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COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 21, 1997 |
NOTICE |
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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. 96-0627-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
DONNA WELCH,
Plaintiff-Appellant,
v.
WILLIAM J. PLEIN and
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendants-Respondents,
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
ARLENE D. CONNORS, Judge. Reversed
and cause remanded with instructions.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER
CURIAM. Donna Welch appeals from a summary judgment in favor
of William Plein and State Farm Fire and Casualty Company (collectively
"State Farm"). The issue is
whether Welch's claim was brought before the statute of limitations
expired. We conclude that summary
judgment should not have been granted in favor of State Farm, and remand to the
trial court to determine when American Family Mutual Insurance Company accepted
payment from State Farm for property damage sustained by Welch.
Donna Welch sustained
personal injuries and property damage to her car when she was involved in
an automobile accident with William Plein on March 8, 1992. Plein's insurer, State Farm, decided that
Plein was responsible for the property damage caused by the accident and issued a check to Welch for
the $250 deductible on her insurance policy.
Welch cashed that check on March 25, 1992. Meanwhile, Welch's insurer, American Family, paid the remaining
amount for the property damage to her car.
American Family then entered into negotiations with State Farm seeking
reimbursement of its property damage payment.
State Farm agreed to pay for the damages and issued a check to American
Family on April 3, 1992, mailing the check that evening. The record is unclear as to who had
possession of the check and what happened to the check for the next four
months. On August 10, 1992,
American Family cashed the check.
On May 1, 1995, Welch
brought an action for personal injuries against Plein and State Farm. State Farm moved to dismiss on the grounds
that Welch had failed to timely commence the action. The trial court agreed and granted summary judgment in State
Farm's favor.
There is a three-year
statute of limitations for bringing personal injury lawsuits. Section 893.54, Stats. However, if a
payment is made pursuant to § 885.285(1), Stats., the statute of limitations is extended for
"either the period of time remaining under the original statute of
limitations or 3 years from the date of the last payment made under
§ 885.285(1), whichever is greater."
Section 893.12, Stats.[1] The statute of limitations in personal
injury lawsuits that also involve property damage claims is thus extended to three
years after any payment made in advance or settlement of either the personal
injury or property damage claim. See
Abraham v. Milwaukee Mut. Ins. Co., 115 Wis.2d 678, 681, 341
N.W.2d 414, 416 (Ct. App. 1983).
To determine whether
Welch filed this action within the statute of limitations, the first issue is
whether the payment made by State Farm to Welch's insurer, American Family, for
the property damage to Welch's car was made "to [Welch], or to another on
[her] behalf." See
§ 885.285, Stats.
We conclude that the
payment made by State Farm to American Family was a payment made on behalf of
Welch as contemplated by § 885.285, Stats. Although the payment was made to Welch's
insurer, rather than to her directly, the payment was for property damage
sustained by Welch, and thus was made "on her behalf."
The next issue is when
the last payment for the property damage was made. Welch contends that the last payment was made on the date that
American Family negotiated the check from State Farm, August 10, 1992. She thus contends that the statute of
limitations did not run until three years from that date, August 10, 1995. State Farm argues that the last payment was
made on the date it issued the check to American Family, April 3, 1992. State Farm thus contends that the statute of
limitations expired on April 3, 1995, and this action was not timely
filed.
This court has held that
"‘payment' requires an acceptance of a tendered check in order to extend
the three-year statute [of limitations]."
Parr v. Milwaukee Bldg. & Constr. Trades, 177 Wis.2d
140, 148, 501 N.W.2d 858, 861 (Ct. App. 1993).
We stated that "the mere tender of a check" does not
constitute "payment." Id. Because it is
unclear from the record when American Family received the check from State Farm
and when it "accepted" the check in payment of Welch's property
claim, we remand to the trial court for a factual determination as to when
State Farm's check was accepted by American Family Insurance. The statute of limitations began to run on
the date that the check was accepted.
By the Court.—Judgment
reversed and cause remanded with instructions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.