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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No.
93-3348
STATE OF WISCONSIN : IN SUPREME COURT
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Clinton J. Colby, Plaintiff-Appellant, v. Columbia County, Wisconsin, and Columbia County Highway
Commissioner, Kurt Dey, or his predecessor in interest, Defendants-Respondents-Petitioners. |
FILED JUNE 28, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
REVIEW of a decision of the court of
appeals. Affirmed.
JON
P. WILCOX, J. The defendant-respondent-petitioner Columbia
County seeks review of a decision of the court of appeals which reversed a
circuit court order dismissing a personal injury action against Columbia County
and Columbia County Highway Commissioner Kurt Dey (Columbia County) filed by
the plaintiff-appellant-respondent Clinton J. Colby (Colby). See Colby v. Columbia County,
192 Wis. 2d 397, 531 N.W.2d 404 (Ct. App. 1995). The circuit court had dismissed the action against Columbia
County on the ground that Colby's claim had accrued more than 3 years before
the commencement of the action and, therefore, the action was barred by the
statute of limitations under Wis. Stat. § 893.54 (1993-94).[1] The appellate court reversed, holding that
the 3-year statute of limitations had been tolled when Colby filed his first
complaint against Columbia County, despite such action having been dismissed as
premature. Colby, 192
Wis. 2d at 398-99.
We
are presented with two issues on this appeal.
First, was the premature filing of a summons and complaint that was
subsequently dismissed because of the failure to comply with the provisions of
Wis. Stat. § 893.80(1)(b), sufficient to toll the statute of
limitations? Secondly, we are asked to
consider whether the decision of the court of appeals in Fox v. Smith,
159 Wis. 2d 581, 464 N.W.2d 845 (Ct. App. 1990), failed to observe the
precedent established by this court in Maynard v. De Vries, 224 Wis. 224,
272 N.W. 27 (1937) and should be reversed.
I.
The
facts on this review are not in dispute.
On March 10, 1990, Colby was injured in a motor vehicle accident in
Columbia County when the vehicle in which he was a passenger struck a concrete
abutment located approximately two feet from the highway. Colby was rendered a quadriplegic as a
result of the accident. Though
retaining counsel in August 1990, Colby did not file a notice and claim with
the clerk of Columbia County, pursuant to Wis. Stat. § 893.80(1)(b), until
February 24, 1993, less than three weeks before the statute of limitations was
set to expire, on March 10, 1993. Section 893.80(1) provides in relevant part
as follows:
[N]o
action may be brought or maintained against any
. . . political corporation, governmental subdivision or
agency thereof . . . upon a claim or cause of action
unless:
. . .
(b) A claim
containing the address of the claimant and an itemized statement of the relief
sought is presented to the appropriate clerk or person who performs the duties
of a clerk or secretary for the . . . corporation,
subdivision or agency and the claim is disallowed. Failure of the appropriate body to disallow within 120 days after
presentation is a disallowance.
Thereafter,
a summons and complaint was filed against Columbia County in Columbia County
Circuit Court on February 26, 1993, by Colby and his parents. The Columbia County Board formally denied
the claim on March 17, and in its answer, moved to dismiss the complaint. Columbia County contended that the action
was filed prematurely, as Colby had failed to wait the required 120 days to
file the complaint after filing his claim, as required by Wis. Stat.
§ 893.80(1). On July 19, 1993, the
Honorable Andrew B. Bissonette granted the motion in a memorandum decision, and
an order of dismissal without prejudice was entered on August 9, 1993.
On
August 10, 1993, Colby filed a second summons and complaint, which Columbia
County again moved to dismiss, claiming that it was not timely filed under Wis.
Stat. § 893.54. The motion was
granted by the circuit court on November 5, 1993, the Honorable Daniel W.
Klossner presiding. The circuit court
reasoned that the statute of limitations had not been tolled when the plaintiff
filed his initial claim because that filing had not commenced an action. In its holding, the circuit court
acknowledged a decision of the appellate court which had addressed this issue, Fox
v. Smith, 159 Wis. 2d 581, 464 N.W.2d 845 (Ct. App. 1990), and had
concluded that Wis. Stat. § 893.13(2) tolled the running of a statute of
limitations where the first complaint was defective because it was prematurely
filed under Wis. Stat. § 893.80(1)(b).
