The discovery rule permits the accrual of both survival claims and wrongful death claims to occur after the date of the decedent's death. In the absence of a legislatively created rule to the contrary, these claims accrue when there is a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it. Christ v. Exxon Mobil Corp., 2015 WI 58
, 362 Wis. 2d 668
, 866 N.W.2d 602
Discovery occurs when the plaintiff has information that would constitute the basis for an objective belief as to the plaintiff's injury and its cause. The degree of certainty that constitutes sufficient knowledge is variable, depending on the particular facts and circumstances of the plaintiff. With corporate players, a different quantum of expertise and knowledge is in play. Wisconsin courts have recognized that ignorance is a less compelling excuse for corporate enterprises in the context of the discovery rule. KDC Foods, Inc. v. Gray, Plant, Mooty, Mooty & Bennett, P.A., 763 F.3d 743
Computing Time in Tort Statutes of Limitation. Ghiardi. 64 MLR 575 (1981).
Computing Time in Statutes of Limitation. Ghiardi. Wis. Law. Mar. 1993.
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.
History: 1979 c. 323
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]
The expiration of the limitations period extinguishes the cause of action of the potential plaintiff and it also creates a right enjoyed by the would-be defendant to insist on that statutory bar. A defendant, having acquired a right to assert the statute of limitations bar by operation of law, would suffer plain legal prejudice if a plaintiff's motion for voluntary dismissal were granted. Wojtas v. Capital Guardian Trust Co., 477 F.3d 924
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.
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.
History: 1979 c. 323
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.
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]
The borrowing statute was properly applied to an injury received outside of this state. A conflict of laws analysis was not appropriate. Guertin v. Harbour Assurance Co. of Bermuda, 141 Wis. 2d 622
, 415 N.W.2d 831
Section 893.16 (1) is effective to toll the running of the statute of limitations, even when under this section 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 152
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. of Wisconsin, 217 Wis. 2d 294
, 576 N.W.2d 46
Sub. (1) refers to “the period of limitation," as defined by the foreign jurisdiction, that governs the case in the foreign state. Application of this rule includes a limitation period that operates as a statute of repose. Wenke v. Gehl Co., 2004 WI 103
, 274 Wis. 2d 220
, 682 N.W.2d 405
In medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is “foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred outside of Wisconsin. When the plaintiff's place of first injury is unknowable but could have occurred within or outside of this state, the borrowing statute does not apply. Paynter v. ProAssurance Wisconsin Insurance Co., 2019 WI 65
, 387 Wis. 2d 278
, 929 N.W.2d 113
A cause of action is foreign for purposes of the borrowing statute if the plaintiff's injury occurred outside of this state. An injury occurs where it is felt rather than where it originates. To the extent the physician in this case violated the plaintiff's right to informed consent, that injury was felt in Michigan because the plaintiff was in Michigan when the physician allegedly informed the plaintiff that his growth was not malignant and needed no further treatment. Paynter v. ProAssurance Wisconsin Insurance Co., 2019 WI 65
, 387 Wis. 2d 278
, 929 N.W.2d 113
A tort action based on an injury received outside of this state was “foreign." Johnson v. Deltadynamics, Inc., 813 F.2d 944
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
It is a quirk of libel law that a plaintiff is generally considered to be injured wherever the defamatory writing is published. Therefore, a multistate defamation case in which at least some injury occurs within the borders of this state does not constitute a foreign cause of action for purposes of the borrowing statute. Faigin v. Doubleday Dell Publishing Group, Inc., 98 F.3d 268
This section directs courts to apply the shortest limitation period possible to foreign causes of action, whether the applicable statute is a statute of limitations or a statute of repose. Merner v. Deere & Co., 176 F. Supp. 2d 882
Wisconsin's Borrowing Statute: Did We Shortchange Ourselves? Endreson. 70 MLR 120 (1986).
Interpreting Wisconsin's Borrowing Statute. Wiegand. Wis. Law. May 2001.
LIMITATIONS TOLLED OR EXTENDED
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.
History: 1979 c. 323
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]
Many Wisconsin statutes of limitations use commencement of “an action” to set the time by which a claimant must act to timely preserve a claim. A party can possess a claim without it commencing an action, but a party cannot properly commence an action without it asserting at least one valid claim. Because a claim provides the basis for an action, a claim necessarily exists before an action is brought, and what matters for limitations purposes is whether an action is timely commenced asserting that claim. The legislative choice to refer to an “action” reflects these basic principles. Town of Burnside v. City of Independence, 2016 WI App 94
, 372 Wis. 2d 802
, 889 N.W.2d 186
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.
History: 1979 c. 323
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]
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.
History: 1979 c. 323
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]
Any payment made in advance or settlement of either personal injury or property damage claims, when the plaintiff has both, extends the limitation for a personal injury claim, if it is made within the three-year limit period of s. 893.54 (1). Abraham v. Milwaukee Mutual Insurance Co., 115 Wis. 2d 678
, 341 N.W.2d 414
(Ct. App. 1983).
This section does not apply to foreign causes of action. Section 893.07 (1) prevents this section from extending foreign statutes of limitations. Thimm v. Automatic Sprinkler Corp. of America, 148 Wis. 2d 332
, 434 N.W.2d 842
(Ct. App. 1988).
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).
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 Building & Construction Trades, 177 Wis. 2d 140
, 501 N.W.2d 858
(Ct. App. 1993).
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).
The waiver by the defendant medical provider in a medical malpractice action of the copayment portion of the amount due for the plaintiff's medical treatment did not constitute a payment under this section or s. 885.285. Young v. Aurora Medical Center of Washington County, Inc., 2004 WI App 71
, 272 Wis. 2d 300
, 679 N.W.2d 549
Tolling of statutes of limitation. 893.13(1)(1)
In this section and ss. 893.14
“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.
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.
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.
History: 1979 c. 323
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. Owen, 191 Wis. 2d 744
, 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
, 191 Wis. 2d 744
(1995), 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 three “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 limitations 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 the claim; such claims are not resurrected by the plaintiff's filing. Donaldson v. West Bend Mutual Insurance Co., 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 its president and chief executive officer 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)(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.
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)(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.
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.