PUBLISHED OPINION
Case No.: 95-3559
Complete
Title
of
Case:ANNETTE D. CARY
and DANIEL D. CARY,
VICTORIA S. ALVAREZ and
ALEXANDER Z. GONZALEZ,
Plaintiffs-Appellants,
UNIFORM SERVICES BENEFIT PLANS, INC.,
ADMINASTAR DEFENSE SERVICES, INC. and
MONUMENTAL GENERAL INSURANCE CORPORATION,
Subrogated-Plaintiffs,
v.
THE CITY OF MADISON and WISCONSIN
MUNICIPAL MUTUAL INSURANCE COMPANY,
Defendants-Respondents.
Submitted
on Briefs: May 24, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 27, 1996
Opinion
Filed: June
27, 1996
Source
of APPEAL Appeal from a judgment and an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Stuart
A. Schwartz
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., and Vergeront, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiffs-appellants the cause
was submitted on the briefs of James N. Youngerman of Montie &
Youngerman of Madison.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of Bradley D. Armstrong and Guy
DuBeau of Axley Brynelson of Madison.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED June
27, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3559
STATE OF WISCONSIN IN
COURT OF APPEALS
ANNETTE
D. CARY and DANIEL D. CARY,
VICTORIA
S. ALVAREZ and
ALEXANDER
Z. GONZALEZ,
Plaintiffs-Appellants,
UNIFORM SERVICES BENEFIT PLANS, INC.,
ADMINASTAR DEFENSE SERVICES, INC., and
MONUMENTAL GENERAL INSURANCE CORPORATION,
Subrogated-Plaintiffs,
v.
THE
CITY OF MADISON and WISCONSIN
MUNICIPAL
MUTUAL INSURANCE COMPANY,
Defendants-Respondents.
APPEAL
from a judgment and an order of the circuit court for Dane County: STUART A. SCHWARTZ, Judge. Reversed.
Before
Eich, C.J., Gartzke, P.J., and Vergeront, J.
EICH,
C.J. Annette Cary appeals from a
judgment dismissing her personal injury action against the City of Madison as
untimely filed.[1] We reverse the judgment.
A
person claiming to have suffered injury as a result of the actions of a
municipality or its agents may not commence an action to recover damages therefor
unless he or she first files a claim with the municipality and the claim is
denied. Sections 893.80(1)(a) and (b), Stats. This appeal concerns the special six-month
statutory limitation period set by § 893.80(1)(b) for commencement of such
actions after denial of the claim. The
statute requires the notice of disallowance to be "served on the claimant
by registered or certified mail," and states that "[n]o action on
[the] claim ... may be brought after 6 months from the date of service of the
notice ...."
Cary,
who was injured when she slipped and fell on a sidewalk in the City of Madison,
filed a claim for damages with the City.
The City denied the claim and sent a notice of disallowance by certified
mail to Cary's attorney, Gregory Dutch, on September 21, 1994. Dutch received it on either September 22 or
23, 1994. The action commenced on March
22, 1995--six months and one day after September 21, 1994, the date the disallowance
notice was mailed.
The
City moved to dismiss Cary's action as time-barred by § 893.80(1)(b), Stats.
The trial court granted the motion, rejecting Cary's arguments that (1)
service of the notice on a claimant's attorney may not be considered service
"on the claimant" within the meaning of § 893.80(1)(b); and (2)
§ 801.15(5)(a), which extends the response time by three days where papers
are served by mail, is applicable to the City's notice. Cary's appeal challenges those rulings.
The
rulings concern the interpretation and application of statutes; as such, they
raise questions of law which we decide independently, owing no deference to the
trial court's conclusions. State
ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis.2d 101,
106, 499 N.W.2d 657, 659 (1993). Based
on that review, we conclude that the trial court erred when it decided that
service on Cary's attorney complied with § 893.80(1)(b), Stats.
Because the City's disallowance notice was never properly served under
the statute, its six-month limitation is inapplicable and the three-year
provision of the general personal-injury statute of limitations, § 893.54,
Stats., applies. We reverse the judgment on this ground, and
it is thus unnecessary to consider Cary's other argument.
As
we have noted above, § 893.80(1)(b), Stats.,
requires that the notice of disallowance "shall be served on the
claimant" by registered or certified mail. We recognized in Interest of Peter B., 184 Wis.2d
57, 516 N.W.2d 746 (Ct. App. 1994), as we have in many other cases, that in
interpreting a statute, we do not look behind its plain and unambiguous
language.
The sole purpose
of determining the meaning of a statute is to ascertain the intent of the
legislature. In determining legislative
intent, we look to the plain language of the statute. If the statute is clear on its face, our inquiry as to the
legislature's intent ends and we must simply apply the statute to the facts of
the case.
Id. at 70-71, 516 N.W.2d at 752 (citation omitted). We see nothing unclear or ambiguous in the
mandate of § 893.80(1)(b) that the notice be served "on the
claimant." See Linstrom
v. Christianson, 161 Wis.2d 635, 639, 469 N.W.2d 189, 190 (Ct. App.
