ATO. 95-234 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

DIANA L. WEBB, 

Plaintiff and Appellant, 

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. 

COUNSEL OF RECORD: 

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!? 2 0 1996 Decided: February 20, 1996 

Filed: 

2.j 

I 

CLC+( fir i.. ;;;,;x i;i;.:cI'r STATE OF iric;;.'rUi%,& 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On September 9, 1991, Diana Webb filed a claim with the 

Medical Legal Panel against R.K.S., an orthopedist, and C.H.A., a 

radiologist. After the Panel rendered its decision, Webb filed a 

timely complaint against the two doctors in the District Court for 

the Thirteenth Judicial District in Yellowstone County. On 

August 2, 1993, Webb filed an application with the Chiropractic 

Legal Panel against T.D. and named R.K.S. and C.H.A. as necessary 

and proper parties to the action. On August 3, 1993, Webb 

voluntarily dismissed the pending district court action against 

R.K.S. and C.H.A. without prejudice. The Chiropractic Legal Panel 

rendered its decision on November 16, 1993. On December 13, 1993, 

Webb filed a second complaint in the Thirteenth Judicial District 

Court against all defendants. On February 3, 1995, the District 

Court granted R.K.S.'s and C.H.A.'s motions for summary judgment on 

the ground that Webb's complaint was barred by the applicable 

statute of repose. Webb appeals the District Court's order which 

granted summary judgment. We reverse the District Court and remand 

for further proceedings. 

There is one issue on appeal: 

Is Webb's complaint barred by the five-year statue of repose 

set forth at § 27-z-205, MCA? 

FACTUAL BACKGROUND 

Diana Webb suffered a back injury during the course of her 

employment in May 1986. After her accident, Webb consulted T.D., 

a chiropractor, concerning her symptoms. In October 1986, her 

2 
employer's workers' compensation insurer referred her to R.K.s., an 

orthopedist, for further evaluation. On October 7, 1986, R.K.S. 

performed a clinical evaluation and ordered a CT-scan, which was 

read by C.H.A., a radiologist. The next day, R.K.S. wrote Webb a 

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 Webb was working for a construction company in 

California, she suffered a severe aggravation of her earlier 

injury. Afterward, on August 22, 1989, Webb again consulted T.D. 

about her back condition. T.D. treated Webb until the end of 1989 

without referring her to a physician 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 as a result 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 a disc 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 on March 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 in Yellowstone County. The summonses were 

issued on that date, but were never served. 

On June 29, 1992, Webb's attorney died in an airplane crash. 

On June 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, on August 2, 1993, 

Webb filed an application with the Chiropractic Legal Panel for 

review of her treatment by T.D. and named R.K.S. and C.H.A. as 

necessary and proper parties to the action. On August 3, 1993, 

Webb voluntarily dismissed the pending district court action 

against R.K.S. and C.H.A. without prejudice. The Chiropractic 

Legal Panel rendered its decision on November 16, 1993. Webb filed 

her second complaint in District Court against all defendants on 

December 13, 1993, within thirty days of the Chiropractic Legal 

Panel decision. 

On February 3, 1995, the District Court granted the motions 

for summary judgment filed by R.K.S. and C.H.A. The court held 

that Webb's injury occurred in October 1986 when the defendants 

failed to diagnose a damaged intervertebral disc; that six years 

had passed from the date of injury before Webb filed her complaint 

in district court; and therefore, that Webb's complaint is barred 

by the five-year statute of repose found at 5 27-2-205, MCA. 

4 
DISCUSSION 

Is Webb's complaint barred by the five-year statute of repose 

set forth at 5 27-2-205, MCA? 

This Court reviews a district court's order granting summary 

judgment based on the same criteria applied originally by the 

district court. Brunerv. Yellowstone County (Mont. 1995), 900 P.2d 901, 

903, 52 St. Rep. 699, 700. Rule 56(c), M.R.Civ.P., provides that 

summary judgment is proper only when "there is no genuine issue as 

to any material fact and . . the moving party is entitled to 

judgment as a matter of law." 