However, the circuit court declined to follow this decision, stating
that the Fox opinion conflicted with an earlier decision of this court, Maynard
v. De Vries, 224 Wis. 224, 272 N.W. 27 (1937), which clearly required that
Colby's second complaint be dismissed.
Colby
appealed, and Columbia County filed a Petition to Bypass, which was denied by
this court on July 19, 1994. On March 2, 1995, the court of appeals
released its opinion reversing the decision of the circuit court. The appellate court concluded that the
commencement of a suit prior to the expiration of the statute of limitations
does toll the statute under Wis. Stat. § 893.13[2]
even if the action is later dismissed for failure to comply with the 120-day
period for disallowance by the county, as prescribed under Wis. Stat.
§ 893.80. Colby, 192
Wis. 2d at 400-01. Further, the
court of appeals stated that its decision in Fox was controlling on the
issue, and was not in conflict with this court's earlier decision in Maynard. Id. at 406. Columbia County thereafter filed a Petition for Review which was
accepted by this court on May 10, 1995.
II.
On
this review, we are asked to interpret the relationship between Wis. Stat.
§ 893.13, Wis. Stat. § 893.23 and Wis. Stat. § 893.80. A question of statutory interpretation
involves a question of law that this court reviews without deference to the
decisions of the circuit or appellate courts.
Pufahl v. Williams, 179 Wis. 2d 104, 107, 506 N.W.2d 747
(1993) (citations omitted). When the
court confronts an inconsistency between statutes, it should try to reconcile
them without nullifying one or the other, in a manner that will effect
legislative intent. Phillips v.
Wisconsin Personnel Comm'n, 167 Wis. 2d 205, 217, 482 N.W.2d 121 (Ct.
App. 1992).
The
determination of this issue, as the parties suggest, requires a unique
balancing of a plaintiff's right to access the courts with a governmental
entity's fundamental right[3]
to invoke a statute of limitations, as well as its legislatively mandated right
to have a claim presented to it before it is forced into costly and expensive
litigation. Periods of limitation
employ various policies espoused by the legislature:
The bar
created by operation of a statute of limitations is established independently
of any adjudicatory process. It is
legislative expression of policy that prohibits litigants from raising
claims--whether or not they are meritorious--after the expiration of a given
period of time. Under Wisconsin law the
expiration of the limitations period extinguishes the cause of action of the
potential plaintiff and it also creates a right enjoyed by the would-be
defendant to insist on that statutory bar.
In re Estate of Fessler, 100
Wis. 2d 437, 448, 302 N.W.2d 414 (1981) (citations omitted). The present case marks the intersection at
which an alleged dilatory plaintiff confronts the clear public policies
articulated in the Wisconsin Statutes involving the right of a county to limit
judicial proceedings against it.
Columbia
County's primary contention in this case is that a plaintiff may not commence
an action against the county until the provisions in Wis. Stat. § 893.80
have been satisfied. The County bases
this presumption upon the extensive legislative history as well as the words of
the statute, focusing particularly upon the statement that "no action may
be brought or maintained." The
County contends that in construing the statute, the phrase "no action may
be brought" has a peculiar meaning in the law, such that
"brought" and "commenced" are commonly deemed to be
synonymous. See Schwartz v.
City of Milwaukee, 43 Wis. 2d 119, 168 N.W.2d 107 (1969). Therefore, the County asserts that the
statutory language "no action can be brought" can only mean that
"no action may be commenced."
We agree with this construction.
The
County then directs our attention to this court's earlier decision in Maynard
to support its contention that since Wis. Stat. § 893.80(1)(b) provides
that no action may be brought or maintained against a governmental subdivision
unless the claim has been rejected or 120 days have passed since the notice was
filed, Colby did not commence his action when he served a summons and complaint
under Wis. Stat. § 893.02 without first fulfilling the requirements of §
893.80. Therefore, Columbia County
concludes that because no action had been commenced prior to the expiration of
the period of limitations, Colby was not entitled to the benefit of the tolling
provision in Wis. Stat. § 893.13, which requires a commencement to trigger
the saving provisions of the statute.
