PUBLISHED OPINION
Case No.: 96-1031
†Petition for
review filed.
Complete
Title
of
Case:MEGAN M. LORD AND
PETER W. LORD, BY GUARDIAN AD LITEM, JOHN C. ALBERT, AND ESTATE OF PETER O.
LORD, BY PERSONAL REPRESENTATIVE KIM LORD,
Plaintiffs-Respondents-Cross
Appellants,†
v.
HUBBELL, INC., AND LIBERTY MUTUAL
INSURANCE COMPANY,
Defendants-Appellants-Cross
Respondents.
Submitted
on Briefs: January 16, 1997
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: April 10, 1997
Opinion
Filed: April
10, 1997
Source
of APPEAL Appeal and
Cross-Appeal from a
judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Patrick
J. Fiedler
so
indicate)
JUDGES: Vergeront,
Roggensack and Deininger, JJ.
Concurred: Roggensack,
J.
Dissented: Roggensack,
J.
Appellant
ATTORNEYSFor the defendants-appellants-cross
respondents the cause was submitted on the briefs of Frank A. Scherkenbach,
Jeffrey S. Fertl and Sheila M. Gavin of Hinshaw &
Culbertson of Milwaukee.
Respondent
ATTORNEYSFor the plaintiffs-respondents-cross
appellants the cause was submitted on the brief of John C. Albert of Eustice,
Albert, Laffey & Fumelle, S.C. of Sun Prairie.
COURT OF
APPEALS DECISION DATED AND
RELEASED April
10, 1997 |
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. 96-1031
STATE OF WISCONSIN IN
COURT OF APPEALS
MEGAN
M. LORD AND PETER W. LORD, BY GUARDIAN
AD
LITEM, JOHN C. ALBERT, AND ESTATE OF PETER O.
LORD,
BY PERSONAL REPRESENTATIVE KIM LORD,
Plaintiffs-Respondents-Cross Appellants,
v.
HUBBELL,
INC., AND LIBERTY MUTUAL INSURANCE
COMPANY,
Defendants-Appellants-Cross Respondents.
APPEAL
and CROSS-APPEAL from a judgment of the circuit court for Dane County: PATRICK J. FIEDLER, Judge. Reversed and cause remanded with
directions.
Before
Vergeront, Roggensack and Deininger, JJ.
VERGERONT,
J. This appeal concerns a statutory
survival claim for personal injuries brought by the estate of Peter O. Lord
pursuant to § 895.01(1), Stats.,[1]
and a wrongful death claim under §§ 895.03 and 895.04(1), Stats.,[2]
brought by Megan Lord and Peter W. Lord, the minor children of the decedent.[3] The trial court dismissed both claims on the
ground of improper service and dismissed both without prejudice, concluding
that the statute of limitations had not run as to either claim. The defendants, Hubbell, Incorporated and
its insurer, Liberty Mutual Insurance Company,[4]
appeal on the ground that the estate's survival claim should have been
dismissed with prejudice because the statute of limitations had run on that
claim. The estate and the minor
children cross-appeal, asserting that the defect in service was a technical
error that should not result in dismissal and that Hubbell was equitably
estopped from raising the statute of limitations defense.
We
conclude that, because the plaintiffs conceded below that service was improper
and there was no personal jurisdiction over Hubbell, they waived the right to
raise the "technical error" issue on appeal. We also conclude that the trial court
properly exercised its discretion in deciding that the defendants were not
equitably estopped from raising the statute of limitations defense. Finally, we conclude that the statute of
limitations has run on the estate's survival claim, and that claim therefore
should be dismissed with prejudice.[5]
BACKGROUND
The
facts pertinent to this appeal are not disputed. The complaint, filed on May
11, 1995, alleged that Peter O. Lord sustained a severe electrical shock on
September 15, 1992, during his employment at Dairy Equipment Company from a
plug and receptacle manufactured by Hubbell.
He suffered conscious pain and suffering and bodily injury and died that
same day due to cardiac failure.
