' Black’sLawDictionary 1183 (6th ed. 1990)

. 15

### to those persons not a part of the subdivision," and quoting

extensively from that case); IowaMutualIns.Co.v.Davis (1988), 231 

### Mont. 166, 171-72, 752 

### P.2d 166, 170 (holding that aLouisiana Second Circuit Court of Appeals decision was"persuasive" onthe issue of whether mandatory liability insurance protection prohibits the exclusion of nameddrivers from coverage under amotor vehicle liability policy) ; In mEstate 

### ofMcLaughlin (1969), 154 

### Mont. 318, 321-22; 462 

### P.2d 882, 884 -85; 

### and Interstate 

### Mfg.Co.Y.Interstate Products Co. (X965), 

### 146Mont. 449, 454, 408P.2d 478, 481. Weconclude that basedonthe facts in this case, all of the objectives ofthe statute of repose havebeenaccomplished. Webb's original application wasfiled within five years from the date which respondents contend washer "date of injury," andtherefore, within the time period the Legislature hasdeemedreasonable. upon receipt of that application, the panel director notified respondents of Webb's claim. See§27-6-305, MCA. Webb's application or complaint hasbeen, at all times since that date, pending before atribunal with authority to entertain her claim, andin a manner that tolled the statute of limitation andrepose. Webb's

summons 

### andcomplaint wereserved within three years from the date

Oil 

### which the original timely complaint was filed, and the respondents demonstrate noprejudice fromthe chronology of events. Torequire morewould elevate form over substance. Wetherefore hold that Webbcommencedthis action within five years from the date of her injury, asrequired by§27-2-205, MCA.

16Wefurther hold that the statute of limitations was thereafter

continuously tolled, and therefore, that the District Court erred when it granted respondents' motions for summary judgment. Because we hold that Webb's complaint is not barred by the five-year statute of repose found at §27-2-205, MCA,wereverse the District Court's order and remand for further proceedings.

Weconcur:

Chief Justice

Justices

17

### Justice Karla M.Gray, specially concurring.

I concur in the result the Court reaches andin the analysis andapplication of Montana law onwhich it relies to reach that result. I write separately to note mydisagreement with that section of the Court's opinion which discusses Louisiana statutory andcase law. Specifically, I donot agree that m addresses asimilar situation since, unlike the case before us, it involved asecond suit filed before the first suit wasabandoned. NordoIfind the language or reasoning ofm andits progeny "persuasive." Iwill not repeat here the cogent discussion regarding the Court's useof Louisiana law in general, andm in particular, set forth in Justice Erdmann's dissent. Suffice it to say that I agree with that discussion. Notwithstanding mydisagreement with the inclusion ofthew section in the Court's opinion, however, I join in the result the Court reaches because it is myview that the Court properly analyzes andapplies Montana law to reach that result. For that reason, it also is myview that the Court's Lew discussion is dicta because it is unnecessary to the resolution of the issue before us, which is fully and properly reached onthe basis of Montana law.Justice Charles E. Erdmann dissenting.

In reversing the District Court, the majority holds that Webb's December 13, 1993, complaint for aninjury which occurred on October 7, 1986, was not time-barred.' The majority allows Webb to "bridge" anuntolled period of time and therefore nullifies the five-year statute of repose. This "bridge" is not supported by either Montana precedent or relevant Montana statutes. Despite this lack of legal support, the "bridge" will undoubtedly see a good deal of traffic in years to come as otherwise time-barred plaintiffs find it auseful detour. The running of the applicable limitation period in a malpractice claim is tolled upon receipt of an application for review by the director of the medical legal panel. Section 27-6-702, MCA. The statute does not begin running again until thirty days after the panel's final decision. In the present case, the statute was tolled on September 9, 1991, when Webbfiled her application for review with the medical legal panel--four years, eleven months, andtwo days after her date of injury. The medical legal panel reached its final decision on March 18, 1992. Thus, had nothing tolled the statute, the statute would have began running again on April 17, 1992, and the five-year statute of repose would have therefore expired in mid-June 1992.

'The majority reaches no legal conclusion as to the "date of injury" but assumes, for purposes of the opinion, that the date of injury was 1986. 19Webb claims, and the majority so holds, that when she filed