In this case, the District Court granted summary judgment in 

favor of R.K.S. and C.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 or death against a physician 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 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 

after 5 vears 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 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 added). 
Webb contends 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 on which 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 on October 7, 1986, when the defendants allegedly failed 

to diagnose her true condition. 

Webb further 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 on our 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 

6 
of 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 Webb filed 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 on as the "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 5 27-12-701, MCA, 

which provides: 

(1) Upon receipt of an application by the director, 

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. 

(2) The running of the applicable limitation period 

in a malpractice 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. 

7 
The Chiropractic Legal Panel rendered its decision on November 16, 

1993. Webb filed 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 was tolled during the pendency of her 

application before the Medical Legal Panel, and for thirty days 

thereafter. The parties disagree, however, on the effect of Webb's 

first complaint in the District Court, which was filed on April 16, 

1992, and which was voluntarily dismissed on August 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. Webb further 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 on a defendant does not toll the 

statute of limitations. They further contend that Rule 41(e), 

M.R.Civ.P., prohibits the refiling of a claim against a defendant 

when the plaintiff has failed to serve a summons and the complaint 

before its dismissal. 

Rule 41(e), M.R.Civ.P., 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 

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 

8 
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 

appeared within 3 years, or upon whom summons which has 

been issued within 1 year has been served and filed with 

the clerk within 3 years as herein required. 

Respondents contend that pursuant to Rule 41(e) Webb was prohibited 

from refiling her claim because she failed to serve the summons on 

her first complaint before she voluntarily dismissed it. They cite 

First Call, Inc. V. Capital Answering Service, Inc. (Mont . 1995 ) , 8 98 P .2d 9 6 , 52 

St. Rep. 496, for the proposition that the dismissal of Webb's 

first complaint bars her second complaint based on principles of res 

judicata . We disagree, 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. We held 

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, and Webb did 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 

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

therefore, inapplicable to this case. 

We hold 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., Blasdel v. MontanaPower Co. (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 on August 3, 1993--one day after she filed 

her chiropractic legal panel application--had the effect of 

nullifying the prior tolling of the statute. We previously held in 

Tietjenv. Heberlein (1918), 54 Mont. 486, 488, 171 P. 928, 928, that 

where an action is voluntarily dismissed prior to the commencement 

of a second 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 
commenced within the applicable statute of limitations, and is 

thereafter terminated "in any other manner than bv voluntary 

discontinuance," the plaintiff may commence a new action for the 

same cause after the expiration of the time so limited and within 

one year after such a termination. Section 27-Z-407, MCA (emphasis 

added). 

Tietjen is not dispositive of the tolling issue raised in this 

case, however. In the first place, Tietjen was neither a medical nor 

chiropractic malpractice case, but rather, was an action brought to 

recover the amount of a succession tax. Furthermore, Tieijen was 

decided in 1918, years prior to 1977 when the Montana Medical Legal 

Panel Act was enacted, and years prior to 1989, when the Montana 

Chiropractic Legal Panel Act was enacted, each Act with its 

respective tolling provisions. Sections 27-6-702 and 27-12-701, 

MCA. The same is true of the predecessor to § 27-2-407, MCA, which 

was originally enacted in the 1870s. 

Accordingly, neither the statute nor our decision could have 

accounted for the tolling provisions of the Panel Acts. 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, we conclude that neither § 27-2-407, MCA, nor our decision 

in Tietjen, is controlling based on the facts here. Rather, 

§§ 27-f-702 and 27-12-701, MCA, specifically provide for tolling 

11 
while a claim is pending before the respective panels, and it is 

those statutes which must be given controlling effect in a medical 

or chiropractic malpractice case where, as in 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 a malpractice panel in 

proceedings which name the original defendants as necessary 

parties, §§ 27-2-702 and 27-12-701, MCA, provide, as to those 

originally named defendants, a continuous tolling "bridge" between 

the first complaint and the 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. When the second action is filed 

prior to dismissal of the original suit, we hold 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 by allowing 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 5 27-6-702, MCA, and the Chiropractic 

Legal Panel Act at 5 27-12-701, MCA) be accomplished. 