Plaintiffs'
counsel[6]
attempted to serve Hubbell through its registered agent in Wisconsin but
learned that Hubbell's certificate of authority to transact business in
Wisconsin had been revoked. On May 19,
1995, plaintiffs' counsel sent to Hubbell's chief counsel by regular mail a
copy of the summons and complaint along with a letter requesting that he admit
service by executing and returning the enclosed admission form. Hubbell's chief counsel did not do that, and
Hubbell did nothing to admit service.
Plaintiffs made no further attempt to personally serve with process any
agent, servant or employee of Hubbell.
Hubbell's counsel did receive the summons, complaint and admission of
service form.
Hubbell
filed its answer to the complaint and affirmative defenses on June 14, 1995,
raising the affirmative defenses of improper service and lack of personal
jurisdiction. That same day,
plaintiffs' counsel wrote Hubbell's counsel asking for the basis of Hubbell's
jurisdictional defense. Hubbell's
counsel did not answer that letter.
Hubbell
made no mention of any defect in service or personal jurisdiction in its
pretrial conference data sheet, filed on August 31, 1995, at the telephone
scheduling conference with the court's law clerk and all counsel on September
11, 1995, or at the scheduling conference with the court on November 8,
1995. Neither the original nor the
second pretrial scheduling order mentioned these defenses. During these months, Hubbell served
discovery requests on the plaintiffs, served a subpoena requiring production of
the allegedly defective plug and receptacle, entered into a stipulation with
plaintiffs' counsel concerning custody of the evidence, and noticed and took
depositions.
The
plaintiffs filed an amended summons and complaint on December 8, 1995,
adding an additional ground--negligent failure to warn--for both the wrongful
death claim and the estate's survival claim.
Hubbell answered the amended complaint, asserting as affirmative
defenses improper service of the complaint and amended complaint and lack of
personal jurisdiction.
On
January 12, 1996, Hubbell filed a motion to dismiss both claims because of
improper service and lack of personal jurisdiction and to dismiss the estate's
survival claim with prejudice because the three-year statute of limitations for
a personal injury claim had run.[7] See § 893.54(1), Stats.
The plaintiffs responded by arguing that Hubbell had waived the defenses
of improper service and lack of personal jurisdiction, and was estopped from
asserting a statute of limitations defense.
The plaintiffs also argued that the statute of limitations on the
estate's survival claim, like the wrongful death claim of the minor children,
was tolled until two years after the children turned eighteen under
§ 893.16(1), Stats.[8]
At
the hearing on the motion, plaintiffs' counsel conceded that the service on
Hubbell did not constitute proper service and that there was therefore no
personal jurisdiction over Hubbell.[9] The court concluded that Hubbell had not
waived defenses based on improper service and lack of personal jurisdiction and
was not estopped from raising a statute of limitations defense. The court dismissed the claims of the estate
and of the minor children without prejudice because it concluded that the
tolling statute applicable to the minors' wrongful death claim also applied to
the estate's survival claim, since the two minors were the only beneficiaries
of the estate.
DISCUSSION
Service of Process
We address first the
plaintiffs' argument on cross-appeal that the defect in service was technical
and therefore not fatal in the absence of prejudice. We credit counsel for acknowledging forthrightly that this
argument was not made before the trial court.
However, we decline to decide this issue. We generally do not decide issues that are raised for the first
time on appeal. Wengerd v.
Rinehart, 114 Wis.2d 575, 580, 338 N.W.2d 861, 865 (Ct. App.
1983). In this case, besides not
raising the issue below, plaintiffs' counsel conceded to the trial court that
service was improper and there was no personal jurisdiction over Hubbell. Plaintiffs' appellate argument presents no
compelling reason for departing from our general rule.
Estoppel
We next address
plaintiffs' argument that Hubbell is equitably estopped from raising the
statute of limitations defense. The
first issue here is whether, as Hubbell claims, plaintiffs are precluded from
making this argument because they did not refer to it in their notice of
cross-appeal but mentioned only the trial court's ruling on waiver of the
defenses of improper service and lack of personal jurisdiction. We hold plaintiffs are not precluded from
arguing equitable estoppel on appeal, an argument they made below.
