Colby v. Columbia County
| Decision Date | 30 January 1996 |
| Docket Number | No. 93-3348,93-3348 |
| Citation | 550 N.W.2d 124,202 Wis.2d 342 |
| Parties | Clinton J. COLBY, Plaintiff-Appellant, v. COLUMBIA COUNTY, Wisconsin and Columbia County Highway Commissioner, Kurt Dey, or his predecessor in interest, Defendants-Respondents-Petitioners. . Oral Argument |
| Court | Wisconsin Supreme Court |
For the defendants-respondents-petitioners there were briefs by Bradley D. Armstrong, Paul Voelker and Axley Brynelson, Madison and oral argument by Paul Voelker.
For the plaintiff-appellant there there was a brief by Eric A. Farnsworth and DeWitt Ross & Stevens, S.C., Madison and oral argument by Eric A. Farnsworth.
The defendant-respondent-petitioner Columbia County seeks review of a decision of the court of appeals which reversed a circuit court order dismissing a personal injury action against Columbia County and Columbia County Highway Commissioner Kurt Dey (Columbia County) filed by the plaintiff-appellant-respondent Clinton J. Colby (Colby). See Colby v. Columbia County, 192 Wis.2d 397, 531 N.W.2d 404 (Ct.App.1995). The circuit court had dismissed the action against Columbia County on the ground that Colby's claim had accrued more than 3 years before the commencement of the action and, therefore, the action was barred by the statute of limitations under Wis.Stat. § 893.54 (1993-94). 1 The appellate court reversed, holding that the 3-year statute of limitations had been tolled when Colby filed his first complaint against Columbia County, despite such action having been dismissed as premature. Colby, 192 Wis.2d at 398-99, 531 N.W.2d 404.
We are presented with two issues on this appeal. First, was the premature filing of a summons and complaint that was subsequently dismissed because of the failure to comply with the provisions of Wis.Stat. § 893.80(1)(b), sufficient to toll the statute of limitations? Secondly, we are asked to consider whether the decision of the court of appeals in Fox v. Smith, 159 Wis.2d 581, 464 N.W.2d 845 (Ct.App.1990), failed to observe the precedent established by this court in Maynard v. De Vries, 224 Wis. 224, 272 N.W. 27 (1937) and should be reversed.
The facts on this review are not in dispute. On March 10, 1990, Colby was injured in a motor vehicle accident in Columbia County when the vehicle in which he was a passenger struck a concrete abutment located approximately two feet from the highway. Colby was rendered a quadriplegic as a result of the accident. Though retaining counsel in August 1990, Colby did not file a notice and claim with the clerk of Columbia County, pursuant to Wis.Stat. § 893.80(1)(b), until February 24, 1993, less than three weeks before the statute of limitations was set to expire, on March 10, 1993. Section 893.80(1) provides in relevant part as follows:
[N]o action may be brought or maintained against any ... political corporation, governmental subdivision or agency thereof ... upon a claim or cause of action unless:
. . . . .
(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the ... corporation, subdivision or agency and the claim is disallowed. Failure of the appropriate body to disallow within 120 days after presentation is a disallowance.
Thereafter, a summons and complaint was filed against Columbia County in Columbia County Circuit Court on February 26, 1993, by Colby and his parents. The Columbia County Board formally denied the claim on March 17, and in its answer, moved to dismiss the complaint. Columbia County contended that the action was filed prematurely, as Colby had failed to wait the required 120 days to file the complaint after filing his claim, as required by Wis.Stat. § 893.80(1). On July 19, 1993, the Honorable Andrew B Bissonette granted the motion in a memorandum decision, and an order of dismissal without prejudice was entered on August 9, 1993.
On August 10, 1993, Colby filed a second summons and complaint, which Columbia County again moved to dismiss, claiming that it was not timely filed under Wis.Stat. § 893.54. The motion was granted by the circuit court on November 5, 1993, the Honorable Daniel W. Klossner presiding. The circuit court reasoned that the statute of limitations had not been tolled when the plaintiff filed his initial claim because that filing had not commenced an action. In its holding, the circuit court acknowledged a decision of the appellate court which had addressed this issue, Fox v. Smith, 159 Wis.2d 581, 464 N.W.2d 845 (Ct.App.1990), and had concluded that Wis.Stat. § 893.13(2) tolled the running of a statute of limitations where the first complaint was defective because it was prematurely filed under Wis.Stat. § 893.80(1)(b). However, the circuit court declined to follow this decision, stating that the Fox opinion conflicted with an earlier decision of this court, Maynard v. De Vries, 224 Wis. 224, 272 N.W. 27 (1937), which clearly required that Colby's second complaint be dismissed.
