TANYA CALDWELL, Administrator of the ESTATE OF SCOTT MCCARTHY, and TANYA CALDWELL and CALLEN MCCARTHY, Parents of Scott McCarthy, Plaintiffs-Appellees,
HOLIDAY LAKE OWNERS' ASSOCIATION, INC. Defendant-Appellant, and RICKY RIZZIO, Defendant. HOLIDAY LAKE OWNERS' ASSOCIATION, INC., Counter-Claim Plaintiff,
TANYA CALDWELL, Third-Party Defendant. HOLIDAY LAKE OWNERS' ASSOCIATION, INC., Counter-Claim Plaintiff,
JOHN MOSINSKI, Third-Party Defendant.
Appeal from the Iowa District Court for Poweshiek County, Dan F. Morrison, Judge.
In an interlocutory appeal, the defendant in a tort action challenges the dismissal of a third-party defendant.
Brian R. Kohlwes of Law Office of Scott J. Idleman, Des Moines, for appellant.
Peter J. Leehey, Cedar Rapids, for Tanya Caldwell.
Joseph McLaughlin of Widenfeld & McLaughlin, L.L.P., Des Moines, for Gary Caldwell.
Joseph A. Quinn and Mitchell R. Kunert of Nyemaster Goode, P.C., Des Moines, for Ricky Rizzio.
Joel T.S. Greer, Marshalltown, for John Mosinski.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
This appeal involves the viability of a third-party action brought by Holiday Lake Owners' Association, Inc., which owned the road in Poweshiek County where a teenager was killed in a golf cart accident. Holiday Lake—in defending against a negligence suit brought by the estate of Scott McCarthy—filed a cross petition against Ricky Rizzio. Rizzio originally stood as a co-defendant with Holiday Lake, but was dismissed from the action when the plaintiffs failed to timely serve him. On Rizzio's motion, the district court dismissed him from the suit again, noting the statute of limitations on the original negligence action had expired by the time Holiday Lake brought him in as a third party. Holiday Lake seeks reversal, contending its cross petition was allowed under Iowa Rule of Civil Procedure 1.246 and the tolling provision at Iowa Code section 668.8 (2011). Holiday Lake also emphasizes its right to file a contribution claim as part of the original action under Iowa Code section 668.5.
Because the statute of limitations did not bar Holiday Lake from bringing Rizzio in as a third-party defendant under rule 1.246, we reverse the dismissal and remand for further proceedings.
I. Background Facts and Proceedings
On August 15, 2009, fourteen-year-old Scott McCarthy was operating a golf cart on a private road owned by Holiday Lake near Brooklyn, Iowa. At a curve in the road, McCarthy swerved to avoid colliding with an oncoming pickup truck driven by Rizzio. The golf cart slid and rolled, ejecting all four occupants. McCarthy died as a result of the accident.
On June 7, 2011, McCarthy filed a petition against Rizzio and Holiday Lake seeking damages. McCarthy alleged Rizzio drove his truck "negligently, including but not limited to failing to keep a proper lookout, driving left of center, and driving too fast in light of the conditions of the roadway." McCarthy also alleged Holiday Lake was negligent for failing to maintain its roads, failing to ...