1999 Chapter 893

893.44 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.21 (5) renumbered for more logical placement in restructured ch. 893. Actions to collect fees for professional services are brought under s. 893.43. [Bill 326-A]

893.44 Annotation A stock-purchase plan as a reward for increased profits is not subject to s. 893.21 (5), 1969 stats. Younger v. Rosenow Paper & Supply Co. 51 Wis. 2d 619, 188 N.W.2d 507.

893.44 Annotation Professional services by a physician or attorney, although not customarily performed in the profession, may be classified as professional if requested by reason of the professional's expertise and training if the professional then utilizes that knowledge and training. Whether the services are so classified depends upon the entire factual context of the particular employment. Lorenz v. Dreske, 62 Wis. 2d 273, 214 N.W.2d 753.

893.44 Annotation Section 893.21 (5), 1969 stats. does not apply unless services are actually rendered. Yanta v. Montgomery Ward & Co., Inc. 66 Wis. 2d 53, 224 N.W.2d 389.

893.44 Annotation If the object of a disputed contract is the end product or fruit of human labor rather than the labor per se, s. 893.19 (3), 1973 stats. [now 893.43], applies rather than s. 893.21 (5), 1973 stats [now 893.44]. Rupp v. O'Connor, 81 Wis. 2d 436, 261 N.W.2d 815.

893.44 Annotation An unjust enrichment claim accrues when a cohabitational relationship terminates. The court does not determine which statute of limitations, if any, applies. Watts (Bischoff) v. Watts, 152 Wis. 2d 370, 448 N.W.2d 292 (Ct. App. 1989).

893.44 Annotation This section applies only to actions for wages already earned. Lovett v. Mt. Senario College, Inc. 154 Wis. 2d 831, 454 N.W.2d 356 (Ct. App. 1990).

893.44 Annotation This section does not apply to actions for the recovery of sales commissions. Erdman v. Jovoco, Inc. 181 Wis. 2d 736, 512 N.W.2d 487 (1994).

893.44 Annotation The distinguishing feature of personal services under this section is whether the human labor itself is sought and is the object of the compensation or whether the end-product of the service is purchased. Paulson v. Shapiro, 490 F.2d 1.

893.45 893.45  Acknowledgment or new promise. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the cause out of the operation of this chapter, unless the same be contained in some writing signed by the party to be charged thereby.

893.45 History History: 1979 c. 323.

893.45 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.42 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.46 893.46  Acknowledgment, who not bound by. If there are 2 or more joint contractors or joint administrators of any contractor no such joint contractor, executor or administrator shall lose the benefit of this chapter so as to be chargeable by reason only of any acknowledgment or promise made by any other of them.

893.46 History History: 1979 c. 323.

893.46 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.43 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.47 893.47  Actions against parties jointly liable. In actions commenced against 2 or more joint contractors or joint executors or administrators of any contractors, if it shall appear, on the trial or otherwise, that the plaintiff is barred by this chapter as to one or more of the defendants, but is entitled to recover against any other or others of them, by virtue of a new acknowledgment or promise, or otherwise, judgment shall be given for the plaintiff as to any of the defendants against whom the plaintiff is entitled to recover and for the other defendant or defendants against the plaintiff.

893.47 History History: 1979 c. 323.

893.47 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.44 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.48 893.48  Payment, effect of, not altered. Nothing contained in ss. 893.44 to 893.47 shall alter, take away or lessen the effect of a payment of any principal or interest made by any person, but no indorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom the payment is made or purports to be made, is sufficient proof of the payment so as to take the case out of the operation of this chapter.

893.48 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1979 c. 323.

893.48 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.46 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.49 893.49  Payment by one not to affect others. If there are 2 or more joint contractors or joint executors or administrators of any contractor no one of them shall lose the benefit of this chapter, so as to be chargeable, by reason only of any payment made by any other of them.

893.49 History History: 1979 c. 323.

893.49 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.47 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.50 893.50  Other actions. All personal actions on any contract not limited by this chapter or any other law of this state shall be brought within 10 years after the accruing of the cause of action.

893.50 History History: 1979 c. 323.

893.50 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.26 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

subch. V of ch. 893 SUBCHAPTER V

TORT ACTIONS

893.51 893.51  Action for wrongful taking of personal property.

893.51(1) (1) Except as provided in sub. (2), an action to recover damages for the wrongful taking, conversion or detention of personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins.

893.51(2) (2) An action under s. 134.90 shall be commenced within 3 years after the misappropriation of a trade secret is discovered or should have been discovered by the exercise of reasonable diligence. A continuing misappropriation constitutes a single claim.

