2013 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) [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]

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) [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).

893.54 Annotation A claim of repressed memory does not indefinitely toll the statute of limitations nor 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), 94-0423.

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), 96-2220.

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 509, 574 N.W.2d 656 (1998), 96-2973.

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), 98-1343.

893.54 Annotation The statute of limitations for subrogation claims is the statute of limitations on the underlying tort. Schwittay v. Sheboygan Falls Mutual Insurance Co. 2001 WI App 140, 246 Wis. 2d 385, 630 N.W.2d 772, 00-2445.

893.54 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.

893.54 Annotation Knowing that a particular product caused an injury, an injured party cannot extend the accrual date for a cause of action against the product's manufacturer due to the subsequent discovery of possible connections between that product and another manufacturer's product in causing the injury. Baldwin v. Badger Mining Corporation & Mine Safety Appliances Co. 2003 WI App 95, 264 Wis. 2d 301, 663 N.W.2d 382, 02-1197.

893.54 Annotation Claims of negligent supervision made against an Archdiocese for injuries caused by sexual assaults by priests are derivative of the underlying sexual molestations by the priests. As claims for injuries resulting from sexual assault accrue by the time of the last incident of sexual assault, the derivative claims accrued, as a matter of law, by the time of the last incident of sexual assault. John Doe v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, 05-1945.

893.54 Annotation A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limitations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based — the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Company, 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

893.54 Annotation When an action to recover damages for injuries to the person is commenced as a counterclaim pursuant to s. 893.14, the statute of limitations established by this section applies. Donaldson v. West Bend Mutual Insurance Company, 2009 WI App 134, 321 Wis. 2d 244, 773 N.W.2d 470, 08-2289.

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 s. 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(1d) (1d) 

893.55(1d)(a) (a) The objective of the treatment of this section is to ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice. Achieving this objective requires a balancing of many interests. Based upon documentary evidence, testimony received at legislative hearings, and other relevant information, the legislature finds that a limitation on the amount of noneconomic damages recoverable by a claimant or plaintiff for acts or omissions of a health care provider, together with mandatory liability coverage for health care providers and mandatory participation in the injured patients and families compensation fund by health care providers, while compensating victims of medical malpractice in appropriate circumstances by the availability of unlimited economic damages, ensures that these objectives are achieved. Establishing a limitation on noneconomic damage awards accomplishes the objective by doing all of the following:

893.55(1d)(a)1. 1. Protecting access to health care services across the state and across medical specialties by limiting the disincentives for physicians to practice medicine in Wisconsin, such as the unavailability of professional liability insurance coverage, the high cost of insurance premiums, large fund assessments, and unpredictable or large noneconomic damage awards, as recognized by a 2003 U.S. congress joint economic committee report, a 2003 federal department of health and human services study, and a 2004 office of the commissioner of insurance report.