Judicial Council Committee's Note, 1979: Section 893.35 is repealed and this section created to clarify the ending of the tolled period of a statute of limitations in the various situations which can arise when an appeal is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.
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]
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).
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 in which no appeal is taken. Johnson v. County of Crawford, 195 Wis. 2d 374
, 536 N.W.2d 167
(Ct. App. 1995), 95-0144
A suit filed prior to the expiration of the 120-day period for 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
To interpret this statute to mean that a plaintiff's timely lawsuit tolled the statute of limitations as to all other possible victims would abrogate the statute of limitations. Such an interpretation would lead to absurd results and render meaningless the statute of limitations in multiple-victim cases. Barnes v. WISCO Hotel Group, 2009 WI App 72
, 318 Wis. 2d 537
, 767 N.W.2d 352
does not establish that whenever a person intervenes in a pending lawsuit, asserting claims identical to, although not constituent of, those of the original parties, the intervenor receives the benefit of tolling under sub. (2). Only a person having one of the 3 “constituent parts” of an original, timely cause of action under s. 803.03 (2) (a), i.e. subrogation, derivation, or assignment, may successfully intervene in a pending action without regard to the statute of limitations. Town of Burnside v. City of Independence, 2016 WI App 94
, 372 Wis. 2d 802
, 889 N.W.2d 186
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)
History: 1985 a. 37
; 1987 a. 393
Tolling of statute of limitations for certain time-share actions.
Any statute of limitations affecting the right of an association organized under s. 707.30 (2)
or a time-share owner, as defined in s. 707.02 (31)
, against a developer, as defined in s. 707.02 (11)
, is tolled as provided in s. 707.34 (1) (bm)
History: 1987 a. 399
Limitation on use of a right of action as a defense or counterclaim.
Unless otherwise specifically prescribed by law, the period within which a cause of action may be used as a defense or counterclaim is computed from the time of the accrual of the cause of action until the time that the plaintiff commences the action in which the defense or counterclaim is made. A law limiting the time for commencement of an action is tolled by the assertion of the defense or the commencement of the counterclaim until final disposition of the defense or counterclaim. If a period of limitation is tolled under this section 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.
History: 1979 c. 323
Judicial Council Committee's Note, 1979: This section is based upon previous ss. 893.48 and 893.49. The section provides, however, that a statute of limitations is tolled only from the assertion of the defense or counterclaim until the final disposition of the defense or counterclaim. Under previous s. 893.49 a statute of limitations was tolled from the commencement of the action in which the defense or counterclaim was asserted until the termination of the action. [Bill 326-A]
When an action to recover damages for injuries to the person is commenced as a counterclaim pursuant to this section, the statute of limitations established by s. 893.54 applies. The tolling of the statute of limitation under this section begins on the date the defendant files the counterclaim. The phrase “unless otherwise specifically prescribed by law" applies to counterclaims that were already barred at the time the plaintiff filed his or her claim; such claims are not resurrected by the plaintiff's filing. Donaldson v. West Bend Mutual Insurance Company, 2009 WI App 134
, 321 Wis. 2d 244
, 773 N.W.2d 470
In determining whether a client exercised reasonable diligence to discover a claim against its attorney, the existence of a fiduciary relationship, rather than excusing a client entirely from its obligation to investigate, is merely one factor to be considered. Under the circumstances of this case, although a fiduciary relationship existed, the client was a sophisticated corporate actor and that its president and CEO harbored suspicions about the attorney's conduct for approximately one year before the transaction in question closed. Those facts gave rise to a duty to investigate, regardless of the fiduciary relationship. Sands v. Menard, 2016 WI App 76
, 372 Wis. 2d 126
, 887 N.W.2d 94
Effect of an action in a non-Wisconsin forum on a Wisconsin cause of action. 893.15(1)
In this section “a non-Wisconsin forum" means all courts, state and federal, in states other than this state and federal courts in this state.
In a non-Wisconsin forum, the time of commencement or final disposition of an action is determined by the local law of the forum.
A Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of action is tolled from the period of commencement of the action in a non-Wisconsin forum until the time of its final disposition in that forum.
(4) Subsection (3)
does not apply to an action commenced on a Wisconsin cause of action in a non-Wisconsin forum after the time when the action is barred by a law of the forum limiting the time for commencement of an action.
If an action is commenced in a non-Wisconsin forum on a Wisconsin cause of action after the time when the Wisconsin period of limitation has expired but before the foreign period of limitation has expired, the action in the non-Wisconsin forum has no effect on the Wisconsin period of limitation.