893.51 History History: 1979 c. 323; 1985 a. 236.

893.51 Note Judicial Council Committee's Note, 1979: This section is based on previous s. 893.19 (6), without change in substance, but with some expansion of language to make clear that accrual of the cause of action is not delayed until the person bringing the action learns of the wrongful taking or detention. An action for recovery of the personal property is subject to s. 893.35 which is also based on previous s. 893.19 (6). [Bill 326-A]

893.52 893.52  Action for damages for injury to property. An action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred, except in the case where a different period is expressly prescribed.

893.52 History History: 1979 c. 323.

893.52 Note Judicial Council Committee's Note, 1979: This section is based upon previous s. 893.19 (5) which is split into 2 separate provisions. See s. 893.53 for the other provision. [Bill 326-A]

893.52 Annotation Section 893.19 (5), 1973 stats., applies to actions based on negligent construction of dwellings. The statute begins to run when the plaintiff suffers injury. Abramowski v. Wm. Kilps Sons Realty, Inc. 80 Wis. 2d 468, 259 N.W.2d 306.

893.52 Annotation The limitation period begins when evidence of resultant injury is sufficiently significant to alert the injured party to the possibility of a defect. Tallmadge v. Skyline Construction, Inc. 86 Wis. 2d 356, 272 N.W.2d 404 (Ct. App. 1978).

893.52 Annotation In actions for legal malpractice, the date of injury rather than the date of the negligent act commences the period of limitations. Auric v. Continental Cas. Co. 111 Wis. 2d 507, 331 N.W.2d 325 (1983).

893.52 Annotation A cause of action accrues when the negligent act occurs, or the last in a continuum of negligent acts occur and the plaintiff has a basis for objectively concluding that the defendant caused injuries and damages. Koplin v. Pioneer Power & Light, 162 Wis. 2d 1, 469 N.W.2d 595 (1991).

893.52 Annotation This section permits parties to contract for lesser limitations periods and to specify the day the period begins to run, in which case the "discovery rule" does not apply. Keiting v. Skauge, 198 Wis. 2d 887, 543 N.W.2d 565 (Ct. App. 1995).

893.52 Annotation A claim for asbestos property damage accrues when the plaintiff is informed of the presence of asbestos and that precautions are necessary. Banc One Building Management Corp. v. W.R. Grace Co. 210 Wis. 2d 62, 565 N.W.2d 154 (Ct. App. 1997).

893.52 Annotation In the case of a claim for faulty workmanship, a builder's representation can result in a justifiable delay in discovering the cause of an injury. Whether the plaintiff's course of conduct is reasonable is a question of fact. Williams v. Kaerek Builders, Inc. 212 Wis. 2d 150, 568 N.W.2d 313 (Ct. App. 1997).

893.52 Annotation A plaintiff can rely on the discovery rule only if he or she has exercised reasonable diligence. Jacobs v. Nor-Lake, 217 Wis. 2d 625, 579 N.W.2d 254 (Ct. App. 1998).

893.52 Annotation A party's deficient performance of a contract does not give rise to a tort claim. There must be a duty independent of the contract for a cause of action in tort. Atkinson v. Everbrite, Inc. 224 Wis. 2d 724, 592 N.W.2d 299 (Ct. App. 1999).

893.53 893.53  Action for injury to character or other rights. An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred.

893.53 History History: 1979 c. 323.

893.53 Note Judicial Council Committee's Note, 1979: This section is based upon previous s. 893.19 (5) which is split into 2 provisions. See s. 893.52 for the other provision. [Bill 326]

893.53 Annotation This section applies to legal malpractice actions that sound in tort. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

893.53 Annotation The application of the discovery rule to legal malpractice action is discussed. Hennekens v. Hoerl, 160 Wis. 2d 144, 465 N.W.2d 812 (1991).

893.53 Annotation This section and the discovery rule apply to engineering malpractice actions. Milwaukee Partners v. Collins Engineers, 169 Wis. 2d 355, 485 N.W.2d 274 (Ct. App. 1992).

893.53 Annotation This section is the state's general and residual personal injury statute of limitations and is applicable to 42 USC 1983 actions. Hemberger v. Bitzer, 216 Wis. 2d 508, 574 N.W.2d 656 (1998).

893.53 Annotation A party's deficient performance of a contract does not give rise to a tort claim. There must be a duty independent of the contract for a cause of action in tort. Atkinson v. Everbrite, Inc. 224 Wis. 2d 724, 592 N.W.2d 299 (Ct. App. 1999).

893.53 Annotation The residual or general personal injury statute of limitations applies to 42 USC 1983 actions. Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594 (1989).

893.53 Annotation This section applies to actions under Title II of the Americans With Disabilities Act. Doe v. Milwaukee County, 871 F. Supp. 1072 (1995).

893.53 Cross-reference Cross Reference: See also the notes to 893.54 for additional treatments of 42 USC 1983.

893.54 893.54  Injury to the person. The following actions shall be commenced within 3 years or be barred:

893.54(1) (1) An action to recover damages for injuries to the person.