The
contents of a notice of appeal, including a notice of cross-appeal, are
specified by statute, § 809.10(1) and (2), Stats. There is no
requirement that the particular issues sought to be raised on appeal be
included in the notice of appeal or cross-appeal. Moreover, a cross-appeal is not necessary when the error
complained of by the respondent, if corrected, would sustain the judgment or
order that the appellant appeals. State
v. Alles, 106 Wis.2d 368, 390-91, 316 N.W.2d 378, 388 (1982). If the plaintiffs are correct that Hubbell
is equitably estopped from raising a statute of limitations defense, that is an
alternative ground for affirming the trial court's decision that the estate's
claim should be dismissed without prejudice.
Therefore, plaintiffs could make this argument in their responsive brief
without filing a cross-appeal.
Turning
to the merits of plaintiffs' assertion that the trial court should have held
that Hubbell was equitably estopped, we conclude that the trial court did not
erroneously exercise its discretion.
Whether
to apply estoppel to preclude a party from raising a defense is within the
trial court's discretion. Gonzalez
v. Teskey, 160 Wis.2d 1, 13, 465 N.W.2d 525, 530 (Ct. App. 1990). We affirm discretionary determinations of
the trial court if it applied the correct law to the record and, through a
logical process, reached a result a reasonable judge could reach. Rodak v. Rodak, 150 Wis.2d
624, 631, 442 N.W.2d 489, 492 (Ct. App. 1989).
The six rules that a trial court is to consider in deciding whether to
apply equitable estoppel are:
(1) The doctrine may be applied to preclude
a defendant who has been guilty of fraudulent or inequitable conduct from
asserting the statute of limitations;
(2) The aggrieved party must have failed
to commence an action within the statutory period because of his or her
reliance on the defendant's representations or act;
(3) The acts, promises or representations
must have occurred before the expiration of the limitation period;
(4) After the inducement for delay has
ceased to operate, the aggrieved party may not unreasonably delay;
(5) Affirmative conduct of the defendant
may be equivalent to a representation upon which the plaintiff may rely to his
or her disadvantage; and
(6) Actual
fraud, in a technical sense, is not required.
Hester, 117 Wis.2d at 644-45, 345 N.W.2d at 431.
In
making its decision, the trial court recited each fact pertinent to estoppel,
confirming with both counsel that there was no dispute as to each fact. The court determined that Hubbell's counsel
was under no obligation to respond to plaintiffs' counsel's June 12, 1995
letter inquiring about the basis for the defense of improper service and lack
of personal jurisdiction. The court
acknowledged that it was initially troubled by this failure, because a timely
response would have permitted plaintiffs to correct the defect in service
before September 15, 1995. However, the
court concluded, following Hester, that Hubbell's counsel had no
obligation to do so. That is an
accurate analysis of Hester, in which the court concluded that
defense counsel was not under an obligation to alert opposing counsel to
noncompliance with statutes on service, especially since the defect was
dispositive of the case. Id.
at 645, 345 N.W.2d at 431.
The
trial court then applied the six Hester rules to the facts,
noting that the relevant time period was from the filing of the action on May
11, 1995 to September 15, 1995, three years from the date of Lord's death. First, the court determined that there was
neither fraud nor inequitable conduct by Hubbell or its counsel. Considering the second and third rules
together, the court determined that there was no act, promise or representation
by Hubbell that it would not at some point pursue the defense that it had
already asserted in its answer: the
failure to respond to the June 12 letter was not such an act, promise, or representation
because Hubbell's counsel had no obligation to advise of the service problem
and indeed had an obligation to his client not to do so.
Fourth,
the court determined that plaintiffs' counsel acted promptly to obtain a
hearing when it learned Hubbell was asserting the defense by motion. Fifth, the court determined that the only
affirmative conduct by Hubbell was moving forward with discovery, and that was
not the equivalent of a representation that it was not going to pursue the
defenses it had asserted in its answer.
