893.43 Annotation
For actions seeking coverage under an underinsured motorist policy, the statute of limitations begins to run from the date of loss, which is the date on which a final resolution is reached in the underlying claim against the tortfeasor, be it through denial of that claim, settlement, judgment, execution of releases, or other form of resolution, whichever is the latest. Yocherer v. Farmers Insurance Exchange,
2002 WI 41,
252 Wis. 2d 114,
643 N.W.2d 457,
00-0944.
893.43 Annotation
The label of the documents here—“access easement agreement"—and the fact that each was signed by both parties did not transform the grants of easement into contracts subject to contract law. The plaintiffs alleged that a driveway could not be built on the easements described in the agreements because of a wetland delineation and sought a modification of the easements. This claim for relief was an action to enforce the recorded easements, albeit a modified version, and was therefore governed by s. 893.33 (6), not the contract statute, this section. Mnuk v. Harmony Homes, Inc.,
2010 WI App 102,
329 Wis. 2d 182,
790 N.W.2d 514,
09-1178.
893.43 Annotation
The running of the six-year statute of limitations under this section [now sub. (1)] that applies to enforcement of a note does not prevent timely foreclosure of the mortgage that secures the note. Bank of New York Mellon v. Klomsten,
2018 WI App 25,
381 Wis. 2d 218,
911 N.W.2d 364,
17-0405.
893.43 Annotation
The statute of limitations for a subrogated claim is the same as the statute of limitations that would apply to the claim if it had not been subrogated. In this case, the plaintiff insurance company was subrogated to the insured's contract claim that the defendant insurance company breached its duty to defend the insured. Because subrogation does not change the identity of the cause of action, the plaintiff's claim was also for breach of contract. Claims for breach of contract have a six-year statute of limitations under sub. (1). Steadfast Insurance Co. v. Greenwich Insurance Co.,
2019 WI 6,
385 Wis. 2d 213,
922 N.W.2d 71,
16-1631.
893.43 Annotation
Rescission is not an “action upon the contract," as that phrase is used in this section. CMFG Life Insurance Co. v. RBS Securities, Inc.,
799 F.3d 729 (2015).
893.43 Annotation
An unconscionability of contract claim is governed by this section. Dairyland Power Coop. v. Amax Inc.,
700 F. Supp. 979 (1986).
893.44
893.44
Compensation for personal service. 893.44(1)(1)
Any action to recover unpaid salary, wages or other compensation for personal services, except actions to recover fees for professional services and except as provided in sub.
(2), shall be commenced within 2 years after the cause of action accrues or be barred.
893.44(2)
(2) An action to recover wages under s.
109.09 shall be commenced within 2 years after the claim is filed with the department of workforce development or be barred.
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) [now this section]. Younger v. Rosenow Paper & Supply Co.,
51 Wis. 2d 619,
188 N.W.2d 507 (1971).
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. If the services are so classified depends upon the facts of the particular employment. Lorenz v. Dreske,
62 Wis. 2d 273,
214 N.W.2d 753 (1974).
893.44 Annotation
Section 893.21 (5) [now this section] does not apply unless services are actually rendered. Yanta v. Montgomery Ward & Co.,
66 Wis. 2d 53,
224 N.W.2d 389 (1974).
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) [now s. 893.43] applies rather than s. 893.21 (5) [now this section]. Rupp v. O'Connor,
81 Wis. 2d 436,
261 N.W.2d 815 (1978).
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 (1973).
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 personal representatives of any contractor, no such joint contractor or joint personal representative 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;
2001 a. 102.
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 personal representatives 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;
2001 a. 102.
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 endorsement 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 personal representatives 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;
2001 a. 102.
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]
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]
893.51 Annotation
A wrongful detention claim is separate from a conversion claim. A wrongful detention claim may arise against a possessor of previously converted or wrongfully taken property. Under those facts, a wrongful detention claim is available and, for purposes of sub. (1) and s. 893.35, accrues at the time the property is obtained. No demand is necessary. Mueller v. TL90108, LLC,
2020 WI 7,
390 Wis. 2d 34,
938 N.W.2d 566,
17-1962.