1991) (stating the notice of claim and notice of disallowance provisions of
§ 893.80(1) are unambiguous).
The
City makes a "substantial compliance argument." It maintains that service on Cary's attorney
must be considered the equivalent of service on Cary herself, relying almost
exclusively on the supreme court's statement in DNR v. City of Waukesha,
184 Wis.2d 178, 198, 515 N.W.2d 888, 896 (1994), that an "attorney's
address is considered the equivalent of the claimant's address for the purpose
of the notice of claim statute."
The City asserts, "This principle alone should dispose of [Cary]'s
contention to the contrary." We
disagree. We think Waukesha
is distinguishable. The quoted phrase
had nothing to do with the statutory language at issue here.
The
Waukesha court was not considering the requirement of
§ 893.80(1)(b), Stats., that
the notice of disallowance be "served on the claimant";
its discussion was limited to the statutory sufficiency of the claimant's notice
of claim. Waukesha,
184 Wis.2d at 198, 515 N.W.2d at 896.
The Department of Natural Resources, seeking to enforce rules relating
to drinking-water safety, sued the City of Waukesha, seeking both fines and
forfeitures, as well as injunctive relief, for several claimed violations of
state regulations. Id. at
186-87, 515 N.W.2d at 891. The City
moved to dismiss the action for DNR's failure to serve and file a notice of
claim under § 893.80(1)(a), which, as we noted above, states that no action may
be maintained against a governmental subdivision unless, within 120 days after
the event giving rise to the claim, "written notice of the circumstances
of the claim ... is served on the ... governmental subdivision ...." Among other things, § 893.80(1)(b) requires
the notice of claim to contain "the address of the claimant and an
itemized statement of the relief [being] sought ...."
DNR
maintained that a letter sent by the attorney general to the Waukesha city
attorney satisfied the requirements of the statute. Considering that contention, the supreme court, noting that the
letter contained the address of DNR's attorney, made the statement which forms
the basis of the City's argument in this case: "The attorney's address is
considered the equivalent of the claimant's address for the purpose of the
notice of claim statute." Waukesha,
184 Wis.2d at 198, 515 N.W.2d at 896.
The
fact that the supreme court considered the attorney's address to be the
equivalent of the "claimant's address" required by the notice of
claim provisions of the statute has little to do, we think, with whether a
"service on the claimant" requirement for disallowance notices
is met by service on an attorney. The
statutes are very different, and we do not consider service on an attorney to
be the equivalent of the plainly worded requirement that the disallowance
notice be served on the claimant.
Nor
do we believe the "substantial compliance" holding in Waukesha
is applicable here. As the Waukesha
court noted, the purpose of the statutory language requiring persons seeking
recovery from a city to present their claims to the city for consideration in
advance of bringing suit "`is to "afford[] the municipality an opportunity
to compromise and settle [the] claim without litigation."'" Waukesha, 184 Wis.2d at 195,
515 N.W.2d at 894 (quoted sources omitted). Thus, said the court, the information required to be submitted
in connection with the claim--including the itemized statement of damage and
the name and address of the claimant--is mandated so the municipality will have
"the information necessary to decide whether to settle the
claim"--enough information "so that it can budget accordingly for
either a settlement or litigation."
Id. at 198, 515 N.W.2d at 896 (citations omitted). The court then stated that because notices
of claims "should be construed so as to preserve bona fide claims ...
`only substantial, and not strict, compliance with notice statutes is required.'"
Id. (citations omitted).
As
we said in Linstrom, 161 Wis.2d at 639, 469 N.W.2d at 190, the
language of § 893.80(1)(b), Stats.,
is unambiguous in that it "clearly requires that a notice of disallowance
be served to trigger the six-month statute of limitations," and
"[t]his notice of disallowance `shall be served on the claimant
....'" This is not a case, like Waukesha,
where the court applied a substantial-compliance rule to a failure in order to
"preserve a bona fide claim."
Indeed, the City asks us to go beyond the statute's plain language in
order to negate an apparently bona fide claim. To do so would be contrary not only to the unambiguous statutory
language but to the very principle upon which the Waukesha court
based its holding in that case.
We
conclude, therefore, that Waukesha provides inadequate authority
for the conclusions reached by the trial court and argued by the City on this
appeal.[2] And we decline the City's invitation to
relax the service requirement that the legislature plainly and explicitly
provided for notices of claim disallowances under § 893.80(1)(b), Stats.
By
the Court.—Judgment and order
reversed.
[2] We note in this regard that the two cases cited by
the Waukesha court as authority for its statement that the
attorney's address is the equivalent of the claimant's address "for the
purpose of the notice of claim statute" dealt, like Waukesha,
with the adequacy of the claim notices under the applicable statute, not
with notices of disallowance. See
Gutter v. Seamandel, 103 Wis.2d 1, 8-9, 308 N.W.2d 403, 407
(1981); Novak v. City of Delavan, 31 Wis.2d 200, 210-11, 143
N.W.2d 6, 12 (1966).