893.54(2) (2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another.

893.54 History History: 1979 c. 323.

893.54 Note Judicial Council Committee's Note, 1979: This section is derived from previous s. 893.205 but was amended to eliminate language now covered by newly created s. 893.07. (See note to s. 893.07). [Bill 326-A]

893.54 Annotation Because the parents' claim arising from an injury to their minor child was filed along with the child's claim within the time period for the child's claim under s. 893.18 the parents' claim was not barred by s. 893.54. Korth v. American Family Ins. Co. 115 Wis. 2d 326, 340 N.W.2d 494 (1983).

893.54 Annotation This section and s. 893.80 both apply to personal injury actions against governmental entities. Schwetz v. Employers Ins. of Wausau, 126 Wis. 2d 32, 374 N.W.2d 241 (Ct. App. 1985).

893.54 Annotation Where a plaintiff's early subjective lay person's belief that a furnace caused the injury was contradicted by examining physicians, the cause of action against the furnace company did not accrue until the plaintiff's suspicion was confirmed by later medical diagnosis. Borello v. U.S. Oil Co. 130 Wis. 2d 397, 388 N.W.2d 140 (1986).

893.54 Annotation While adoptive parents were aware of the possibility that their child might develop a disease in the future, a cause of action did not accrue until the child was diagnosed as having the disease. Meracle v. Children's Service Society, 149 Wis. 2d 19, 437 N.W.2d 532 (1989).

893.54 Annotation Where a doctor initially diagnosed a defective prosthesis, but advised surgery as the only way to determine what exactly was wrong, the plaintiff's cause of action against the prosthesis manufacturer accrued when the diagnosis was confirmed by surgery. S.J.D. v. Mentor Corp. 159 Wis. 2d 261, 463 N.W.2d 873 (Ct. App. 1990).

893.54 Annotation A brain damaged accident victim's cause of action accrued when the victim discovered, or when a person of the same degree of mental and physical handicap under the same or similar circumstances should have discovered, the injury, its cause and nature and the defendants' identities. Carlson v. Pepin County, 167 Wis. 2d 345, 481 N.W.2d 498 (Ct. App. 1992).

893.54 Annotation The discovery rule does not allow a plaintiff to delay the statute of limitations until the extent of the injury is known, but provides that the statute begins to run when the plaintiff has sufficient evidence that a wrong has been committed by an identified person. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 303, 533 N.W.2d 780 (1995).

893.54 Annotation A claim of repressed memory does not indefinitely toll the statute of limitations. A claim of repressed memory of past sexual assault does not delay the accrual of a cause of action regardless of the victim's minority or the position of trust occupied by the alleged perpetrator. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997).

893.54 Annotation Parents' claims for injury resulting from the sexual assault of their child accrue when the child's claims accrue, regardless of when the parents learn of their claims. Joseph W. v. Catholic Diocese of Madison, 212 Wis. 2d 925, 569 N.W.2d 795 (Ct. App. 1997).

893.54 Annotation Section 893.53 is the state's general and residual personal injury statute of limitations and is applicable to 42 USC 1983 actions. Hemberger v. Bitzer, 216 Wis. 2d 508, 574 N.W.2d 656 (1998).

893.54 Annotation The diagnosis of a non-malignant asbestos-related lung pathology does not trigger the statute of limitations with respect to a later-diagnosed, distinct malignant asbestos-related condition. Because the malignancy could not have been predicted when an earlier action relating to the non-malignant condition was dismissed on the merits, the doctrine of claims preclusion was not applied to bar the plaintiff's action. Sopha v. Owens-Corning Fiberglass Corporation, 230 Wis. 2d 212, 601 N.W.2d 627 (1999).

893.54 Annotation Federal civil rights actions under 42 USC 1983 are best characterized as personal injury actions. Wilson v. Garcia, 471 U.S. 261 (1985).

893.54 Annotation The residual or general personal injury statute of limitations applies to 42 USC 1983 actions. Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594 (1989).

893.54 Annotation See also notes to 893.53 for additional treatments of 42 USC 1983.

893.55 893.55  Medical malpractice; limitation of actions; limitation of damages; itemization of damages.

893.55(1) (1) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

893.55(1)(a) (a) Three years from the date of the injury, or

893.55(1)(b) (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

893.55(2) (2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1), whichever is later.

893.55(3) (3) When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient's body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by sub. (1), whichever is later.

893.55(4) (4) 

893.55(4)(a) (a) In this subsection, "noneconomic damages" means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.

893.55(4)(b) (b) The total noneconomic damages recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under par. (d) for each occurrence on or after May 25, 1995, from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the patients compensation fund.

893.55(4)(c) (c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.

893.55(4)(d) (d) The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.

893.55(4)(e) (e) Economic damages recovered under ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall be determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.

893.55(4)(f) (f) Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).