Griffin v. MILWAUKEE TRANSP. SERVICES, INC.

• Decision Date: 15 May 2001
• Docket Number: No. 00-0861.,00-0861.
• Citation: 2001 WI App 125,246 Wis.2d 433,630 N.W.2d 536
• Parties: Linda GRIFFIN and Jimmy Griffin, Plaintiffs-Respondents, v. MILWAUKEE TRANSPORT SERVICES, INC., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

246 Wis.2d 433

2001 WI App 125

630 N.W.2d 536

Linda GRIFFIN and Jimmy Griffin, Plaintiffs-Respondents, v.MILWAUKEE TRANSPORT SERVICES, INC., Defendant-Appellant.

No. 00-0861.

Court of Appeals of Wisconsin.

Submitted on briefs February 8, 2001.

Decided May 15, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas A. Cabush of Kasdorf, Lewis & Swietlik, S.C., of Milwaukee.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of David A. Saichek of Saichek Law Offices, S.C., of Milwaukee.

Before Wedemeyer, P.J., Schudson and Curley, JJ.

¶ 1.CURLEY, J.

Milwaukee Transport Services, Inc.(the bus company) appeals the denial of its summary judgment motion seeking dismissal of Linda Griffin's lawsuit for her failure to commence suit within the six-month period required by WIS. STAT. § 893.80(1g).¹The bus company argues that the trial court erred in finding unconstitutional the statute's shortened six-month period for a claimant to sue a governmental body, after filing a notice of claim and injury and receiving a notice of disallowance.Griffin maintains that the statute is unconstitutional; however, she alternatively argues that the notice of disallowance sent to her was deficient.After applying the rational basis test to § 893.80(1g), we conclude that the statute is constitutional.We are also satisfied that the bus company gave proper notification.Thus, we reverse.

I.BACKGROUND.

¶ 2.Linda Griffin sued the bus company, claiming that she was injured on September 14, 1998, while a passenger on a county bus when it collided with another bus.Inasmuch as the bus company is an agent of Milwaukee County, Griffin was required to file a notice of injury and claim for damages pursuant to WIS. STAT. § 895.80(1)(a).Her attorney filed the notice with the Milwaukee County Clerk on October 8, 1998.The notice outlined the particulars of the accident and her injuries.The letter also stated, "This includes the claim of her husband, Jimmy Griffin."Later in the letter, Griffin outlined her damages: "That the damages for which claim is hereby made are as follows: $50,000.00 or less.Linda Griffin, for her neck and shoulder injuries, medical expenses, pain, suffering and any permanent residuals: and Jimmy Griffin for loss of society and companionship."The County Board disallowed Griffin's claim and, pursuant to WIS. STAT. § 893.80(1g), the Milwaukee County Clerk sent her a certified letter dated November 5, 1998, formally denying her claim.Griffin received the letter on November 6, 1998.

¶ 3.After receiving the letter disallowing her claim, Griffin did not file suit against the bus company until September 9, 1999.Shortly thereafter, the bus company filed an answer and a summary judgment motion seeking dismissal of the case.The bus company argued that Griffin failed to file her complaint within the six-month period specified in WIS. STAT. § 893.80(1g), as the six months expired on May 6, 1999.The trial court denied the bus company's summary judgment motion.The trial court concluded that the statutory scheme restricting Griffin's opportunity to bring suit to six months because she had been served with a notice of disallowance was unconstitutional.The trial court reasoned that because claimants who have not received a formal notice of disallowance of their claim are allowed three years to file suit, § 893.80(1g)'s six-month limitation violated the equal protection clause of the United States and Wisconsin Constitutions.The trial court found that no rational basis existed for the different time limitations.The trial court also expressed its concern that the notice was deficient.

II.ANALYSIS.

[1,2]

¶ 4.In an appeal from the denial of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under WIS. STAT. § 802.08.Delta Group, Inc. v. DBI, Inc.,204 Wis. 2d 515, 520, 555 N.W.2d 162(Ct App.1996).Further, we review statutory constitutional challenges de novo.Bethke v. Lauderdale of La Crosse, Inc.,2000 WI App. 107, ¶ 15, 235 Wis. 2d 103, 612 N.W.2d 332.Thus, this court gives no deference to the trial court's determination in this matter.