A similar situation was addressed by the Fourth Circuit Court 

of Appeals in Louisiana in Levyv. &'telly (La. App. 1973), 277 So. 2d 

194. In Levy, the plaintiff filed suit in state court on 

September 27, 1967, within one year of his January 1967 accident, 

as required by the Louisiana statute of limitations. While the 

state court action was pending, he filed a second suit in federal 

district court on November 22, 1968, more than one year from the 

date of his accident. The state court action was dismissed without 

prejudice in January 1972, and the plaintiff refiled in state court 

on March 17, 1972. The state trial court, however, dismissed the 

second action as barred by the applicable one-year statute of 

limitations. 

On appeal, the plaintiff contended that the original state 

court action tolled the statute of limitations, and therefore, that 

the subsequent suit in federal court, filed while the first case 

was pending, was timely. The plaintiff also asserted that, because 

the statute of limitations remained tolled while the federal action 

was pending, the second state court action was not barred by the 

statute of limitations. The defendants, however, maintained that 

the first tolling period had been nullified by the dismissal of the 

first state court action, and therefore, that the statute of 

limitations had run prior to the date on which the plaintiff filed 

13 
the federal court suit. The defendants relied on a Louisiana 

statute, La. Civ. Code Ann. art. 3519, which 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 Court of Appeals, 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 a plaintiff had filed a second suit prior to that 

abandonment, the court held that the statute was continuously 

tolled. Levy, 277 So. 2d at 195-96. 

In effect, Louisiana's statute, La. Civ. Code Ann. art. 3519, 

parallels our prior interpretation of Montana's "saving statute," 

in Tietjen , 171 P. 928, where this Court held that when an action is 

voluntarily dismissed prior to the commencement of a second action, 

the first action did not toll the statute of limitations. 

Therefore, we conclude that the language and reasoning of Levy and 

its progeny are persuasive. See Tug Alamo, Inc. v. Electronic Service, Inc. (La. 

App. 1973), 275 So. 2d 419; Pj@erv.Correa (La. App. 1994), 640 So. 2d 

281, rev’donothergrounds (La. 1994), 643 So. 2d 1228 

We note also that Levy’s holding was recently affirmed in the 

medical malpractice context by Pfiffner, 640 So. 2d 281, in which the 

Fourth Circuit Court of Appeals in Louisiana held that: 

A second suit which was filed after the original 

suit was dismissed or abandoned is considered as never 

14 
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 

suit continues until the second suit is filed and 

interruotion continues after the suit is dismissed 

because the second suit is pendinq. 

Pfiffne~, 620 So. 2d at 285 (citations omitted; emphasis added). 

Contrary to the concerns expressed in the dissenting and 

concurring opinions, we are not adopting Louisiana law. We are 

merely citing the Levy and 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, we have 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 no fewer than sixty-six times since 1945. The 

Court has, in fact, relied heavily on Louisiana case law in several 

instances. See, e.g., Patton V. Madison County (1994), 265 Mont. 362, 368, 

877 P.2d 993, 996 (holding that a Louisiana 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’s Law Dictionary 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 a Louisiana Second 

Circuit Court of Appeals decision was "persuasive" on the issue of 

whether mandatory liability insurance protection prohibits the 

exclusion of named drivers from coverage under a motor vehicle 

liability policy) ; In m Estate of McLaughlin (1969), 154 Mont. 318, 

321-22; 462 P.2d 882, 884 - 85 ; and Interstate Mfg. Co. Y. Interstate Products Co. 

(X965), 146 Mont. 449, 454, 408 P.2d 478, 481. 

