Dakin v. Marciniak

• Decision Date: 08 March 2005
• Docket Number: No. 04-0754.,04-0754.
• Citation: 695 N.W.2d 867,2005 WI App 67,280 Wis.2d 491
• Parties: Ruth M. DAKIN, Plaintiff-Respondent, v. Frances T. MARCINIAK, Eric C. Pease, Langlade Memorial Hospital, Liberty Mutual Insurance Company, The Cincinnati Insurance Company, Tommy Thompson as U.S. Secretary of Health & Human Services, ABC Insurance Co., Unknown Insurance Carrier(s) providing insurance coverage to each Defendant named herein, identified pursuant to Wis. Stats. 807.12, XYZ Company (s) and Unknown Defendants identified pursuant to Wis. Stats. 807.12, Defendants, ROUNDY'S, INC. and Copp's Food Center a/k/a Copp's Corporation, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

280 Wis.2d 491

2005 WI App 67

695 N.W.2d 867

Ruth M. DAKIN, Plaintiff-Respondent,¹ v. Frances T. MARCINIAK, Eric C. Pease, Langlade Memorial Hospital, Liberty Mutual Insurance Company, The Cincinnati Insurance Company, Tommy Thompson as U.S. Secretary of Health & Human Services, ABC Insurance Co., Unknown Insurance Carrier(s) providing insurance coverage to each Defendant named herein, identified pursuant to Wis. Stats. 807.12, XYZ Company (s) and Unknown Defendants identified pursuant to Wis. Stats. 807.12, Defendants, ROUNDY'S, INC. and Copp's Food Center a/k/a Copp's Corporation, Defendants-Appellants.

No. 04-0754.

Court of Appeals of Wisconsin.

Submitted on briefs January 24, 2005.

Decided March 8, 2005.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Randy S. Parlee of Peterson, Johnson & Murray, S.C. of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Nathaniel Cade, Jr. and Timothy M. Hansen of Michael Best & Friedrich, LLP of Milwaukee.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Roundy's, Inc., the successor in interest to Copp's Food Center, a/k/a Copp's Corporation,² appeals a nonfinal order denying its motion for summary judgment in this personal injury case.³ Roundy's argues the court erred when it concluded that, under WIS. STAT. § 802.09(3),⁴ Ruth Dakin could amend her complaint to add Roundy's as a defendant after the three-year statute of limitations for her claims had expired. Roundy's contends there is no legal or public policy basis under (1) the relation back statute, § 802.09(3); (2) the tolling provisions of WIS. STAT. §§ 893.54 and 893.13;⁵ or (3) Wisconsin's judicially created discovery rule to allow Dakin to assert her untimely claims against it. We agree, reverse the order, and remand the cause to the circuit court with directions to grant a summary judgment in favor of Roundy's, thereby dismissing it from the lawsuit.

Background

¶ 2. The events that gave rise to the underlying personal injury action in this case are straightforward. On April 4, 2000, at around 4:18 p.m., Eric Pease backed his car out of a parking space in a Copp's Food store parking lot. A bus Francis Marciniak was driving through the same lot swerved to avoid colliding with Pease.⁶ Although the car and the bus never made contact, Dakin, a passenger in the bus, was thrown from her seat and injured. Dakin left the Copp's parking lot in an ambulance. Pease never reported this incident to his then employer, Copp's.

¶ 3. The procedural history of Dakin's claim is more complicated. On March 17, 2003, about three weeks before the statute of limitations expired, Dakin filed a complaint against Pease,⁷ Marciniak, Langlade Memorial Hospital, several named insurance carriers, and an unknown carrier and an unknown defendant under the fictitious name statute. See WIS. STAT. § 807.12(1). On November 24, Dakin amended her complaint, adding Roundy's as a defendant. Because Pease was an on-the-clock employee of Copp's at the time of the accident, the amended complaint alleged that Roundy's was liable to Dakin under a theory of respondeat superior.⁸ On January 6, 2004, Roundy's moved for summary judgment on the ground that the statute of limitations for Dakin's personal injury claim had expired. After a February 23 hearing, the circuit court denied the motion. Roundy's petitioned this court for leave to appeal the nonfinal order. See WIS. STAT. § 809.50. We granted the petition on June 1, 2004.

Standard of Review

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¶ 4. A motion to dismiss based on the statute of limitations is treated as a motion for summary judgment. WIS. STAT. § 802.06(2)(b). We review such motions independently, applying the same methodology as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). If the plaintiff states a claim and the pleadings show the existence of factual issues, we determine whether the moving party has presented a defense that would defeat the claim. Wiegert v. Goldberg, 2004 WI App 28, ¶ 8, 269 Wis. 2d 695, 676 N.W.2d 522. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).

