1999 Chapter 893

893.94 Organized crime control; civil remedies.

893.95 Unclaimed property; civil remedies.

893.96 Family leave and medical leave; civil remedies.

893.97 Business closing notification.

893.98 Cessation of health care benefits notification.

Ch. 893 Note NOTE: See the note at the end of this chapter containing indexes to statutes outside this chapter that impose time restrictions on asserting a claim or cause of action and statutes outside this chapter which govern claims against governmental entities.

subch. I of ch. 893 SUBCHAPTER I

COMMENCEMENT, COMPUTATION, ACTION IN NON-WISCONSIN FORUM AND MISCELLANEOUS PROVISIONS

893.01 893.01  Civil actions; objection as to time of commencing. Civil actions may be commenced only within the periods prescribed in this chapter, except when, in special cases, a different limitation is provided by statute. An objection that the action was not commenced within the time limited may only be taken by answer or motion to dismiss under s. 802.06 (2) in proper cases.

893.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 770 (1975); 1979 c. 323.

893.01 Note Judicial Council Committee's Note, 1979: This section remains from previous ch. 893 and is revised only for purposes of textual clarity. [Bill 326-A]

893.01 Annotation Estoppel can be invoked to preclude a defense based on a statute of limitations when a defendant has been guilty of fraudulent or inequitable conduct. The conduct need not constitute actual fraud, but may be equivalent to a representation upon which the plaintiff may have relied to his disadvantage by not commencing his action within the statutory period, but must have occurred before the expiration of the limitation period with no unreasonable delay by the aggrieved party after the inducement therefor has ceased to operate. State ex rel. Susedik v. Knutson, 52 Wis. 2d 593, 191 N.W.2d 23.

893.01 Annotation A court has no authority to enlarge the time in which to file a complaint. Pulchinski v. Strnad, 88 Wis. 2d 423, 276 N.W.2d 781 (1979).

893.01 Annotation When a limitation period would otherwise expire on a legal holiday, s. 990.001 (4) (b) permits the commencement of an action on the next secular day. Cuisinier v. Sattler, 88 Wis. 2d 654, 277 N.W.2d 776 (1979).

893.01 Annotation The retroactivity of statutes of limitations is discussed. Betthauser v. Medical Protective Co. 172 Wis. 2d 141, 493 N.W.2d 40 (1992).

893.01 Annotation A circuit court may use its equitable powers to set aside a statute of imitations if certain enumerated circumstances are present. Williams v. Kaerek Builders, Inc. 212 Wis. 2d 150, 568 N.W.2d 313 (Ct. App. 1997).

893.01 Annotation A defendant was estopped from pleading the statute of limitations by fraudulent conduct that prevented the plaintiff from filing a timely suit. Bell v. City of Milwaukee, 746 F.2d 1205 (1984).

893.02 893.02  Action, when commenced. An action is commenced, within the meaning of any provision of law which limits the time for the commencement of an action, as to each defendant, when the summons naming the defendant and the complaint are filed with the court, but no action shall be deemed commenced as to any defendant upon whom service of authenticated copies of the summons and complaint has not been made within 90 days after filing.

893.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 770 (1975); 1975 c. 218; 1979 c. 323; 1997 a. 187.

893.02 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.39 of the statutes renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.02 Annotation In a products liability action, a new cause of action for punitive damages brought after the statute of limitations expired related back to the date of filing the original pleading. Wussow v. Commercial Mechanisms, Inc. 97 Wis. 2d 136, 293 N.W.2d 897 (1980).

893.02 Annotation An action against an unnamed defendant under s. 807.12 that was filed on the last day of a limitation period, in which amended process naming the defendant was served within 60 days after filing, was not time barred. The relation back requirements of s. 802.09 (3) were inapplicable. Lak v. Richardson-Merrell, Inc. 100 Wis. 2d 641, 302 N.W.2d 483 (1981).