The sixth rule--no actual fraud in a technical sense required--is an
elaboration on the first rule, which the court had already applied. The final point the court made was that the
interest in zealous advocacy outweighed any professional courtesy to opposing
counsel, restating the teaching it drew from Hester.
The
court's careful attention to the pertinent facts, its correct application of
the law, and its thorough and reasoned explanation for its conclusions
demonstrate a proper exercise of discretion.
Statute of Limitations
We now decide whether
the statute of limitations for the estate's survival claim under § 895.01,
Stats., is tolled by 893.18(2), Stats., because the only beneficiaries
of the estate are the two minor Lords.
The parties agree that, although the statute of limitations for a
wrongful death claim is ordinarily three years, see § 893.54(2), Stats., it is tolled for the children's
wrongful death claim by the application of § 893.18(2) until two years
after they turn eighteen.[10] They disagree, however, on whether §
893.18(2) affects the statute of limitations for the estate's claim under §
895.01 for the decedent's personal injury.[11] This presents a question of law, which we
decide independently of the trial court.
See Tahtinen v MSI Ins. Co., 122 Wis.2d 158, 166,
361 N.W.2d 673, 677 (1985). We conclude
that the estate's survival claim is not tolled by § 893.18(2).
As
the trial court correctly recognized, there is no case directly on point, but Korth
v. American Family Ins. Co., 115 Wis.2d 326, 340 N.W.2d 494 (1983),
provides the proper framework for resolving the issue. Because the court's analysis in Korth
is critical to our decision, and in order to explain why we reach a different
conclusion than did the trial court based on the same case, we discuss Korth
in some detail.
In
Korth, the parents of an injured child filed a claim for loss of
society and companionship and medical bills, along with their child's claim for
damages for her injuries. The two
claims were filed after the three-year statute of limitations for personal
injuries had passed but while the child was still a minor. The supreme court had decided in Shockley
v. Prier, 66 Wis.2d 394, 404, 225 N.W.2d 495, 501 (1975), that parents
of an injured child could maintain such an action provided the parents' claim
was combined with the child's claim, but did not address in Shockley
the statute of limitations for the parents' claim.
The
Korth court began by
noting "three undisputed principles" derived from Shockley: (1) two causes of action arise for a
child's injuries--the child's for injury to the child and the parents for
invasion of the parents' interests; (2) the parents may maintain such an
action, and (3) the parents' action must be combined with the child's
action. Korth, 115 Wis.2d
at 330-31, 340 N.W.2d at 496. The court
noted that classifying the two claims as either separate or derivative was not
helpful and that the better approach was to examine the legal context in which
the question about the relationship between the two claims arises and make a
decision that furthers the policies of the particular statutes at issue. Id. at 331-32, 340 N.W.2d at
496.
The
court next identified the policies of the statutes. The purpose of § 893.54(1), Stats., like all statute of limitations, is to ensure prompt
litigation of valid claims and to protect the defendant from fake or fraudulent
claims brought after evidence has been lost and memories faded. Id. at 332, 340 N.W.2d at
497. The purpose of § 893.18(2), Stats., is to ensure that the minor
does not lose rights because a guardian neglected to protect the minor's
interest by bringing an action in a timely fashion. Id.
The
court then applied these policies to the claims before it. The court noted that because the parents'
claim must be combined with the child's, and the parents' claim must be filed
within three years, the child's claim must also be filed within three
years. This could be beneficial to the
child, the court stated, because it would force the child's claim to be brought
promptly, but it might not be in a particular case. The court stated that although giving the minor's representative
the opportunity to delay suit beyond three years was not the purpose of the
tolling statute, that was the effect of the statute.
As
for the interest of defendants, the court concluded that they would not
necessarily be additionally burdened by the longer statute of limitations for
the parents' claim, because they had to preserve evidence and maintain
readiness to defend against the minor's claim in any case.
Finally,
the court considered a third factor--that the parents' interpretation of the Shockley
decision and the statutes was a reasonable one, and that another interpretation
would unfairly deny them access to the courts.