Colby appealed, and Columbia County filed a Petition to Bypass, which was denied by this court on July 19, 1994. On March 2, 1995, the court of appeals released its opinion reversing the decision of the circuit court. The appellate court concluded that the commencement of a suit prior to the expiration of the statute of limitations does toll the statute under Wis.Stat. § 893.13 2 even if the action is later dismissed for failure to comply with the 120-day period for disallowance by the county, as prescribed under Wis.Stat. § 893.80. Colby, 192 Wis.2d at 400-01, 531 N.W.2d 404. Further, the court of appeals stated that its decision in Fox was controlling on the issue, and was not in conflict with this court's earlier decision in Maynard. Id. at 406, 531 N.W.2d 404. Columbia County thereafter filed a Petition for Review which was accepted by this court on May 10, 1995.
On this review, we are asked to interpret the relationship between Wis.Stat. § 893.13, Wis.Stat. § 893.23 and Wis.Stat. § 893.80. A question of statutory interpretation involves a question of law that this court reviews without deference to the decisions of the circuit or appellate courts. Pufahl v. Williams, 179 Wis.2d 104, 107, 506 N.W.2d 747 (1993) (citations omitted). When the court confronts an inconsistency between statutes, it should try to reconcile them without nullifying one or the other, in a manner that will effect legislative intent. Phillips v. Wisconsin Personnel Comm'n, 167 Wis.2d 205, 217, 482 N.W.2d 121 (Ct.App.1992).
The determination of this issue, as the parties suggest, requires a unique balancing of a plaintiff's right to access the courts with a governmental entity's fundamental right 3 to invoke a statute of limitations, as well as its legislatively mandated right to have a claim presented to it before it is forced into costly and expensive litigation. Periods of limitation employ various policies espoused by the legislature:
The bar created by operation of a statute of limitations is established independently of any adjudicatory process. It is legislative expression of policy that prohibits litigants from raising claims--whether or not they are meritorious--after the expiration of a given period of time. Under Wisconsin law 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.
In re Estate of Fessler, 100 Wis.2d 437, 448, 302 N.W.2d 414 (1981) (citations omitted). The present case marks the intersection at which an alleged dilatory plaintiff confronts the clear public policies articulated in the Wisconsin Statutes involving the right of a county to limit judicial proceedings against it.
Columbia County's primary contention in this case is that a plaintiff may not commence an action against the county until the provisions in Wis.Stat. § 893.80 have been satisfied. The County bases this presumption upon the extensive legislative history as well as the words of the statute, focusing particularly upon the statement that "no action may be brought or maintained." The County contends that in construing the statute, the phrase "no action may be brought" has a peculiar meaning in the law, such that "brought" and "commenced" are commonly deemed to be synonymous. See Schwartz v. City of Milwaukee, 43 Wis.2d 119, 168 N.W.2d 107 (1969). Therefore, the County asserts that the statutory language "no action can be brought" can only mean that "no action may be commenced." We agree with this construction.
The County then directs our attention to this court's earlier decision in Maynard to support its contention that since Wis.Stat. § 893.80(1)(b) provides that no action may be brought or maintained against a governmental subdivision unless the claim has been rejected or 120 days have passed since the notice was filed, Colby did not commence his action when he served a summons and complaint under Wis.Stat. § 893.02 without first fulfilling the requirements of § 893.80. Therefore, Columbia County concludes that because no action had been commenced prior to the expiration of the period of limitations, Colby was not entitled to the benefit of the tolling provision in Wis.Stat. § 893.13, which requires a commencement to trigger the saving provisions of the statute. Thus, the County urges this court to reverse the decision of the court of appeals, and dismiss Colby's action as untimely.
Assuming, arguendo, that Columbia County is correct in its contention that the legislature intended to prohibit a plaintiff from commencing an action against a governmental subdivision until the requirements of Wis.Stat. § 893.80 are satisfied, and the plaintiff is not entitled to the tolling statute, Wis.Stat. § 893.13, then the plaintiff, in effect, would be subjected to a "statutory prohibition" from...
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