Return to wisbar.org
Wisconsin Court of Appeals
|
NOTICE | |
|
March 18, 1999 |
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. |
|
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV | |
|
Donald Strassman, and Wisconsin Electrical Employees' Benefit Funds, Plaintiffs, Diane Strassman, Plaintiff-Appellant, v. Robert J. Muranyi, and Travelers Insurance Company, Defendants-Third- Party Plaintiffs, v. Donald Strassman, Third-Party Defendant, General Casualty Company of Wisconsin, Third-Party Defendant- Respondent. |
||
APPEAL from an order of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before Dykman, P.J., Eich and Roggensack, JJ.
DYKMAN, P.J.Diane Strassman appeals from an order dismissing her negligence claim against General Casualty Company of Wisconsin. Strassman contends that her claim against General Casualty, which was filed after the three-year statutory period for filing a personal injury claim had expired, was timely because it was based upon the same transaction or occurrence that gave rise to Muranyi's claim against General Casualty, which was filed within the statutory period. We disagree and affirm.
Background
On August 12, 1994, Diane Strassman and her husband, Donald, were playing golf at Monona Municipal Golf Course when she fell out of a golf cart driven by her husband. On May 1, 1995, the Strassmans, along with Diane's health insurer, Wisconsin Electrical Employee's Benefit Funds (hereinafter Diane), filed a negligence action against Robert Muranyi, the golf pro who rented the cart to the Strassmans, and his insurer, Traveler's Insurance Company (hereinafter Muranyi). She asserted that, despite Donald's operating the cart in a usual and customary manner, the cart lurched forward causing her injuries. On July 24, 1996, Muranyi filed an amended third-party claim against Donald and his insurer, General Casualty Company of Wisconsin, asserting that Diane's injuries were caused by Donald's negligent driving.
On October 31, 1997, Diane and her health insurer asserted a cause of action against General Casualty based upon Donald's alleged negligent operation of the golf cart, which was similar to the claim Muranyi filed against General Casualty. General Casualty filed its answer on May 26, 1998, asserting that the claim was time barred under the applicable statute of limitations. It later moved for summary judgment on the same grounds. On August 11, 1998, the trial court granted General Casualty's motion. Diane now appeals.
Standard of Review
We review a grant or denial of summary judgment de novo, using the methodology set out in §802.08(2), Stats. See M&I First Nat'l Bank v. Episcopal Homes Management, Inc., 195 Wis.2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). That methodology is well known, and we need not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. at 496-97, 536 N.W.2d at 182. In a case such as this, where there are no disputed issues of material fact, we need only determine whether the moving party is entitled to judgment as a matter of law. See generally Larson v. Zelz, 151 Wis.2d 637, 640, 445 N.W.2d 699, 701 (Ct. App. 1989).
Discussion
Section 893.54(1), Stats., requires that all personal injury suits be brought within three years of the date of injury or the date that the victim discovers or should discover that he or she has been injured. See also Borello v. U.S. Oil Co., 130 Wis.2d 397, 411, 388 N.W.2d 140, 146 (1986). "The purpose of §893.54(1), Stats., like all statutes of limitations, is to ensure prompt litigation of valid claims and to protect the defendant from fake or fraudulent claims brought after evidence has been lost and memories [have] faded." Lord v. Hubbell, Inc., 210 Wis.2d 150, 164, 563 N.W.2d 913, 919 (Ct. App.), rev. denied, 215 Wis.2d 422, 576 N.W.2d 279 (1997).
Diane was injured on August 12, 1994, and was aware of her injuries as of that date. However, she did not bring her claim against General Casualty until October 31, 1997. The issue is whether she still may assert a claim against General Casualty under §803.05(1), Stats., even though the statute of limitations has expired, because Muranyi filed a similar claim against General Casualty within the statutory period.1 This presents a question of statutory interpretation that we review de novo. See Hughes v. Chrysler Motors Corp., 197 Wis.2d 973, 978, 542 N.W.2d 148, 149 (1996).
The purpose of statutory interpretation is to discern legislative intent. See Lincoln Sav. Bank, S.A. v. DOR, 215 Wis.2d 430, 441, 573 N.W.2d 522, 527 (1998). We first consider the language of the statute. See id. If that language clearly and unambiguously sets forth the legislative intent, we will not look beyond the statutory language to ascertain legislative intent. See id. Instead, we apply the statutory language to the facts of the case. See id. If a statute is ambiguous, we look to the statute's scope, history, context, subject matter and object in order to ascertain legislative intent. See State v. Setagord, 211 Wis.2d 397, 406, 565 N.W.2d 506, 510 (1997). A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. See id.
Section 803.05(1), Stats., reads in pertinent part as follows:
The plaintiff may assert any claim against the third-party defendant if the claim is based upon the same transaction, occurrence or series of transactions or occurrences as is the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert defenses as provided in s. 802.06 and counterclaims and cross-claims as provided in s. 802.07.
This statute is silent as to whether the three-year statute of limitations applies to claims raised under §803.05, Stats. Diane argues that because §803.05 does not contain a statute of limitations, a claim may be brought under this statute at any time, as long as one party raises the same claim within the statutory period and all the parties have notice of the pending litigation against them. General Casualty disagrees. It contends that while §803.05(1) does not give a time limit for filing a claim, this does not mean that the statute of limitations no longer applies.