¶ 5.The bus company submits that the trial court erred in finding WIS. STAT. § 893.80(1g) unconstitutional.Specifically, the bus company argues that the trial court: (1) failed to apply the presumption of constitutionality; and (2) failed to require Griffin to prove the statute unconstitutional beyond a reasonable doubt.The bus company also argues that, while the trial court discussed whether a rational basis existed for the legislature's decision to impose different time limitations for bringing suits against governmental bodies depending on whether the claimants received a formal notice of disallowance, it erred in finding that no rational basis existed for the legislature's action.

¶ 6.Griffin responds, relying principally on Blackbourn v. School District of Onalaska,174 Wis. 2d 496, 497 N.W.2d 460(Ct. App.1993), that the statute is unconstitutional because it is unfair and unreasonable and fails the rational basis test.On appeal, Griffin also argues that the county's notice of disallowance did not trigger the six-month time period because the notice of disallowance was deficient.She submits that because the statute required the county to notify her that she had six months from the date of service of the notice to bring an action, and the county's notice advised Griffin that she had six months from the date of the notice,she has not been properly notified.Finally, Griffin argues that since the notice of disallowance was sent to her, and not to her attorney who filed the notice of claim and injury on her behalf, or to her husband, who was claiming a loss of consortium, the notice of disallowance's shorter time frame should not be enforced.We are not persuaded by any of her arguments.

A.Rational Basis Test

¶ 7.As noted, the trial court found WIS. STAT. § 893.80(1g) to be violative of the equal protection clause found in the United States and Wisconsin Constitutions.²[3]

¶ 8.A party seeking to have a statute found unconstitutional has a heavy burden.A statute enjoys a presumption that it is constitutional and a party challenging a statute must also prove that the statute is unconstitutional beyond a reasonable doubt.Sambs v. City of Brookfield,97 Wis. 2d 356, 370, 293 N.W.2d 504(1980).These rules apply to constitutional challenges based upon the equal protection clause as well.

We begin with the principle repeatedly stated by this court and the United States Supreme Court that all legislative acts are presumed constitutional, that a heavy burden is placed on the party challenging constitutionality, and that if any doubt exists it must be resolved in favor of the constitutionality of a statute.When the challenger asserts that a statutory classification is violative of the equal protection clause, he must prove abuse of legislative discretion beyond a reasonable doubt.

Stanhope v. Brown County,90 Wis. 2d 823, 837, 280 N.W.2d 711(1979).

¶ 9.The trial court made no mention of the presumption of constitutionality, nor did the trial court find that Griffin had proved the statute unconstitutional beyond a reasonable doubt.Thus, the record does not reflect that the trial court considered either the existence of the presumption or the high burden of proof.Rather, in finding the statute unconstitutional, the trial court erroneously determined that "the courts have made it exceedingly clear that the statute must be strictly construed against the governmental unit."The trial court then stated, "If that is the case, then this particular plaintiff needs to show no prejudice in receiving a notice that does not say that she has six months from it-this notice of disallowance."The trial court then adopted Griffin's argument, finding no rational basis for WIS. STAT. § 893.80(1g) based, principally, on the holding in Blackbourn.Our analysis of the proper legal doctrines and relevant case law leads us to a different conclusion.

¶ 10.WISCONSIN STAT. § 893.80(1g) reads:

Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits.

. . . .

(1g) Notice of disallowance of the claim submitted under sub. (1) shall be served on the claimant by registered or certified mail and the receipt therefor, signed by the claimant, or the returned registered letter, shall be proof of service.Failure of the appropriate body to disallow a claim within 120 days after presentation of the written notice of the claim is a disallowance.No action on a claim under this section against any defendant fire company, corporation, subdivision or agency nor against any defendant officer, official, agent or employe, may be brought after 6 months from the date of service of the notice of disallowance, and the notice of disallowance shall contain a statement to that effect.

The statute clearly sets out two different statutes of limitation—one for claimants who have received a notice of disallowance, and another for claimants who have not.From these separate classifications springs Griffin's equal protection argument.She argues that the six-month limitation on bringing suit is arbitrary and irrational because she only had six months to bring suit, while those who did not receive notification of disallowance after filing a claim have three years to bring suit.

[4,5]

¶ 11.When a statute is challenged on equal protection grounds, this court is obligated to apply a rational basis test to the statute."The appropriate test for review of the classification of governmental tortfeasors and their victims is whether there is a rational basis for the classification."Sambs,97 Wis. 2d at 370.The "rational basis" test was defined in McGowan v. Maryland,366 U.S. 420(1961):

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