Thus, the County urges this court to reverse the decision of the court
of appeals, and dismiss Colby's action as untimely.
Assuming,
arguendo, that Columbia County is correct in its contention that the
legislature intended to prohibit a plaintiff
from commencing an action against a
governmental subdivision until the requirements of Wis. Stat. § 893.80 are
satisfied, and the plaintiff is not entitled to the tolling statute, Wis. Stat.
§ 893.13, then the plaintiff, in effect, would be subjected to a
"statutory prohibition" from filing until the expiration of the
120-day disallowance period. If in fact
Colby is precluded from filing his claim against Columbia County by virtue of §
893.80, he argues that nevertheless, he is entitled to the tolling provisions
contained within Wis. Stat. § 893.23 which states:
893.23 When Action Stayed. When the commencement of an action is stayed
by injunction or statutory prohibition, the time of the continuance of
the injunction or prohibition is not part of the time limited for the
commencement of the action. (Emphasis
added).
The
plain language of the statute clearly states that when the commencement of an
action is stayed by statutory prohibition, the limitations period is tolled
until such prohibition is terminated.
The legislative history of this statutory provision is scarce and
uninformative, and the parties have not provided us with any additional insight
as to the relative applicability of the statute to the facts presented before
us. There are only two reported cases
involving earlier versions of the statute, neither of which are applicable to
the facts before us or instructive as to the statute's force and effect[4],
and Columbia County has not presented an argument which overcomes the language
of the statute.
A
number of statutes, city charters, and ordinances generally prescribe that one
who has a tort claim against a governmental body shall provide to such body a
written notice of the claim within a specified time period, precluding the
commencement of an action until a designated time has expired after the giving
of the notice or until the claim has been rejected. One commentator has noted that such a statutory prohibition does,
in fact, operate to toll the statute of limitations:
Where the law
not only requires a presentation or notice of claim but also prohibits the
claimant from bringing suit until the claim is rejected or until the lapse of a
definite period of time after presentation or notice, the majority view is that
the claimant has no cause of action until the expiration of the time during
which he is prohibited from bringing suit, and therefore the period of
limitations does not begin to run until the end of the statutory prohibition.
Limitation Period as Affected By
Requirement of Notice or Presentation of Claim Against Governmental Body, 3 A.L.R. 2d
711, 712-13 (1949). Other states have
enacted statutes which provide that where the commencement of an action has
been stayed by injunction or by statutory prohibition, the time of the
continuance of the stay is not part of the time limited for the commencement of
an action. Id. at 719.[5]
A
tolling provision for statutory waiting periods virtually identical to that
contained in Wis. Stat. § 893.23 can be found in the statutory framework
of the state of New York. N.Y. CPLR Law § 204 (McKinney 1996), with historical
origins dating back to the Field Codes in 1848, provides as follows:
§
204. Stay of commencement of action;
demand for arbitration.
(a) Stay.
Where the commencement of an action has been stayed by a court or by statutory
prohibition, the duration of the stay is not a part of the time within which
the action must be commenced.
(b) Arbitration. Where it shall have been determined that a party is not obliged
to submit a claim to arbitration, the time which elapsed between the demand for
arbitration and the final determination that there is no obligation to
arbitrate is not part of the time within which an action upon such claim must be
commenced. The time within which the
action must be commenced shall not be extended by this provision beyond one
year after such final determination.
Section CPLR 204(a) operates to toll the
statute of limitations when the commencement of an action is stayed by
statutory prohibition, thereby extending the period of limitations. For example, N.Y. PAL Law § 1276(1)
(McKinney 1996) provides that a tort action may not be commenced against the
Metropolitan Transportation Authority until after 30 days have elapsed from
service upon the Authority of a notice of claim and the Authority has neglected
or refused to adjust or pay the claim.