893.51 Annotation
Sub. (1) and s. 893.35 are statutes of repose, not statutes of limitation. A statute of repose provides that a cause of action must be commenced within a specified amount of time after the defendant's action that allegedly led to injury, regardless of whether the plaintiff has discovered the injury or wrongdoing. With regard to a wrongful detention claim, the statutes focus on when the wrongful detention begins, not when the property owner discovers or knows of the detention. Mueller v. TL90108, LLC,
2020 WI 7,
390 Wis. 2d 34,
938 N.W.2d 566,
17-1962.
893.52
893.52
Action for damages for injury to property. 893.52(1)(1)
Except as provided in sub.
(2) and in any other case where a different period is expressly prescribed, 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.
893.52(2)
(2) An action, not arising on contract, to recover damages for an injury to real or personal property that are caused or sustained by, or that arise from, an accident involving a motor vehicle shall be commenced within 3 years after the cause of action accrues or be barred.
893.52 History
History: 1979 c. 323;
2015 a. 133.
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) [now this section] 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 (1977).
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 Casualty 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),
95-2259.
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),
95-3193.
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),
96-2396.
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),
97-1740.
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),
98-1806.
893.52 Annotation
The accrual of a stray voltage claim is governed by the discovery rule. When the defendant utility went to the farm three times and found no problem, the plaintiff could not be faulted for accepting the results of the utility's testing and continuing to search for other possible sources of the problem. Allen v. PSC,
2005 WI App 40,
279 Wis. 2d 488,
694 N.W.2d 420,
03-2690.
893.52 Annotation
Section 893.57, and not this section, applies to a claim alleging intentional trespass. Because the existence of damages for injury to real property is not necessary to maintain a claim for intentional trespass, sub. (1) cannot govern an intentional trespass claim. Munger v. Seehafer,
2016 WI App 89,
372 Wis. 2d 749,
890 N.W.2d 22,
14-2594.
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 3 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;
2017 a. 235.
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 actions 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 509,
574 N.W.2d 656 (1998),
96-2973.
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),
98-1806.
893.53 Annotation
Even though a plaintiff might plead and testify to having suffered emotional distress on account of a lawyer's malpractice, that fact does not convert the claim into one seeking redress for injuries to the person. The underlying injuries in a legal malpractice claim are to rights and interests of a plaintiff that go beyond, or at least are different from, injuries to his or her person under s. 893.54. Hicks v. Nunnery,
2002 WI App 87,
253 Wis. 2d 721,
643 N.W.2d 809,
01-0751.
893.53 Annotation
While the court borrows the state's limitations period for an action under 42 USC 1983, federal law determines the action's accrual date. Because habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, any section 1983 action challenging the fact or length of confinement does not accrue until the underlying confinement has been invalidated through a direct appeal, post-conviction relief, or some other means. Huber v. Anderson,
909 F.3d 201 (2018).
893.53 Annotation
This section applies to actions under Title II of the federal Americans With Disabilities Act. Doe v. Milwaukee County,
871 F. Supp. 1072 (1995).
893.53 Cross-reference
Cross-reference: See also the notes to s.
893.54 for additional treatments of 42 USC 1983.
893.54
893.54
Injury to the person. 893.54(1m)(1m)
Except as provided in sub.
(2m), the following actions shall be commenced within 3 years or be barred:
893.54(1m)(a)
(a) An action to recover damages for injuries to the person, including an action to recover damages for injuries to the person caused or sustained by or arising from an accident involving a motor vehicle.
893.54(1m)(b)
(b) An action brought to recover damages for death caused by the wrongful act, neglect or default of another.
893.54(2m)
(2m) An action brought to recover damages for death caused by the wrongful act, neglect, or default of another and arising from an accident involving a motor vehicle shall be commenced within 2 years after the cause of action accrues or be barred.
893.54 History
History: 1979 c. 323;
2015 a. 133.
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 this section. Korth v. American Family Insurance 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 Insurance of Wausau,
126 Wis. 2d 32,
374 N.W.2d 241 (Ct. App. 1985).
893.54 Annotation
When 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
When 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
Claimed ignorance of, and a blatant failure to follow, applicable regulations cannot be construed as reasonable diligence in discovering an injury when following the rule would have resulted in earlier discovery. Stroh Die Casting v. Monsanto Co.,
177 Wis. 2d 91,
502 N.W.2d 132 (Ct. App. 1993).