After
applying the policies to the case before it, the court concluded that there
were equally strong public policy reasons for both interpretations. The court adopted the interpretation
applying the tolling provision to the parents' claim "to allow the minor
or the minor representative a longer limitations period, to encourage the
policies underlying the joinder requirement, and to apply a fair and reasonable
construction of the statutory provisions." Id. at 334, 340 N.W.2d at 497.
Following
the reasoning process of the court in Korth, we begin by
discussing the children's wrongful death claim, the estate's survival claim,
and the relationship between the two.
Both claims are created by statute.
Wangen v. Ford Motor Co., 97 Wis.2d 260, 312, 294 N.W.2d
437, 463 (1980). The claim under
§ 895.01, Stats., is for
damages for the pain and suffering that the deceased suffered prior to his or
her death. Id. at 310,
294 N.W.2d at 463. That claim, by
virtue of the statute, survives the death and passes to the decedent's
estate. Id. at 310-11,
294 N.W.2d at 463. The wrongful death
claim belongs to the persons named in the statute who have suffered pecuniary
loss and loss of society and companionship because of the person's death. Id. at 312, 294 N.W.2d at 463.
Although
the personal representative of the estate may bring the wrongful death claim as
an agent for the relatives designated in the statute, § 895.04(1) and (2),
Stats., the action for wrongful
death does not belong to the estate but to the designated beneficiaries. Nichols v. United States Fidelity
& Guaranty Co., 13 Wis.2d 491, 496-97, 109 N.W.2d 131, 134-35
(1961). A wrongful death claim is
derivative of the decedent's claim for personal injury in that there is
liability under the former only if and to the extent that the injured person
could have recovered had death not occurred.
Ruppa v. American States Ins. Co., 91 Wis.2d 628, 646, 284
N.W.2d 318, 325 (1979).
The
principles we draw from the nature and relationship of these two claims differ
from the three principles that framed the analysis of the court in Korth. First, the two causes of action at issue in
this case do not arise from injury to the children but from injury, resulting
in death, to their father. This means
that the children are not involved in the estate's survival claim except in the
sense that they are the beneficiaries of the estate: testimony and evidence from them and relating to them is not part
of the estate's survival claim. Second,
there is no requirement that a wrongful death claim be joined with the estate's
survival claim, see Muchow v. Goding, 198 Wis.2d 609, 627, 544
N.W.2d 218, 224 (Ct. App. 1995), as there is a requirement that a parent's
claim arising from injury to his or her child be joined with the child's claim.
We
now apply to the claims before us the policy underlying the tolling statute and
the policy underlying the statute of limitations in § 895.54, Stats., as articulated in Korth. It is true here, as in Korth,
that defendants must be prepared to preserve evidence and maintain readiness to
defend against the children's wrongful death claim until the expiration of the
tolling statute, and in that sense the longer statute of limitations for the
estate's survival claim does not necessarily put an additional burden on
defendants.
However,
the other side of the equation is significantly different than in Korth. First, since the survival claim and the
wrongful death claim need not be joined, having the same statute of limitations
for both will not necessarily result in only one action. Second, if there are reasons in a particular
case relating to the children's interests to delay the wrongful death claim
beyond three years, there are no reasons the estate's survival claim, which
does not involve the children, cannot be brought separately within the three
years. Third, a prompt disposition of
the estate's claim will benefit the estate's beneficiaries, including minor
beneficiaries. Because of the duties
imposed on personal representatives of estates for resolving claims whether the
beneficiaries are minors or not, there appears to be little need to toll the
statute of limitations to ensure that minor beneficiaries do not lose rights
because the personal representative neglects to act promptly.
The
application of the third policy the court considered in Korth--a
fair and reasonable construction of the statutory provision--also takes a
different course in this case. The
court in Korth noted that the parents' interpretation of Shockley
and the two statutes at issue was a reasonable one. In this case, the filing of the estate's claim after the
three-year statute of limitations did not occur because of the estate's
interpretation of statutes or case law on the statute of limitations for its
claim, but because of improper service.
The policies, statutes, and case law relating to service of a summons
and complaint are distinct from those relating to statutes of limitations. While the effects of the former may seem
harsh in a particular case, they are not pertinent to a fair and reasonable
interpretation of the statute of limitations at issue in this case.