In Burgess v. Long Island R.R. Authority, 587 N.E.2d 269 (N.Y.,
1991), the court of appeals viewed the 30-day waiting period as a
"stay" within the meaning of CPLR 204(a). Thus, the period of the stay was not to be
counted as part of the 1-year limitations period for an action against the
Authority, and the plaintiff could commence the action at any time up to 1 year
and 30 days from the accrual of the cause of action.[6]
Recognizing
the inconsistent extensions of time which resulted when calculating a
plaintiff's period of limitations for bringing actions against various
quasi-governmental entities, the New York legislature sought to clarify and
make uniform existing provisions with respect to the filing of claims and the
commencement of actions when it enacted Section 50-i of the General Municipal
Law.[7] The statutory language thereby renders the
toll of CPLR 204(a) largely inoperative in tort actions against cities,
counties, towns, villages, fire districts and school districts, as GML 50-i(1)
prescribes a limitations period of 1 year and 90 days for all such
actions. Neither the 30-day waiting
period following service of a notice of claim nor the time required when the
municipality conducts an examination of the claimant will operate to extend the
limitations period, see GML 50-i(3).
The no-extension language evinces the legislature's intent to preclude
the applicability of CPLR 204(a) in actions governed by GML 50-i. See Astromovich v. Huntington Sch.
Dist. No. 3, 436 N.Y.S.2d 93 (N.Y.A.D. 2 Dept., 1981), aff'd, 436
N.E.2d 192.(N.Y., 1982)[8] Following passage of the legislation in
1959, the court of appeals, in Baez v. New York City Health and Hospitals
Corp., 607 N.E.2d 787 (N.Y., 1992), held that in actions against the New
York City Health and Hospitals Corporation, "the Legislature did not
intend [the 30-day waiting period between service of a notice of claim and
commencement of the action and the time for claimant's compliance with a
pre-action examination request] to extend the limitations period." Id. at 789.
In
the present case, we conclude that the interplay between Wis. Stat.
§ 893.23 and Wis. Stat. § 893.80, in effect, creates a statute of
limitations equal to 3 years and 120 days when filing a claim under
§ 893.80. The 120-day waiting
period, required prior to the commencement of an action against the county,
must be added to the statutory limitation of 3 years in order to obtain the
time within which the action may be brought, thereby producing a 3-year-120-day
limitations period on tort claims against the county by operation of the
statutory stay of § 893.23.
Section 893.80(1)(b) requires that the plaintiff first provide the
county with a notice of claim, followed by either a denial of such claim by the
county, or the expiration of the 120-day disallowance period, prior to the
filing of a summons and complaint.
These requirements must be completed within the 3 year and 120-day
period of limitations. Though we
recognize that Wis. Stat. § 893.23 frustrates the clear public policies
which underlie the utilization of the notice of claims statute[9],
unless an exception can be found in the statute to preclude its applicability,
it cannot be imported by this court.
The solution to this conflict is a matter reserved to the province of
the legislature.
Although
Colby had not complied with the notice requirements of Wis. Stat. § 893.80
at the time he filed his first summons and complaint, he argues, nevertheless,
that the 3-year statute of limitations was tolled by his premature filing of a
summons and complaint on February 26, 1993.
We conclude that the filing of a summons and complaint, absent prior
satisfaction of the notice requirement of Wis. Stat. § 893.80, is not
sufficient to toll the statute of limitations, as the action has not yet been
commenced at such point. In
addition, Wis. Stat. § 893.23 does
not operate as a saving statute in the present case which would permit Colby to
prevail. Colby's first summons and
complaint, filed February 26, 1993, was defective, as he had failed to wait
until the County had either denied his claim, or the 120-day disallowance
period had expired. The second summons
and complaint was filed August 10, 1993, and was clearly outside the 3-year and
120-day period of limitations. As a result,
Colby is incorrect in his assertion that § 893.23 saves his first summons
and complaint.
However,
Colby also presents this court with the assertion that his second summons and
complaint was timely filed, predicated upon an interpretation of the tolling
effect of Wis. Stat. § 893.13(2) which provides that the statute of
limitations is "tolled by the commencement of the action to enforce the
cause of action to which the period of limitation applies." Colby rests upon the reasoning advanced by
the court of appeals in the case before us, wherein it stated:
[Colby] had
thirty days from the trial court's order of August 9, 1993, dismissing the
first complaint to file the second complaint.
