893.43 Annotation
An action for personal injuries resulting from medical malpractice, although based on contract, is subject to the 3-year limitation for injuries to the person. Estate of Kohls v. Brah,
57 Wis. 2d 141,
203 N.W.2d 666 (1973).
893.43 Annotation
An action by an insured against an insurance agent for failing to procure requested coverage is not an action against the insurer on the policy, but is an action resting upon the agent's contract with the insured to procure the insurance coverage agreed upon subject to the statute of limitations for contract. Estate of Ensz v. Brown Insurance Agency, Inc.
66 Wis. 2d 193,
223 N.W.2d 903 (1974).
893.43 Annotation
A cause of action for contribution is based upon a contract implied by law and must be brought within 6 years after one joint tortfeasor has paid more than his or her share. Hartford Fire Insurance Co. v. Osborn Plumbing,
66 Wis. 2d 454,
225 N.W.2d 628 (1973).
893.43 Annotation
When an employer deducted a "hypothetical tax factor" from salaries of its overseas employees so as to equalize compensation of its employees worldwide, an action to recover amounts so deducted had to be brought within the limitation period on wage claims, and not the period on other contract claims. Sussmann v. Gleisner,
80 Wis. 2d 435,
259 N.W.2d 114 (1977).
893.43 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 s. 893.44]. Rupp v. O'Connor,
81 Wis. 2d 436,
261 N.W.2d 815 (1978).
893.43 Annotation
Partial payment of an obligation made prior to the running of the statute of limitations tolls the statute and sets it running from the date of payment. St. Mary's Hospital Medical Center v. Tarkenton,
103 Wis. 2d 422,
309 N.W.2d 14 (Ct. App. 1981).
893.43 Annotation
A breach of a roofing contract occurred when the faulty roof was completed, not when the building was completed. State v. Holland Plastics Co.
111 Wis. 2d 497,
331 N.W.2d 320 (1983).
893.43 Annotation
An unjust enrichment claim accrues when a cohabitational relationship terminates. The court does not determine what statute of limitations, if any, applies. Watts (Bischoff) v. Watts,
152 Wis. 2d 370,
448 N.W.2d 292 (Ct. App. 1989).
893.43 Annotation
A contract cause of action accrues at the time of the breach. The discovery rule is inapplicable. CLL Associates v. Arrowhead Pacific,
174 Wis. 2d 604,
497 N.W.2d 115 (1993).
893.43 Annotation
This section applies to actions for the recovery of sales commissions. Erdman v. Jovoco, Inc.
181 Wis. 2d 736,
512 N.W.2d 487 (1994).
893.43 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.
893.43 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
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 s. 893.44]. 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 s. 893.43] does not apply unless services are actually rendered. Yanta v. Montgomery Ward & Co., Inc.
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 s. 893.44]. 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]
893.52
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) [now s. 893.52] 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 3 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. Wisconsin Public Service Corporation, 2005 WI App 40,
279 Wis. 2d 488,
694 N.W.2d 420,
03-2690.
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 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
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 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).
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. 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).