When the statute is silent, and there is no Wisconsin case law that addresses the issue, we look to other sources for guidance. The language we have quoted from §803.05(1), Stats., is nearly identical to its federal counterpart, Fed. R. Civ. P. 14(a).2 When a state statute mirrors federal law, we may look to federal cases for guidance in interpreting the state statute. See State v. Gudenschwager, 191 Wis.2d 431, 439, 529 N.W.2d 225, 228 (1995). This provision in Rule 14(a) has been interpreted as follows:
The fact that the third party has been brought into the action does not revive any claims the original plaintiff may have had against him that should have been asserted earlier but have become unenforceable. Thus, any claim existing between plaintiff and the third-party defendant is subject to the applicable statute of limitations; the statute is neither tolled nor waived upon the third-party defendant's entry into the action but continues to run until plaintiff actually asserts a claim against him, or, if the time period runs before the action is commenced, serves as a bar to the claim.
6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §1459 at 451 (2d ed. 1990) (footnote omitted); see also Northbrook Nat'l Ins. Co. v. J & R Vending Corp., 167 F.R.D. 643, 645 (1996); Dysart v. Marriorr Corp., 103 F.R.D. 15, 18 (1984); see generally Frankel v. Back, 37 F.R.D. 545, 547 (E.D. Penn. 1965) (filing of third-party complaint by original defendant does not toll statute of limitations on action between plaintiff and third-party defendant); Hankinson v. Pennsylvania R.R. Co., 160 F. Supp. 709, 710 (E.D. Penn. 1958) (plaintiff who files an untimely claim against a third-party defendant is not helped by the fact that defendant/third-party plaintiff's claim against the third-party defendant was timely).3
Diane contends that her negligence claim against General Casualty is essentially the same as the claim Muranyi brought against General Casualty within the statutory period, and, therefore, General Casualty was on notice that they would be subject to a negligence suit.4 She asserts that this notice negates General Casualty's ability to raise the statute of limitations as an affirmative defense. She argues that because the purpose of the statute of limitations is to ensure that the defendant has timely notice of a claim in order that he may investigate it and defend against it, her claim should be allowed to proceed.
Statutes of limitations, however, serve a much different purpose then simply providing notice and repose. We have held as follows regarding the effect statutes of limitations have on a claim:
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.
Kohnke v. St. Paul Fire Ins. Co, 140 Wis.2d 80, 85, 410 N.W.2d 585, 587 (Ct. App. 1987) (quoting Maryland Cas. Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177, 179 (1944). Therefore, we reject Diane's argument equating notice with statute of limitation tolling.
Conclusion
Diane's suit against General Casualty was filed after the statute of limitations had expired. The fact that Muranyi filed a similar suit against General Casualty within the statutory period does not extend the statutory period for others to file similar suits. Accordingly, we affirm.
By the Court.-Order affirmed
Recommended for publication in the official reports.
1 Diane's claim against General Casualty is not an amendment to her original claim against Muranyi, under §802.09, Stats. Her claim also is not a cross-claim under §802.07(3), Stats., because General Casualty is not a "co-party." The term "co-party" is not defined in the Wisconsin Statutes or in our case law, but it has been interpreted in those cases arising under Fed. R. Civ. P. 13(g), the federal counterpart to §802.07(3). Therefore, we will look to federal case law for guidance.
Federal courts have defined a co-party, as either a party having like status, such as co-defendants, see Murray v. Haverferd Hosp. Corp., 278 F. Supp. 5, 6 (E.D. Pa 1968), or as any party that is not an adverse or opposing party, see Georgia Ports Auth. v. Construzioni Meccaniche Industriali Genovesi, 119 F.R.D. 693, 695 (S.D. Ga 1988). General Casualty is a defendant and Diane is a plaintiff, and their interests are clearly adverse. Consequently, because they are not co-parties, her claim cannot be a cross-claim.
2 The language of Fed. R. Civ. P. 14(a) reads in pertinent part as follows:
The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13.
3 Diane argues that this approach overlooks the fundamental philosophy that Wisconsin courts have adopted regarding the purpose of pleadings. She cites several cases in which Wisconsin courts have held that the purpose of pleadings is to notify the opposing party of the pleader's position in the case and to help frame the issues for the litigants and the court, and that Wisconsin has rejected the approach that pleading is a game of skill in which one misstep by counsel my be decisive in the outcome.
However, Diane has not established how Wisconsin's approach to pleadings differs from the federal approach. Both jurisdictions embrace notice pleading and reject the approach that pleading is a game of skill and manipulation. See Foman v. Davis, 371 U.S. 178, 181-82 (1962); Conley v. Gibson, 355 U.S. 41, 48 (1957).
4 Throughout her brief, Diane relies on Korkow v. General Cas. Co., 117 Wis.2d 187, 344 N.W.2d 108 (1984), to support her assertion that her claim against General Casualty is not time barred. We conclude that this reliance is misplaced because Korkow involved relation-back amendment under §802.09(3), Stats. Relation-back amendments require factors that did not exist in this case, i.e., General Casualty must have had notice based on the original pleading that Diane was going to sue it and assert her husband's negligence. In her initial complaint, Diane alleged that her husband was driving in the usual and ordinary manner. Her next claim asserted that her husband was negligent. These are completely different causes of action. Moreover, they are being brought against two unrelated defendants, and General Casualty had no notice that Diane would sue it. Because the factors for a relation-back amendment are not met, we conclude that the Korkow case offers little guidance.