The thirty-day period of § 893.13(3) would apply because at the
time Colby filed the first complaint on February 26, 1993, there were fewer
than thirty days left until the expiration of the statute of limitations. The filing of the second complaint on August
10, 1993, is within the thirty-day period.
Colby, 192 Wis. 2d at 401 (footnote
omitted). The cornerstone for the court
of appeals' conclusion can be traced to an earlier decision of the court of
appeals in Fox, in which that court had occasion to construe Wis. Stat.
§ 893.80(1)(b), and concluded:
The provision
in section 893.80(1)(b), Stats., that "no action may be brought or
maintained" until either the claim is disallowed or the 120-day period has
expired merely makes an action premature unless one of those events has
occurred. It does not override the
clear language of sections 893.13(3) and 893.02, STATS., which
combine to toll the statute of limitations whenever an action is commenced-that
is, whenever there is the physical act of filing with the court a "summons
naming the defendant and the complaint," provided there is proper service
within 60 days.
Fox, 159 Wis. 2d at 586-87. Columbia County argues that the court of
appeals' decision in Fox failed to observe the precedent established by
this court in Maynard regarding the effect that the notice of claim
requirement has on the commencement of an action. In Maynard, this
court was asked to construe the meaning of then Wis. Stat. § 59.76(1)
(1927), the very language at issue before us, which read, in pertinent part as
follows:
Sec.
59.76 Claims against counties;
actions on; disallowance. (1) No action shall be brought or maintained
against a county upon any account, demand or cause of
action . . . unless such claim shall have been duly
presented to such board and they shall have failed to act upon the same within
the time fixed by law . . . .
Maynard, 224 Wis. at 227 (ellipses by the court). We determined that the plaintiff's attempt
to bring an action against the county without first complying with the
statutory requirements to bringing such action, necessitated a finding that the
action had not been truly commenced within the meaning of the statute. The court found it immaterial that a summons
and complaint had been properly served on the defendant county, remarking:
We see no
escape from the conclusion that this action was prematurely brought and cannot
be maintained. Under the provisions of
[Wis. Stat. § 59.76(1) and 59.76(1)(a)], when the instant action was begun
on December 26, 1935, there was no cause of action in existence in favor of the
plaintiff against Columbia County.
Furthermore, the statute prohibited the commencement of any action or
its maintenance after it was commenced without first filing a claim. Unless we ignore the plain letter of these
statutory provisions, the contention of the defendant county must be sustained.
Id.
The controlling language utilized in Maynard was thereafter cited
with approval by this court in Armes v. Kenosha County, 81 Wis. 2d
309, 260 N.W.2d 515 (1977), wherein we stated:
In Maynard
v. De Vries . . . the claimant failed to prove
compliance with the filing requirements of sec. 59.76 and 59.77, Stats. We held that "[t]he filing of
a . . . claim is under the statutes of this state a
condition precedent to the existence of a cause of action."
Id. at 313.[10]
Maynard
and its progeny clearly establish that a cause of action is not properly
commenced when a plaintiff prematurely files a summons and complaint, without
first complying with notice requirements such as those inscribed in Wis. Stat.
§ 893.80. Section 893.80
prohibited the commencement of the original action by Colby in this case, where
suit was filed only two days after the statutory claim was filed with Columbia
County, precluding the County from undertaking a thorough investigation of the
claim. We hold that in a case involving
§ 893.80, where a claim has not been properly filed, a court need not
reach the issue of whether Wis. Stat. § 893.13 tolls the running of the
statute of limitations, because the operation of § 893.13 applies only to
commenced actions, and under § 893.80, an action cannot be commenced if a
claim has not been properly filed.
Commencement of an action, where commencement is barred by statute,
cannot toll a statute of limitations.
The
decision of the court of appeals in Fox
which concluded that Wis. Stat. § 893.02 and Wis. Stat.
§ 893.13 overrides the notice provisions in Wis. Stat. § 893.80,
thereby tolling the statute of limitations whenever there is the physical act
of filing a summons and complaint with the court, directly conflicts with the
well-established precedent of this court.