893.02 Annotation Service of process did not commence an action where the plaintiff failed to file the summons and complaint. The defendant's answer did not waive the statute of limitations defense or estop the defendant from raising it after the limitation period expired. Hester v. Williams, 117 Wis. 2d 634, 345 N.W.2d 426 (1984).

893.02 Annotation A fictitiously designated defendant's right to extinction of an action doesn't effectively vest until 60 days after the statute of limitations runs. Lavine v. Hartford Acc. & Indemnity, 140 Wis. 2d 434, 410 N.W.2d 623 (Ct. App. 1987).

893.03 893.03  Presenting claims. The presentation of any claim, in cases where by law such presentment is required, to the circuit court shall be deemed the commencement of an action within the meaning of any law limiting the time for the commencement of an action thereon.

893.03 History History: 1977 c. 449 s. 497; 1979 c. 323.

893.03 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.41 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.03 Annotation A statute of limitations is not tolled by filing an action in a court completely lacking jurisdiction and later refiling in the proper court after the statute has run. Schafer v. Wegner, 78 Wis. 2d 127, 254 N.W.2d 193.

893.04 893.04  Computation of period within which action may be commenced. Unless otherwise specifically prescribed by law, a period of limitation within which an action may be commenced is computed from the time that the cause of action accrues until the action is commenced.

893.04 History History: 1979 c. 323.

893.04 Note Judicial Council Committee's Note, 1979: Previous section 893.48 is repealed and sections 893.04 and 893.14 created for the purpose of clarity. See Denzer v. Rouse, 48 Wis. 2d 528, 180 N.W. 2d 521 (1970) for a discussion of when a cause of action accrues, citing Holifield v. Setco Industries, Inc. 42 Wis. 2d 750, 168 N.W. 2d 177 (1969). [Bill 326-A]

893.04 Annotation In attorney malpractice actions as in medical malpractice cases where the date of the negligence and the date of injury are the same, the statute of limitations runs from that date, for that is the time when the cause of action accrues. Denzer v. Rouse, 48 Wis. 2d 528, 180 N.W.2d 521.

893.04 Annotation The loss of the right to a patent is the loss of the right to exclude others and, therefore, the injury occurred on that date the right to the patent was lost. Boehm v. Wheeler, 65 Wis. 2d 668, 223 N.W.2d 536.

893.04 Annotation Because s. 67.11 requires moneys in a sinking fund remain inviolate until the bonds are retired, a cause of action regarding the fund could only accrue at retirement. Joint School Dist. No. 1 v. City of Chilton, 78 Wis. 2d 52, 253 N.W.2d 879.

893.04 Annotation A tort claim accrues when the injury is discovered or reasonably should have been discovered. The court adopts this "discovery rule" for all tort actions other than those already governed by a statutory discovery rule. Hansen v. A. H. Robins, Inc. 113 Wis. 2d 550, 335 N.W.2d 578 (1983).

893.04 Annotation Where the 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).

893.04 Annotation The day upon which a cause of action accrues is not included in computing the period of limitation. Pufahl v. Williams, 179 Wis. 2d 104, 506 N.W.2d 747 (1993).

893.04 Annotation The discovery rule applies to statutes of limitations that limit the time to sue from the time when the action "accrues", being the time of discovery. The discovery rule does not apply to a statute of repose, a statute that specifies the time of accrual and limits the time suit can be brought from that specified date. Castellani v. Bailey, 218 Wis. 2d 245, 578 N.W.2d 166 (1998).

893.04 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).

893.04 Annotation The discovery rule does not extend to causes of action not sounding in tort. State v. Chrysler Outboard Corp. 219 Wis. 2d 130, 580 N.W.2d 203 (1998).

893.04 Annotation Computing time in tort statutes of limitation. Ghiardi, 64 MLR 575 (1981).

893.04 Annotation Computing Time. Ghiardi. Wis. Law. March 1993.

893.05 893.05  Relation of statute of limitations to right and remedy. When the period within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished as well as the remedy.