History: 1979 c. 323
Judicial Council Committee's Note, 1979: Sub. (1) defines the term “a non-Wisconsin forum". “State" is defined in s. 990.01 (40) to include the District of Columbia, Puerto Rico, and territories of the United States.
Sub. (2) determines the commencement and termination of an action in a non-Wisconsin forum by the law of that forum. “Local law" is referred to so that the non-Wisconsin court determining the commencement of an action in, for example, Illinois will use Illinois law, not including any other law which an Illinois court might use under a choice of law theory.
Sub. (3) applies the tolling effect of Wisconsin statutes to actions on Wisconsin causes of action brought in federal courts in Wisconsin and to all other courts, state and federal, in the United States.
Sub. (4) prevents the commencement of an action in a forum whose statute of limitations has run from extending the Wisconsin tolling period.
Sub. (5) prevents the maintenance of an action in a non-Wisconsin forum from extending a Wisconsin statute of limitations. [Bill 326-A]
A voluntarily dismissed federal action does not toll the Wisconsin statute of limitations. A voluntarily dismissed federal action is a nullity, having no effect on a statute of limitations. Culbert v. Ciresi, 2003 WI App 158
, 266 Wis. 2d 189
, 667 N.W.2d 825
Person under disability. 893.16(1)
If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.
(2) Subsection (1)
does not shorten a period of limitation otherwise prescribed.
A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues.
When 2 or more disabilities coexist at the time the cause of action accrues, the 2-year period specified in sub. (1)
does not begin until they all are removed.
This section applies only to statutes in this chapter limiting the time for commencement of an action or assertion of a defense or counterclaim except it does not apply to:
Actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for escape;
A cause of action which accrues prior to July 1, 1980.
History: 1979 c. 323
; 1997 a. 133
Judicial Council Committee's Note, 1979: This section is based on present ss. 893.135, 893.33, 893.37 and 893.38. Previous ss. 893.135 and 893.33 stated that the time of disability is not counted as the running of a statute of limitation and further stated that an action could be brought within a specified time after the disability ceased. This is inherently inconsistent and is replaced in s. 893.16 by the simple provision that the action may be commenced within 2 years after the disability ceases. Changes from previous s. 893.135 are:
(a) The period within which to sue after the period of disability ends is reduced from 5 years to 2 years.
(b) The maximum extension time available to those under disability of insanity or imprisonment is limited to 5 years. This means that such individuals must sue within 5 years after the basic applicable statute of limitations would have run against one not under disability, or within 2 years after the disability ends, whichever period is shorter.
(c) The phrase in previous s. 893.135, “at the time such title shall first descend or accrue" is changed to “at the time the cause of action accrues," and this is reinforced by subsection (3). Despite appearances, this represents no change in substance because of the decision in Swearingen v. Roberts, 39 Wis. 462 (1876).
Other changes include:
(a) A specific provision provides that no limitation period is shortened by the application of this section. This represents no substantive change.
(b) In view of the 5-year extension provision reasons for excluding those imprisoned for life from the benefits of the disability provision disappear and the exclusion has been dropped.
(c) The period within which to sue provided in previous s. 893.33 has been increased from one year to 2 years.
To illustrate some of the effects of these revisions:
(a) If a statute of limitation has run on a cause of action of a minor for a personal injury the minor would have one year to commence an action after attaining age 18 under previous s. 893.33. Under s. 893.16 the minor has 2 years to commence an action after attaining age 18.
(b) If a minor has a cause of action affecting title to real estate and the statute of limitation has run the minor has 5 years to commence an action after attaining age 18 under previous s. 893.135. Under s. 893.16 the minor has 2 years to commence the action. [Bill 326-A]
Sub. (1) is effective to toll the running of a 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 Insurance Co. 155 Wis. 2d 608
, 456 N.W.2d 312
If a party wishes the benefit of the disability tolling statute, then the party does not get the benefit of the discovery rule. Kilaab v. Prudential Insurance Co. 198 Wis. 2d 700
, 543 N.W.2d 538
(Ct. App. 1995).
Injury from intentional acts of sexual assault against minors and the cause of any injury should have been discovered, as a matter of law, at the time of the assaults. A claim of repressed memory does not indefinitely toll the statute of limitations 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
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 claim. Joseph W. v. Catholic Diocese of Madison, 212 Wis. 2d 925
, 569 N.W.2d 795
(Ct. App. 1997), 96-2220
Under sub. (1), “mental illness" is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them. Legal consultation and filings are probative of a plaintiff's mental health and functional ability to appreciate and act upon his or her legal rights. Storm v. Legion Insurance Company, 2003 WI 120
, 265 Wis. 2d 169
, 665 N.W.2d 353
This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc. 2005 WI 171
, 286 Wis. 2d 621
, 707 N.W.2d 853
A prisoner is entitled to the tolling provision under sub. (1) when bringing a 42 USC 1983 action. Hardin v. Straub, 490 U.S. 536
, 104 L. Ed. 2d 582
Transition; limitation if disability exists; temporary. 893.17(1)(1)
This section does not apply to a cause of action which accrues on or after July 1, 1980.
