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    Supreme Court: Personal Service Not Sufficient, Statute Required Certified Mail in Lawsuit against State Employee

    Joe Forward

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    May 27, 2016 – The Wisconsin Supreme Court recently ruled that a woman involved in a car accident with a state employee cannot move forward with her lawsuit because she delivered notice of claim to the attorney general by personal service, not certified mail.

    Wis. Stat. section 893.82 governs notice of claims against state employees. It requires a plaintiff to serve written notice of claim, to the state attorney general, within 120 days of the event causing the injury, damage or death. Section 893.82(5) says notice “shall be served upon the attorney general at his or her office in the capitol by certified mail.”

    Cheryl Sorenson personally served her notice of claim. She did not send it by certified mail. But personal service was accepted by a state employee, forwarded to the attorney general’s office, processed, endorsed, and returned to Sorenson’s attorney.

    The defendant, state employee Richard Batchelder, moved to dismiss for improper service. Batchelder, who was working for the Department of Administration at the time, allegedly rear-ended a vehicle in 2010, causing that vehicle to rear-end Sorenson’s car.

    The circuit court denied Batchelder’s motion, concluding personal service was adequate because the attorney general actually received notice. But the appeals court reversed.

    In Sorenson v. Batchelder, 2016 WI 34 (May 12, 2016), a supreme court majority (5-2) affirmed the appeals court, concluding that “personal service does not comply with the plain language of § 893.82(5)” and the negligence lawsuit must be dismissed.

    The majority, in an opinion by Chief Justice Patience Roggensack, noted that section 893.82(2m) says “[n]o claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.”  

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The majority rejected Sorenson’s argument that personal service was actually more effective in achieving the statute’s purpose: to provide actual notice. And Sorenson had argued that substantial compliance with the statute’s purpose was enough.

    “Sorenson cannot strictly comply with the plain language of § 893.82(5) by substantially fulfilling the purposes of § 893.82 because the legislature has chosen not to permit substantial compliance by requiring strict compliance with the terms of the statute,” wrote Chief Justice Roggensack, again noting section 893.82(2m).

    Deviating from strict compliance, even though the attorney general received actual notice, would undermine the certainty of the certified mail requirement, Roggensack noted, and open the statute to case-by-case determinations on proper service.

    Dissent

    Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley. The dissenters argued that personal service complied with the statute’s purpose, was actually a stricter form of service, and the misstep was a harmless procedural error.

    “The dismissal of an otherwise viable claim should not depend on whether notice of that claim was delivered by someone in a sheriff’s uniform rather than a U.S. postal uniform,” wrote Abrahamson, stating that personal service is the “gold standard.”

    “To hold otherwise, as the majority opinion does, is to elevate form over substance and countenance an absurd result – dismissal of a viable claim based on a harmless procedural gaffe.”