893.05 History History: 1979 c. 323.

893.05 Note Judicial Council Committee's Note, 1979: This new section is a codification of Wisconsin case law. See Maryland Casualty Company v. Beleznay, 245 Wis. 390, 14 N.W. 2d 177 (1944), in which it is stated at page 393: "In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation 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 and it is a right which enjoys constitutional protection". [Bill 326-A]

893.07 893.07  Application of foreign statutes of limitation.

893.07(1) (1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.

893.07(2) (2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.

893.07 History History: 1979 c. 323.

893.07 Note Judicial Council Committee's Note, 1979: Sub. (1) applies the provision of s. 893.05 that the running of a statute of limitations extinguishes the right as well as the remedy to a foreign cause of action on which an action is attempted to be brought in Wisconsin in a situation where the foreign period has expired. Sub. (1) changes the law of prior s. 893.205 (1), which provided that a resident of Wisconsin could sue in this state on a foreign cause of action to recover damages for injury to the person even if the foreign period of limitation had expired.

893.07 Annotation Sub. (2) applies the Wisconsin statute of limitations to a foreign cause of action if the Wisconsin period is shorter than the foreign period and the Wisconsin period has run. [Bill 326-A]

893.07 Annotation The borrowing statute was properly applied to an injury received without this state. A conflict of laws analysis was not appropriate. Guertin v. Harbour Assur. Co. 141 Wis. 2d 622, 415 N.W.2d 831 (1987).

893.07 Annotation Section 893.16 (1) is effective to toll the running of the statute of limitations, even when under s.893.07 the plaintiff would be barred from bringing suit under applicable foreign law. Scott v. First State Ins. Co. 155 Wis. 2d 608, 456 N.W.2d 312 (1990).

893.07 Annotation This section refers to periods of limitations, not periods of repose. Leverence v. U.S. Fidelity & Guaranty, 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990).

893.07 Annotation This section does not borrow foreign tolling statutes. Johnson v. Johnson, 179 Wis. 2d 574, 508 N.W.2d 19 (Ct. App. 1993).

893.07 Annotation This section is applicable to actions on contracts. A claim is foreign when the final significant event giving rise to a suable event, the alleged breach, occurs outside the state. Abraham v. General Casualty Co. 217 Wis. 2d 294, 576 N.W.2d 46 (1998).

893.07 Annotation Tort action based on an injury received outside this state was "foreign". Johnson v. Deltadynamics, Inc. 813 F.2d 944 (7th Cir. 1987).

893.07 Annotation A tort action is foreign for purposes of this section when the injury giving rise to liability is incurred outside this state. Terranova v. Terranova, 883 F. Supp. 1273 (1995).

893.07 Annotation Under this section, a foreign jurisdiction's period of limitations is borrowed, but not its period of repose. Beard v. J. I. Case Co. 823 F.2d 1095 (7th Cir. 1987).

893.07 Annotation Wisconsin's borrowing statute: Did we shortchange ourselves? 70 MLR 120 (1986).

subch. II of ch. 893 SUBCHAPTER II

LIMITATIONS TOLLED OR EXTENDED

893.10 893.10  Actions, time for commencing. The period within which an action may be commenced shall not be considered to have expired when the court before which the action is pending is satisfied that the person originally served knowingly gave false information to the officer with intent to mislead the officer in the performance of his or her duty in the service of any summons or civil process. If the court so finds, the period of limitation is extended for one year.

893.10 History History: 1979 c. 323.

893.10 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.14 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.11 893.11  Extension of time if no person to sue. The fact that there is no person in existence who is authorized to bring an action on a cause of action at the time it accrues shall not extend the time within which, according to this chapter, an action may be commenced upon the cause of action to more than double the period otherwise prescribed by law.

893.11 History History: 1979 c. 323.

893.11 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.50 renumbered for more logical placement in restructured ch. 893 and revised for the purpose of textual clarity only. [Bill 326-A]

893.12 893.12  Advance payment of damages; limitation extended. The period fixed for the limitation for the commencement of actions, if a payment is made as described in s. 885.285 (1), shall be either the period of time remaining under the original statute of limitations or 3 years from the date of the last payment made under s. 885.285 (1), whichever is greater.