her initial district court complaint on April 16, 1992, the limitation period was again tolled pending resolution of the complaint. Furthermore, the majority holds that Webb's voluntary dismissal of the complaint onAugust 3, 1993, did not nullify any tolling effect that the complaint had. The majority states that the complaint was still pending onAugust 2, 1993, whenWebbfiled her application for review with the chiropractic legal panel and the statute again remained tolled during the pendency of that action. The majority therefore determined that Webb's second district court complaint, filed onDecember 13, 1993, within thirty days after the chiropractic legal panel's final decision, was not time-barred. Webb was originally injured in May 1986. BY constructing this bridge, the majority has allowed the filing of a complaint onDecember 13, 1993, almost oneandone-half years after the five-year statute of repose expired. Under Montana's "saving statute" and prior precedent, the first complaint failed to toll the statute of limitations. The defendants were never served with the April 16, 1992, complaint and they were therefore not placed on notice that Webb had commenced legal action against them. Webbshould not nowbeallowed to claim that the statute was tolled by simply filing the complaint. The majority's reliance on Blasdel v. Montana Power Co. (1982), 196 Mont. 417, 640 P.2d 889, for the proposition that the statute is tolled when the first complaint is filed, is misleading. In Blasdel the complaint was in fact served onthe defendants and the 20issue waswhether the complaint tolled the statute of limitations

for subsequent amendments which were determined to relate back to the original complaint. Even if the first complaint initially had the effect of tolling the statute, Montana law is clear that once it was dismissed its tolling effect was nullified. In Tietjen v. Heberlein (1918), 54 Mont. 486, 171 P. 928, we interpreted Montana's "saving statute" (presently codified at 527-2-407, MCA) and held that where anaction is voluntarily discontinued prior to the commencement of asecond action, the first action does not toll the statute of limitations. Here, Webbvoluntarily dismissed her April 16, 1992, complaint prior to commencing her December 13, 1993, action. Thus, the statute was not tolled by the 1992 complaint and her 1993 complaint wastime-barred. The majority mixes apples and oranges when it attempts to distinguish Tietien by stating that it was decided prior to the enactment of the Medical and Chiropractic Legal Panel Acts and their respective tolling provisions. Our holding in Tietjen that the tolling effect of aproperly filed first cause of action is nullified when it is later voluntarily dismissed remains vital today. While in Tietien werelied on the version of §27-2-407, MCA, which predated the Medical andChiropractic Legal Panel Acts, the relevant language that aplaintiff may commence anew action within one year after the original action is terminated "in anv other manner than bv avoluntary discontinuance" remains in the current version of the "saving statute." (Emphasis added.) 21Section 27-l-101, MCA, states that U[jludicial remedies are

such as are administered by the courts of justice or by judicial officers

. . . .I' Section 27-l-102, MCA,divides judicial remedies into twoclasses--"actions" and former as "an ordinary proceeding in acourt of justice

. .'I and further stating that "[elvery other remedy is a special proceeding." There is no indication that the legislature intended the term "action" in 527-2-407, MCA, to apply to proceedings brought under the Medical and Chiropractic Legal Panel Acts. The majority, however, has done just that. Finally, I disagree with the majority's reliance on and adoption of Louisiana law. While the courts of Louisiana are extremely competent in construing and interpreting Louisiana statutes, it must be remembered that Louisiana is the only state which does not follow the English common law, but rather relies on the Napoleonic Code for its legal traditions and interpretations. Not only is the terminology different, Louisiana's entire legal tradition is different from Montana's and weshould be extremely reluctant to adopt Louisiana case law ascontrolling authority in Montana. This is particularly true where wehave both Montana case law and statutes which directly address the issue under consideration. The majority notes that this Court has relied on Louisiana
case law no fewer than sixty-six times since 1945 as support for its reliance onLouisiana authority in this case. Since 1945 this Court has issued over 10,500 opinions and its reliance onLouisiana 22law in only 6 percent of those cases certainly reflects this

Court's reluctance to rely on Louisiana authority. The Louisiana statute (La. Civ. CodeAnn. art. 3519) cited by the majority provides:

If the plaintiff in this case, after having madehis demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the [tolling of the statute of limitations] is considered as never happened. Rather than supporting the majority's position, the plain language of the statute supports our interpretation of the Montana saving statute made in Tietien. Nevertheless, the Louisiana court, in Levy v. Stelly (La. App. 1973), 277 So.2d 194, construed the statute to hold that if a second suit is filed prior to the abandonment of the first suit, the tolling effect of the first suit continues. The facts of the present case are distinguishable from

m in that Webbdid not file asecond suit prior to voluntarily dismissing her initial complaint. Filing applications with the medical and chiropractic legal panels is not analogous to filing district court complaints and the majority's reliance on the rationale in Levy is not persuasive. Five years from October 7, 1986, is October 7, 1991. Giving Webbcredit for the period of time the statute wastolled while her claim was under review by the medical legal panel, the five-year statute of repose expired in June 1992. In building this "continuous tolling bridge" the majority has subverted the legislature's intent in adopting the five-year statute of repose

23for medical malpractice cases andprovided aroad to the courthouse

which neither Montana statutes nor prior cases would allow. Iwould affirm the District Court's determination that Webb's December 13, 1993, complaint was time-barred by 527-2-205, MCA.

m2x Justice

Chief Justice J. A. Turnage joins in the foregoing dissenting opinion.

Chief Justice

24