A plain reading of § 893.80 dictates that no action may be
commenced until the claim has actually been disallowed or 120 days have passed
since its filing. Since an action has
not truly been commenced, we need not reach the point at which Wis. Stat.
§ 893.13, which requires a commencement of the action to trigger the
tolling, need be interpreted, as it is not applicable.
Moreover,
the court of appeals' decision in Schwetz v. Employers Ins. of Wausau, 126
Wis. 2d 32, 374 N.W.2d 241 (Ct. App. 1985), upon which the Fox court
relied, does not support its conclusion that Wis. Stat. § 893.13 operates
to toll the statute of limitations, despite the notice requirements of Wis.
Stat. § 893.80. In Schwetz,
the court of appeals concluded that the plaintiff's action against the school
district should be dismissed, noting:
The Schwetzes
did not properly commence their first action.
Under sec. 893.80(1)(b), Stats., the Schwetzes could not commence a suit
unless the school district actually disallowed the itemized relief statement or
120 days had passed since its filing . . . . Because the Schwetzes failed to wait the 120
days required before filing, the trial court correctly dismissed the first
action. As a result, the statute of
limitations was not tolled because, under the statute, no action was commenced.
Schwetz, 126 Wis. 2d at 34-5. Because the court of appeals in Fox
failed to follow the precedent established by this court in Maynard and
its progeny, we hold that the Fox decision is overruled.[11]
We
conclude that this holding should only be applied prospectively and therefore
affirm the decision of the court of appeals on different grounds. Generally, this court adheres to the
"Blackstonian Doctrine," which provides that a decision overruling or
repudiating an earlier decision operates retrospectively. Harmann v. Hadley, 128 Wis. 2d 371,
377, 382 N.W.2d 673 (1986). The court
has, however, acknowledged that inequities may occur when a court departs from
precedent and announces a new rule of law.
"This court has,
therefore, recognized exceptions to the `Blackstonian doctrine' and has used
the device of prospective overruling, sometimes dubbed `sunbursting,' to limit
the effect of a newly announced rule."
Id. at 377-78; see also Olson v. Augsberger, 18
Wis. 2d 197, 200, 118 N.W.2d 194 (1962).
This court's decision to apply a judicial holding prospectively is a
question of policy and involves balancing the equities peculiar to a particular
case or rule so as to mitigate hardships that may occur in the retroactive
application of new rules. Bell v.
County of Milwaukee, 134 Wis. 2d 25, 31, 396 N.W.2d 328 (1986). Sunbursting has been applied to developments
within the common law as well as changes in the way that courts interpret
statutes. See Fairchild, Limitation of New Judge-Made
Law to Prospective Effect Only: "Prospective Overruling" or
"Sunbursting," 51 MARQ. L. REV. 254
(1967-68) (passim).
Retroactive
operation has been denied where the purpose of the new ruling cannot be served
by retroactivity, and where retroactivity would tend to thrust an excessive
burden on the administration of justice.
Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571,
576, 157 N.W.2d 595 (1968). In tort
cases, this court is concerned that courts would have to relitigate cases
already disposed of by previous litigation or settlements. In the present case, we have concluded that
an action is not truly commenced under Wis. Stat. § 893.80 until the
notice and claim provision is satisfied, thereby precluding the applicability
of Wis. Stat. § 893.13 to a prematurely filed summons and complaint.
This
holding establishes a new principle of law which overrules past precedent
(i.e., Fox), upon which Colby relied.
In light of the number of tort claims aimed at the various governmental
subdivisions or agencies thereof which would be affected by our holding
regarding the statute of limitations, we have examined the inequity imposed by
retroactive application, and conclude that in order to avoid injustice or
hardship by a holding of retroactivity, that portion of our holding which
addresses the relationship between Wis. Stat. § 893.13 and Wis. Stat.
§ 893.80 will be applied prospectively.[12] As such, we find that Colby's action against
Columbia County should be permitted to proceed.
By
the Court.—The decision of the court of appeals is affirmed.
SUPREME COURT OF WISCONSIN
Case No.: 93-3348
Complete Title
of Case: Clinton J. Colby,
Plaintiff-Appellant,
v.
Columbia County, Wisconsin and Columbia
County
Highway Commissioner, Kurt Dey, or his
predecessor in interest,
Defendants-Respondents-Petitioners.