In
considering what is a fair and reasonable interpretation of the minor tolling
statute in conjunction with the statute of limitations for the estate's
survival claim, we must recognize that it will not always be the case that the
minors who have the right to bring a wrongful death claim are the
beneficiaries, and the only beneficiaries, of the estate. Although the trial court limited its ruling
to just those circumstances, we are persuaded that we must consider the effect
of this interpretation on other situations that may arise under the same
statutes. If there are beneficiaries of
the estate in addition to the minor or minors having a right to recover on a
wrongful death claim, is the estate's claim tolled then? If the estate's survival claim is tolled
when minor children of the decedent may bring a wrongful death claim, is an
injured parent's claim, where death does not result, tolled when the minor child
has a claim for loss of society and companionship resulting from the parent's
injuries? See Theama v.
City of Kenosha, 117 Wis.2d 508, 525-26, 344 N.W.2d 513, 521 (1984)
(establishing child's right to recover for loss of parent's society and
companionship resulting from injury to parent caused by another's
negligence).
The
complexity and uncertainty that plaintiffs' interpretation introduces weighs
against their interpretation. Although
we are mindful that we are to look beyond the labels of "derivative"
and "separate" claims, we note that these complexities arise in part
because the plaintiffs urge us to apply the minor tolling statute in a case
where the underlying injury is not to a minor, as in Korth, but
where the minor's claim (wrongful death) arises from the injury to a parent--a reversal
of the relationship of the claims in Korth.
We
conclude that, on balance, public policy favors applying the three-year statute
of limitations to the estate's survival claim.
Tolling the statute of limitations for the estate's claim is not necessary
to ensure that the interests of minor beneficiaries of estates are protected;
it will not necessarily result in only one piece of litigation; and it is not
necessary to provide a guardian or parent the opportunity to wait longer than
three years to bring the claim requiring the minor's involvement--the wrongful
death claim--if that is in the child's interests. In addition, the justification for plaintiffs' interpretation is
not based on the nature and relationship of the two claims but on the particular
configuration of the estate's beneficiaries and the wrongful death claimants in
this case. This justification does not
provide a reasoned and predictable basis for interpreting the same statutes
when that configuration varies.
On
the other hand, applying a three-year statute of limitations to the estate's
claim will promote the prompt resolution of estates' survival claims, will
avoid injecting complexity and uncertainty in an area where predictability and
clarity are desirable, and is consistent with the result in Korth,
which adopted the statute of limitations applicable to the underlying injury
giving rise to the claims.
We
therefore conclude that the trial court erred in dismissing the estate's
survival claim without prejudice. Since
the three-year statute of limitations had expired, that claim should have been
dismissed with prejudice.
By
the Court.—Judgment reversed
and cause remanded with directions.
No. 96-1031(CD)
ROGGENSACK,
J. (concurring in part; dissenting in part). I concur in this court's conclusion that the trial court lacked
personal jurisdiction over Hubbell due to improper service, and that the
respondents waived the "technical error" objection to that issue by
not raising it at the trial court level.
However, I respectfully dissent from the remainder of the opinion.
In
order to decide the merits of a case, a court must have both subject matter
jurisdiction and personal jurisdiction.
P.C. v. C.C., 161 Wis.2d 277, 297, 468 N.W.2d 190, 198
(1991). Personal jurisdiction requires
a party to have both a sufficient relationship to the court attempting to
exercise its power over the controversy, and notice of the claims being
made. See State v. Smith,
131 Wis.2d 220, 239, 388 N.W.2d 601, 609 (1986). A court has jurisdiction to determine its own power. Wisconsin Public Service Corp. v.
Krist, 104 Wis.2d 381, 391, 311 N.W.2d 624, 629 (1981). When personal jurisdiction is questioned,
the trial court must try that issue before reaching the merits of the
case. Pavalon v. Thomas Holmes
Corp., 25 Wis.2d 540, 547, 131 N.W.2d 331, 334-35 (1964).