893.12 History History: 1979 c. 323.

893.12 Note Judicial Council Committee's Note, 1979: This section is created to place the statute extending statute of limitations when there has been a settlement and advance payment of claim for damages into the subchapter of chapter 893 on extension of statute of limitations. The provisions of prior s. 885.285 (4) are contained without change in newly created s. 893.12. [Bill 326-A]

893.12 Annotation Any payment made in advance or settlement of either personal injury or property damage claims extends the limitation for a personal injury claim, but only if it is made within the 3-year limit of s.893.54 (1). Abraham v. Milwaukee Mutual Insurance Co. 115 Wis. 2d 678, 341 N.W.2d 414 (Ct. App. 1983).

893.12 Annotation This section does not apply to foreign causes of action. Section 893.07 (1) prevents s. 893.12 from extending foreign statutes of limitation. Thimm v. Automatic Sprinkler Corp. 148 Wis. 2d 332, 434 N.W.2d 842 (Ct. App. 1988).

893.12 Annotation The tolling provision applies only to the party that received a settlement or advance payment under s. 885.285. It does not apply to a stranger to the settlement. Riley v. Doe, 152 Wis. 2d 766, 449 N.W.2d 83 (Ct. App. 1989).

893.12 Annotation For a period of limitations to be extended under this section as the result of a "payment" by check, the check must be accepted and negotiated. Parr v. Milwaukee Bldg. & Const. Trades, 177 Wis. 2d 140, 501 N.W.2d 858 (Ct. App. 1993).

893.12 Annotation To be a payment under s. 885.285 that will toll or extend the statute of limitations, a payment must be related to fault or liability. Gurney v. Heritage Mutual Insurance Co. 188 Wis. 2d 68, 523 N.W.2d 193 (Ct. App. 1994).

893.13 893.13  Tolling of statutes of limitation.

893.13(1) (1) In this section and ss. 893.14 and 893.15 "final disposition" means the end of the period in which an appeal may be taken from a final order or judgment of the trial court, the end of the period within which an order for rehearing can be made in the highest appellate court to which an appeal is taken, or the final order or judgment of the court to which remand from an appellate court is made, whichever is latest.

893.13(2) (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.

893.13(3) (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 to 30 days from the date of final disposition.

893.13 History History: 1979 c. 323.

893.13 Note Judicial Council Committee's Note, 1979: Section 893.35 is repealed and this section created to clarify the ending of the tolled period of a statute of limitations in the various situations which can arise when an appeal is taken.

893.13 Annotation Sub. (3) would apply when, for example, an action was commenced when the period of limitation has only 5 days left to run. The running of the period of limitation is tolled for the period from commencement of the action until the day of its final disposition, such as dismissal of the action based on the pleadings. A 30-day period is then provided (rather than the 5 days left on the original period of limitation) in order to provide a reasonable time for a party to consider whether to recommence the action. [Bill 326-A]

893.13 Annotation This section does not toll the statute to allow an independent claim by an insurer. It simply insures that the joinder of constituent parts of a cause of action, during the pendency of the action, is not frustrated by the application of the appropriate statute of limitations. Aetna Casualty & Surety Co. v. Owens, 191 Wis. 2d 745, 530 N.W.2d 51 (Ct. App. 1995).

893.13 Annotation The filing of an action, subsequently voluntarily dismissed, tolls the statute of limitations under sub. (2) for the period specified in sub. (1) for cases where no appeal is taken. Johnson v. County of Crawford, 195 Wis. 2d 374, 536 N.W.2d 167 (Ct. App. 1995).

893.13 Annotation A suit filed prior to the expiration of the 120-day period or a denial of claim under s. 893.80 is not truly commenced and does not toll the statute of limitations when filed. Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996).

893.135 893.135  Tolling of statute of limitations for marital property agreements. Any statute of limitations applicable to an action to enforce a marital property agreement under ch. 766 is tolled as provided under s. 766.58 (13).

893.135 History History: 1985 a. 37; 1987 a. 393.