_________________________________________________
REVEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 192 Wis. 2d 397, 531 N.W.2d 404
(Ct. App. 1995)
PUBLISHED
Opinion Filed: June 28, 1996
Submitted on Briefs:
Oral Argument: January 30,
1996
Source of APPEAL
COURT: Circuit
COUNTY: Columbia
JUDGE: DANIEL W. KLOSSNER
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the defendants-respondents-petitioners
there were briefs by Bradley D. Armstrong, Paul Voelker and Axley
Brynelson, Madison and oral argument by Paul Voelker.
For the plaintiff-appellant there was a
brief by Eric A. Farnsworth and DeWitt Ross & Stevens, S.C.,
Madison and oral argument by Eric A. Farnsworth.
[1] All future statutory references are to the
1993-94 volume unless otherwise indicated.
Section 893.54 provides in relevant part:
893.54. Injury to the person. The following action shall be commenced
within 3 years or be barred:
(1) An action to
recover damages for injuries to the person.
[2] Section 893.13(2) and (3) provide in
relevant part:
893.13 Tolling of statutes of limitation. . . . (2) A law
limiting the time for commencement of an action is tolled by the commencement
of the action to enforce the cause of action to which the period of limitation
applies. The law limiting the time for
commencement of the action is tolled for the period from the commencement of
the action until the final disposition of the action.
(3) If a period of limitation is tolled under sub. (2)
by the commencement of an action and the time remaining after final disposition
in which an action may be commenced is less than 30 days, the period within
which the action may be commenced is extended 30 days from the date of final
disposition.
[3] See Maryland Cas. Co. v. Beleznay,
245 Wis. 390, 393, 14 N.W.2d 177 (1944) (recognizing that under Wisconsin law
the limitations of actions is a right as well as a remedy, extinguishing the
right on one side and creating a right on the other, which is as of high
dignity as regards judicial remedies as any other right).
[4] See Albright v. Albright, 70
Wis. 528, 36 N.W. 254 (1888) (holding that notice of the widow's election to
take the provision made for her by law instead of that made by her husband's
will must be filed within one year after the death of the husband; and such
time is not extended by a stay of proceedings during the pendency of an appeal
from an order refusing to admit the will to probate); Wescott v. Upham,
127 Wis. 590, 107 N.W. 2 (1906) (concluding that statute providing for action
against sureties on a bond providing that if the person entitled to bring an
action shall be under any legal disability to sue, the want of legal capacity
to sue refers to some characteristic of the person disqualifying him in some
degree from acting freely for the protection of his rights, not to an
impediment to the maintenance of the particular cause of action).
[5] See Brehm v. City of New York,
10 N.E. 158 (N.Y., 1887); Amex Asphalt Co. v. New York, 33 N.Y.S.2d 182
(N.Y.A.D. 2 Dept., 1942), aff'd, 43 N.E.2d 97; D & D Chemist
Shops v. New York, 47 N.Y.S.2d 163 (N.Y. Sup., 1944), rev'd on other
grounds, 55 N.Y.S.2d 114 (1945); Woodcrest Constr. Co. v. New York,
57 N.Y.S.2d 498 (N.Y. Sup., 1945), aff'd, 75 N.Y.S.2d 299 (N.Y.A.D. 1
Dept., 1947); Unadilla v. Felder, 89 S.E. 423 (Ga., 1916); Rome v.
Rigdon, 16 S.E.2d 902 (Ga., 1941), aff'd, 16 S.E.2d 902 (Ga., 1941);
Atlanta v. Truitt, 190 S.E. 369 (Ga. App., 1937).
[6] See also De Jose v. Town of
Hempstead, 208 N.Y.S.2d 6 (N.Y.Sup., 1960) (finding that where commencement
of action against municipality is stayed by statute for period during which a
prescribed procedure is to be carried out, the period of limitations within
which action may be brought is extended for full period of statutory stay); Berman
v. City of Syracuse, 179 N.Y.S.2d 142 (N.Y.Sup., 1958) (holding that when a
statute provides a mandatory waiting period for the commencement of an action
against a municipality, the extent of the waiting period must be added to the
statutory limitation of one year to obtain the time within which such action
may be brought); Sullivan v. City of Watervliet, 136 N.Y.S.2d 411 (N.Y.A.D.