We conclude that based on the facts in this case, all of the 

objectives of the statute of repose have been accomplished. Webb's 

original application was filed within five years from the date 

which respondents contend was her "date of injury," and therefore, 

within the time period the Legislature has deemed reasonable. upon 

receipt of that application, the panel director notified 

respondents of Webb's claim. See § 27-6-305, MCA. Webb's application or complaint has been, at all times since that date, pending 

before a tribunal with authority to entertain her claim, and in a 

manner that tolled the statute of limitation and repose. Webb's 

summons and complaint were served within three years from the date 

Oil which the original timely complaint was filed, and the 

respondents demonstrate no prejudice from the chronology of events. 

To require more would elevate form over substance. 

We therefore hold that Webb commenced this action within five 

years from the date of her injury, as required by § 27-2-205, MCA. 

16 
We further 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, we reverse the District 

Court's order and remand for further proceedings. 

We concur: 

Chief Justice 

Justices 

17 
Justice Karla M. Gray, specially concurring. 

I concur in the result the Court reaches and in the analysis 

and application of Montana law on which it relies to reach that 

result. I write separately to note my disagreement with that 

section of the Court's opinion which discusses Louisiana statutory 

and case law. 

Specifically, I do not agree that m addresses a similar 

situation since, unlike the case before us, it involved a second 

suit filed before the first suit was abandoned. Nor do I find the 

language or reasoning of m and its progeny "persuasive." I will 

not repeat here the cogent discussion regarding the Court's use of 

Louisiana law in general, and m in particular, set forth in 

Justice Erdmann's dissent. Suffice it to say that I agree with 

that discussion. 

Notwithstanding my disagreement with the inclusion of the w 

section in the Court's opinion, however, I join in the result the 

Court reaches because it is my view that the Court properly 

analyzes and applies Montana law to reach that result. For that 

reason, it also is my view 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 on the 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 an injury which occurred on 

October 7, 1986, was not time-barred.' The majority allows Webb 

to "bridge" an untolled 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 a useful 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 Webb filed her 

application for review with the medical legal panel--four years, 

eleven months, and two 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. 

19 
Webb 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 on August 3, 1993, did not nullify any 

tolling effect that the complaint had. The majority states that 

the complaint was still pending on August 2, 1993, when Webb filed 

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 on December 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 on December 13, 1993, almost one and one-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. Webb should not now be allowed 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 on the defendants and the 

20 
issue was whether 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 5 27-2-407, MCA) 

and held that where an action is voluntarily discontinued prior to 

the commencement of a second action, the first action does not toll 

the statute of limitations. Here, Webb voluntarily 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 was time-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 a properly filed first cause of action is 

nullified when it is later voluntarily dismissed remains vital 

today. While in Tietien we relied on the version of § 27-2-407, 

MCA, which predated the Medical and Chiropractic Legal Panel Acts, 

the relevant language that a plaintiff may commence a new action 

within one year after the original action is terminated "in anv 

other manner than bv a voluntary discontinuance" remains in the 

current version of the "saving statute." (Emphasis added.) 

21 
Section 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 two classes--"actions" and 

former as "an ordinary proceeding in a court of justice . .'I and 

further stating that " [el very other remedy is a special 

proceeding." There is no indication that the legislature intended 

the term "action" in 5 27-2-407, 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 we should be extremely 

reluctant to adopt Louisiana case law as controlling authority in 

Montana. This is particularly true where we have 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 on Louisiana authority in this case. Since 1945 this 

Court has issued over 10,500 opinions and its reliance on Louisiana 

22 
law in only 6 percent of those cases certainly reflects this 

Court's reluctance to rely on Louisiana authority. 

The Louisiana statute (La. Civ. Code Ann. art. 3519) cited by 

the majority provides: 

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 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 Webb did not file a second 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 

Webb credit for the period of time the statute was tolled 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 

23 
for medical malpractice cases and provided a road to the courthouse 

which neither Montana statutes nor prior cases would allow. 

I would affirm the District Court's determination that Webb's 

December 13, 1993, complaint was time-barred by 5 27-2-205, MCA. 

m2x 

Justice 

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

opinion. 

Chief Justice 

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