Except as provided in sub. (2m)
, if a person entitled to commence any action for the recovery of real property or to make an entry or defense founded on the title to real property or to rents or services out of the real property is, at the time the title shall first descend or accrue, under any of the following disabilities, the time during which the disability continues is not a part of the time limited by this chapter for the commencement of the action or the making of the entry or defense:
The person is imprisoned on a criminal charge or in execution upon conviction of a criminal offense, for a term less than for life.
An action under sub. (2)
may be commenced or entry or defense made, after the time limited and within 5 years after the disability ceases or the person entitled dies, if the person dies while under the disability, but the action shall not be commenced or entry or defense made after that period.
History: 1971 c. 213
; 1979 c. 323
; 1999 a. 85
Judicial Council Committee's Note, 1979: This section is previous s. 893.135 of the statutes renumbered for more logical placement into restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action for recovery of real property or to make an entry or defense founded on the title to real property or to its rents or services which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which accrue on or after July 1, 1980. [Bill 326-A]
Transition; persons under disability. 893.18(2)
Except as provided in sub. (2m)
, and except in actions for the recovery of a penalty or forfeiture, actions against a sheriff or other officer for an escape, or actions for the recovery or possession of real property, if a person entitled to bring an action mentioned in this chapter was at the time the cause of action accrued under any of the following disabilities, the time of the disability is not a part of the time limited for the commencement of the action:
The person is under the age of 18 years, except for actions against health care providers.
The person is imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than life.
The period within which an action must be brought cannot be extended under sub. (2)
more than 5 years by any disability, except infancy, nor can that period be so extended, in any case, longer than one year after the disability ceases.
A disability does not exist, for the purpose of this section, unless it existed when the cause of action accrued.
When 2 or more disabilities coexist at the time the cause of action accrues the period of limitation does not attach until they all are removed.
Judicial Council Committee's Note, 1979: This section is previous s. 893.33 of the statutes renumbered for more logical placement in restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which occur on or after July 1, 1980. [Bill 326-A]
Because the parents' claim arising from injury to their minor child was filed along with the child's claim within the time period for the child's claim, 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
An estate's survival claim under s. 895.01 is not tolled by sub. (2) if the only beneficiaries of the estate are minors. Lord v. Hubbell, Inc. 210 Wis. 2d Wis. 2d 150, 563 N.W.2d 913
(Ct. App. 1997), 96-1031
A parent's claim for negligent infliction of emotional distress arising from the same act as the child's injury benefits from the child's tolling period. Jendrzjek v. Tschopp-Durch-Camastral, 755 F. Supp. 1162
Limitation when person out of state. 893.19(1)
If a person is out of this state when the cause of action accrues against the person an action may be commenced within the terms of this chapter respectively limited after the person returns or removes to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action accrues, neither the party against nor the party in favor of whom the same accrues is a resident of this state; and if, after a cause of action accrues against any person, he or she departs from and resides out of this state the time of absence is not any part of the time limited for the commencement of an action; provided, that no foreign corporation which files with the department of financial institutions, or any other state official or body, pursuant to the requirements of any applicable statute of this state, an instrument appointing a registered agent as provided in ch. 180
, a resident or any state official or body of this state, its attorney or agent, on whom, pursuant to such instrument or any applicable statute, service of process may be made in connection with such cause of action, is deemed a person out of this state within the meaning of this section for the period during which such appointment is effective, excluding from such period the time of absence from this state of any registered agent, resident agent or attorney so appointed who departs from and resides outside of this state.
This section shall not apply to any person who, while out of this state, may be subjected to personal jurisdiction in the courts of this state on any of the grounds specified in s. 801.05
Judicial Council Committee's Note, 1979: This section is previous s. 893.30 renumbered for more logical placement in restructured ch. 893 and revised for purposes of clarity only. [Bill 326-A]
The validity of the defense that a North Carolina limitation statute barred the action was determined in light of analysis of North Carolina products liability case law. Central Mutual Insurance Co. v. H. O. Inc. 63 Wis. 2d 54
, 216 N.W.2d 239
Application to alien enemy.
When a person is an alien subject or citizen of a country at war with the United States the time of the continuance of the war is not a part of the time limited for the commencement of the action.