Here,
it is Hubbell who is claiming a lack of personal jurisdiction due to improper
service and it is also Hubbell who is invoking the power of the court to decide
a statute of limitations question in its favor and an estoppel defense to the
statute of limitations against the respondents. Hubbell cannot have it both ways. Either there is power in the court to decide the merits of this
case, in which event the jurisdictional challenge cannot stand, or there is no
power for the trial court to go further than to decide the jurisdictional
question. Once it was determined that
no personal jurisdiction over Hubbell existed, the trial court lacked the legal
power to decide the merits of other issues Hubbell placed before it. See State ex rel. Angela M.W.
v. Kruzicki, 197 Wis.2d 532, 546, 541 N.W.2d. 482, 487 (Ct. App.
1995). Therefore, it is not appropriate
for this court to decide whether the statute of limitations has run, or whether
Hubbell should be equitably estopped from raising the statute of limitations as
a defense. I would hold that this case
was properly dismissed without prejudice, as is appropriate when there is a
lack of personal jurisdiction. Giese
v. Giese, 43 Wis.2d 456, 464, 168 N.W.2d 832, 836 (1969).
[1] Section 895.01(1), Stats., provides:
What actions
survive; actions not to abate. (1) In addition to the
causes of action that survive at common law, the following shall also
survive: cause of action ... for ...
other damage to the person....
[2] Section 895.03, Stats., provides:
Recovery for death
by wrongful act. Whenever the death of a person shall be
caused by a wrongful act, neglect or default and the act, neglect or default is
such as would, if death had not ensued, have entitled the party injured to
maintain an action and recover damages in respect thereof, then and in every
such case the person who would have been liable, if death had not ensued, shall
be liable to an action for damages notwithstanding the death of the person
injured; provided, that such action shall be brought for a death caused in this
state.
Section
895.04(1), Stats., provides:
Plaintiff in
wrongful death action. (1) An action for wrongful death may be
brought by the personal representative of the deceased person or by the person
to whom the amount recovered belongs.
[5] The concurrence/dissent addresses the
question whether the trial court had the authority to decide the statute of
limitations issue in the context of deciding whether the dismissal for lack of
jurisdiction should be with or without prejudice. Because neither of the parties, either before the trial court or
before this court, raises that issue, we do not address it.
[6] The guardian ad litem appointed to bring the
wrongful death action on behalf of the minor children and the attorney for the
estate are the same person, and we refer to him as "plaintiffs'
counsel."
[7] An action is commenced within the statute of
limitations when a summons and complaint are filed prior to expiration of the
statute of limitations and then properly served within sixty days of
filing. Hester v. Williams,
117 Wis.2d 634, 640-41, 345 N.W.2d 426, 429 (1984).
[8] Section 893.16, Stats., provides in part:
Person under
disability. (1) If a person entitled to bring an
action is, at the time the cause of action accrues, either under the age of 18
years, except for actions against health care providers; or insane, or
imprisoned on a criminal charge the action may be commenced within 2 years
after the disability ceases, except that where the disability is due to
insanity or imprisonment, the period of limitation prescribed in this chapter
may not be extended for more than 5 years.
[9] Section 801.11(5)(a)-(c), Stats., provides that service of the
summons upon a corporation may be made by personal service on an officer,
director or managing agent of the corporation or by leaving the summons at
their office with someone apparently in charge of the office; under certain
circumstances, by publication and mailing; or in a manner specified in another
statute for serving an agent authorized by law to accept service of a summons
for the defendant.
[10] Section 895.04(1), Stats., provides that either the personal representative of
the deceased or the persons to whom the amount recovered belongs--in this case,
the two minor children because their father was not married at the time of his
death--may bring the wrongful death action.
To avoid separate actions for the same wrongful death, if actions for
the same wrongful death are not consolidated so that a single judgment may be
entered, only an action by the personal representative is permitted to
proceed. Section 895.04(3). Because the minors in this case are bringing
the wrongful death claim before the eighteenth birthday of either, we need not
decide how the tolling provision for minors applies when there are two or more
minors, with different birth dates, who are entitled to recover for a wrongful
death.