Discussion

¶ 5. The parties agree that claims such as Dakin's are governed by WIS. STAT. § 893.54, which establishes a three-year statute of limitations for actions brought to recover damages caused by the "wrongful act, neglect or default of another." The parties also agree that Dakin's amended complaint, naming Roundy's as a defendant, was filed more than three years after the April 2000 accident. The circuit court concluded the statute did not bar Dakin's claims against Roundy's, however, because Dakin's amended complaint related back, under WIS. STAT. § 802.09, to her initial timely complaint. The court's conclusion reflected its determination that Roundy's, as Pease's employer, had constructive notice of the accident when it occurred.

¶ 6. To relate back, an amended pleading must satisfy four conditions. See WIS. STAT. § 802.09. First, the new pleading must arise out of the conduct set forth in the original pleading. Second, the party to be added must have received notice so it will not be prejudiced in maintaining its defense. Third, the party to be added must know or should have known that, but for a mistake concerning identity, the action would have been brought against it. Finally, conditions two and three must be fulfilled within the prescribed limitations period.

¶ 7. Roundy's contends that constructive notice cannot satisfy the second WIS. STAT. § 802.09 requirement that the party to be brought in must have received notice so that it will not be prejudiced in maintaining its defense. In support of its position, Roundy's cites our decisions in Bartels v. Rural Mut. Ins. Co., 2004 WI App 166, ¶¶ 14-15, 275 Wis. 2d 730, 687 N.W.2d 84, and Grothe v. Valley Coatings, Co., 2000 WI App 240, ¶ 9, 239 Wis. 2d 406, 620 N.W.2d 463.⁹ Dakin's response to this contention is not fully developed.¹⁰ However, her argument appears to turn on the premise that because, for certain purposes, we ascribe knowledge to employers of their employees' actions, we should interpret § 802.09 as using notice in the same way. We are not persuaded.

[3]

¶ 8. Wisconsin courts have recognized that adequate notice in the complaint of the transaction, events or occurrence out of which the amended claims arise is essential if the statutory right to the protection of statutes of limitations are to be guaranteed. Korkow v. General Cas. Co., 117 Wis. 2d 187, 199, 344 N.W.2d 108 (1984). Statutes of limitations are enacted to ensure prompt litigation of claims and to protect defendants from fraudulent or stale claims. Id. at 198; see also Peterson v. Roloff, 57 Wis. 2d 1, 12, 203 N.W.2d 699 (1973), and State Farm Mut. Auto. Ins. Co. v. Schara, 56 Wis. 2d 262, 268, 201 N.W.2d 758 (1972). Those policy purposes are served by requiring that parties be given "formal and seasonable notice that a claim is being asserted against them." Korkow, 117 Wis. 2d at 199. The question is thus whether the constructive notice Dakin alleges¹¹ functions as the kind of "adequate" or "formal and seasonable" notice required under the relation back statute.

¶ 9. We have held that an original complaint alleging injuries arising from a vehicle insured by a particular carrier placed that carrier on notice that its liability might extend to negligent acts of other negligent insureds covered under the same policy. Biggart v. Barstad, 182 Wis. 2d 421, 433-34, 513 N.W.2d 681 (Ct. App. 1994). We have also held that an amended pleading adding a separate claim by a different plaintiff related back to a timely filed original complaint. Korkow, 117 Wis. 2d at 189-90. In Korkow, there was a new claim by a new plaintiff, the son of the original plaintiff, but the claim involved the same tavern, the same fire, and the same insurance policy as the original claim. Id. at 197. Under those circumstances, the insurer's ability to prepare to meet the claim was not prejudiced. See id. In both Biggart and Korkow, defendant insurers had actual knowledge of the underlying transaction out of which their potential liability arose and that knowledge was held to be sufficient notice that potential liability might extend to other claims arising out of the known transaction.

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¶ 10. The situation in this case is very different. As Dakin indicates, an employer with the requisite amount of control over the conduct of an employee may be held vicariously liable for that employee's negligent actions even when the employer had no actual knowledge of the negligent behavior. See, e.g., Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶ 27, 273 Wis. 2d 106, 682 N.W.2d 328. But the fact that constructive notice can sometimes create vicarious liability does not mean that such notice is adequate for the purposes of ameliorating the effects of statutes of limitations. In Wisconsin, "[t]he 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 enjoys constitutional protection." Haase v. Sawicki, 20 Wis. 2d 308, 311-12, 121 N.W.2d 876 (1963). Statutes of limitations thus implicate vital interests and are not designed to be easily avoided.

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¶ 11. Statutes of limitations serve the critical public policy interests of limiting fraudulent claims and encouraging vigorous litigation of proper claims. Adequate and timely notice is critical to both policies. To the extent that constructive notice is either imputed knowledge or, as earlier courts have described it, a mere "trademark of fiction," such notice will rarely be sufficient to identify an underlying transaction for the purposes of investigation and defense. Schoedel v. State Bank of Newburg, 245 Wis. 74, 76, 13 N.W.2d 534 (1944) ("[C]onstructive notice is in...