3 Dept., 1954) (noting that charter provision providing that action against
city for personal injuries must be begun within one year of alleged injury, but
staying commencement of any action until three months after presentation of
claim to council, three months' stay of action should be added to the
limitation of one year to obtain time within which action may be brought, thus
giving one year and three month limitation on tort claims against city); Feinon
v. City of Long Beach, 137 N.Y.S.2d 98 (N.Y.Sup., 1954) (same); Mulligan
v. Westchester County, 71 N.Y.S.2d 153 (N.Y.A.D. 2 Dept., 1947) (concluding
that under law providing that no action for damages shall be commenced against
a county until expiration of three months after service of notice of claim,
three month period was not part of time limited for the commencement of the
action, since commencement was stayed by statutory prohibition).
[7] N.Y. GML Law § 50-i (McKinney 1996) provides
as follows:
1. No action or special proceeding shall be
prosecuted or maintained against a city, county, town, village, fire district
or school district for personal injury, wrongful death or damage to real or
personal property alleged to have been sustained . . .
unless, (a) a notice of claim shall have been made and served upon
the . . . in compliance with section fifty-e of this
chapter, . . . (c) the action or special proceeding shall
be commenced within one year and ninety days after the happening of the event
upon which the claim is based; except that wrongful death actions shall be
commenced within two years after the happening of the death.
2. This section shall be applicable
notwithstanding any inconsistent provisions of law, general, special or local,
or any limitation contained in the provisions of any city charter.
3. Nothing
contained herein or in section fifty-h of this chapter shall operate to extend
the period limited by subdivision one of this section for the commencement of
an action or special proceeding.
(Emphasis added).
[8] Prior to the adoption of GML 50-i, the
period of limitations for tort actions against municipalities was 1 year, but
this was subject to inconsistent tolls caused by diverse waiting periods. The legislature sought to achieve uniformity
by eliminating any tolls for waiting periods and compensating for this by
lengthening the statute of limitations to 1 year and 90 days. See Note of Commission on
Legislative Purpose, Laws of 1959, ch. 788 appendix; see also Joiner
v. City of New York, 274 N.Y.S.2d 362 (N.Y.A.D. 2 Dept., 1966).
[9] See Armes v. Kenosha County,
81 Wis. 2d 309, 319-20, 260 N.W.2d 515 (1977) (observing that statutory
limitations on actions are designed to ensure prompt litigation of valid claims
and to protect a defendant from fraudulent or stale claims brought after
memories have faded or evidence has been lost).
[10] See also Yotvat v. Roth, 95
Wis. 2d 357, 290 N.W.2d 524 (Ct. App. 1980), which construed then Wis.
Stat. § 895.45(1), the Claims Against State Employees Statute, holding:
Section
895.45(1), Stats., provides that no action may be "brought" against a
state officer, employee or agent unless the prescribed notice is
given . . . . Armes
v. Kenosha County is controlling . . . . Armes applied Maynard v. De Vries,
224 Wis. 224, 228, 272 N.W. 27 (1937), which held that compliance with sec.
59.76, Stats. 1971, "is under the statutes of this state a condition
precedent to the existence of a cause of action."
Id. at 360-61
(citations omitted).
[11] We similarly overrule that portion of Schwetz,
126 Wis. 2d at 37 n.4, which is in
conflict with the remainder of our holding in the present case.
[12] As one commentator has noted:
Prospective
limitation . . . allows the courts freedom to make needed
changes unrestrained by concerns about the effect of those changes on past
events. While the cornerstone of the
technique is the protection of justified reliance, its use also promotes the
stability, certainty and finality of judicial decisionmaking. Further, it is argued, in insulating
precedent from changes in personnel on the state or federal high courts,
prospectivity enhances public confidence in the fairness and objectivity of the
judiciary.
See
Moody, Retroactive Application of Law-Changing Decisions in Michigan, 28
WAYNE L. REV. 439, 443 (1982) (footnotes omitted).