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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 6, 1996 |
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. 95-2025-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
COLLEEN LUNDBERG
and WALTER LUNDBERG,
Plaintiffs-Appellants,
v.
NORTH MEDICAL
TRANSPORTATION,
LINDA JORGENSEN,
RENEE STAPLES,
JOHN HELSTERN,
TERI HELSTERN,
XYZ INSURANCE COMPANY,
SIREN FIRE DEPARTMENT
and CONTINENTAL
WESTERN INSURANCE
COMPANY,
Defendants,
DANBURY VOLUNTEER
FIRE DEPARTMENT
and SENTRY INSURANCE,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Burnett County:
JAMES H. TAYLOR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Colleen and Walter Lundberg appeal a judgment that
dismissed their lawsuit against the Danbury Volunteer Fire Department and
Sentry Insurance.[1] Their lawsuit alleged that the Danbury
Volunteer Fire Department negligently injured Colleen while attempting to
extract her from her motor vehicle after a car accident. The Lundbergs submitted their notice of
claim to the Danbury Volunteer Fire Department. They received a notice of disallowance of claim from the Town of
Swiss. The notice referred to the date
of the incident but not the Danbury Volunteer Fire Department. The Lundbergs did not initiate their lawsuit
within six months of the notice under § 893.80(1)(b), Stats.
They claimed that they had no knowledge of any involvement in the
accident by the Town of Swiss and continued to wait for a notice referring to
an entity with the name Danbury. They
cited maps, road signs, fire department vehicles, and the firehouse itself, all
of which used the name Danbury, in reference to the unincorporated Town of
Danbury. The Lundbergs never contacted
the incorporated Town of Swiss about the notice.
The trial court
dismissed the Lundbergs' lawsuit on the ground that the Lundbergs had not initiated
their lawsuit within six months of the Town of Swiss' notice disallowing their
notice of claim, in violation of § 893.80(1)(b), Stats. The trial
court ruled that the Danbury Volunteer Fire Department was a subdivision of the
Town of Swiss, not a separate legal entity, and that the Town of Swiss' notice
was effective to initiate the running of the six-month deadline under §
893.80(1)(b) regarding the Lundberg's claim alleging negligence by the Danbury
Volunteer Fire Department. On appeal,
the Lundbergs offer two basic arguments: (1) the Town of Swiss' notice of claim
disallowance was deceptive to the point of voiding the notice and estopping
enforcement of the six-month statutory deadline; and (2) the Danbury Volunteer
Fire Department was a de facto separate, suable legal entity. We reject these arguments and affirm the
judgment.
First, the Town of
Swiss' notice of claim disallowance was sufficient. It correctly identified the incident and notice of claim. It did not become deceptive or misleading by
virtue of the fact that it failed to identify the Danbury Volunteer Fire
Department as a subdivision of the Town of Swiss or to refer to the Danbury
Volunteer Fire Department in any fashion.
When the Lundbergs received the Town of Swiss' notice, they should have
made the connection and spotted the link between the Town of Swiss' notice and
their own notice of claim. At that
point, in spite of the fact that the name Danbury appears on official state
maps, road signs, fire department vehicles, and the firehouse itself, the
Lundbergs could no longer reasonably continue their assumption that the Danbury
Volunteer Fire Department was a separate legal entity that would be eventually
providing them a separate notice of claim disallowance. Rather, at that point, they failed to
exercise reasonable investigative diligence.
Parties are constructively on notice of the existence and location of
municipalities, and the failure to identify a town in a notice of claim
disallowance is no grounds to estop the town.
In sum, the trial court correctly refused to void the notice and estop
enforcement of the six-month statutory deadline.
Second, the Danbury
Volunteer Fire Department is not a separate legal entity with an obligation to
provide the Lundbergs a separate notice of claim disallowance. It does not have the attributes of a
separate legal entity. For example, it
receives all of its funds from the Town of Swiss. It has no independent revenue raising or proprietary powers. The record contains no evidence that the department
owns the equipment or buildings it uses.
The department is, in reality, a subdivision of the Town of Swiss. The fact that the department has its own
bylaws, holds monthly meetings with voting by its active membership, and elects
officers with some degree of authority to administer the department's funds,
does not make the department a de facto separate legal entity. The Town of Swiss has apparently delegated
these comparatively minor powers to the department for administrative
convenience. They do not free the
department from the Town of Swiss' ultimate control. In sum, the Lundbergs may not maintain a lawsuit against the
Danbury Volunteer Fire Department, either as a subdivision of the Town of Swiss
or as a de facto separate legal entity.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.