Guertin v. Harbour Assur. Co. of Bermuda, Ltd., 85-2316

• Decision Date: 03 December 1987
• Docket Number: No. 85-2316,85-2316
• Citation: 415 N.W.2d 831,141 Wis.2d 622
• Parties: Frank G. GUERTIN, Plaintiff-Appellant, v. HARBOUR ASSURANCE COMPANY OF BERMUDA, LTD., International Harvester Company, Royal Insurance Company of America, Ryder Truck Rental, Inc., Edward Krissman, ABC Insurance Company and XYZ Corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 831

415 N.W.2d 831

141 Wis.2d 622

Frank G. GUERTIN, Plaintiff-Appellant, v. HARBOUR ASSURANCE COMPANY OF BERMUDA, LTD., International

Harvester Company, Royal Insurance Company of America, Ryder

Truck Rental, Inc., Edward Krissman, ABC Insurance Company

and XYZ Corporation, Defendants-Respondents.

No. 85-2316.

Supreme Court of Wisconsin.

Argued Oct. 6, 1987.

Opinion Filed Dec. 3, 1987.

Dean M. Horwitz (argued), Milwaukee, for plaintiff-appellant-petitioner; Hope K. Olson and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, on brief.

Frank J. Daily (argued), Milwaukee, for defendants-respondents; Michael J. Gonring and Quarles & Brady, Milwaukee, and Douglas J. Carroll, Arnold, Murray, O'Neill & Schimmel, Milwaukee, on brief.

DAY, Justice.

This is a review of a decision of the court of appeals, Guertin v. Harbour Assurance Co. of Bermuda, 135 Wis.2d 334, 400 N.W.2d 56 (Ct.App.1986), which affirmed a summary judgment granted by the circuit court for Milwaukee county, Judge Ralph Adam Fine presiding. The summary judgment dismissed the complaint of the plaintiff, Frank G. Guertin (Guertin), a Wisconsin resident, for personal injuries he sustained in Illinois. We conclude, as did the court of appeals, that the circuit court properly applied Wisconsin's "borrowing statute," sec. 893.07(1), Stats., ¹ barring Guertin's tort action because the statutory limitation period adopted by that statute had expired.

The facts of this case are not in dispute. On February 15, 1982, Guertin, a truck driver, was injured in the state of Illinois when he slipped and fell off a fuel tank of a semi-tractor he was employed to drive. He commenced an action in Milwaukee county circuit court on October 22, 1984, alleging negligence and strict liability in tort. Named as defendants were International Harvester Company, which did business in Wisconsin and was the designer and manufacturer of the semi-tractor, Ryder Truck Rental, Inc., which sold or leased the semi-tractor to Guertin's employer and also did business in Wisconsin, Royal Insurance Company of America, which was Ryder's liability insurer, and JWI Trucking, Inc., the Wisconsin corporation which employed Guertin. On February 14, 1985, an amended summons and complaint were filed, adding Edward Krissman, a mechanic employed by Ryder who maintained and serviced the semi-tractor in Wisconsin, and Harbour Assurance Company of Bermuda, International Harvester's excess liability insurance carrier, as additional defendants.

International Harvester, joined by Ryder Truck Rental and Mr. Krissman, moved to dismiss Guertin's complaint claiming that his cause of action was barred under Wisconsin's borrowing statute, sec. 893.07, Stats., by an Illinois two-year statute of limitations. ² They argued this statute was applicable because Guertin's claim for personal injuries sustained in Illinois was a "foreign cause of action," and under this statute, the shorter two-year Illinois statute would be applied rather than Wisconsin's three-year personal injury statute of limitations, sec. 893.54, Stats. ³ Harbour Assurance moved to dismiss on the grounds of misjoinder and lack of personal jurisdiction.

The circuit court granted International Harvester's motion and denied Guertin's motion for reconsideration, finding that the action was barred by the statute of limitations imposed under sec. 893.07, Stats. The court declined to rule on Harbour Assurance's motion. Judgment was entered dismissing the action with prejudice as to all parties. Guertin appealed and the court of appeals affirmed the judgment of the circuit court. Guertin then petitioned this court for review.

The first question is whether Guertin's tort claims constitute a "foreign cause of action" within the meaning of Wisconsin's borrowing statute, sec. 893.07, Stats. Guertin alleges that the circuit court improperly interpreted the borrowing statute to preclude his action when it concluded that a "foreign cause of action" existed merely because he was injured outside the state of Wisconsin. He contends a grouping or assessment of significant contacts underlying his action should have been made, and that under such a test his claims would not amount to a "foreign cause of action," but one most significantly related to Wisconsin. Therefore, he argues, Wisconsin's statute of limitations should apply. He further argues that the place of injury is mere happenstance and should not be the determinative factor in making this assessment because it would amount to a return to the "mechanical" doctrine of lex loci delicti, which this court specifically abandoned in Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965).

Respondents counter that the place of injury is the place a cause of action in tort arises. They assert that the plain meaning and legislative intent of sec. 893.07, Stats., adequately define "foreign cause of action" to mean an action for any injury to a person which arises outside this state. For any such injury occurring outside Wisconsin, the borrowing statute directs that the shorter limitation period, either Wisconsin's or the state where the injury arose, be adopted. As a result, they claim that the circuit court properly applied the Illinois limitation period adopted by Wisconsin's borrowing statute for Guertin's injury which occurred in Illinois, and correctly determined that Guertin was not eligible to bring his action here because it was untimely filed.

Resolving this issue requires an interpretation of the language of the borrowing statute, sec. 893.07, Stats., which this court has not previously analyzed. The construction of a statute or the application of a statute to a particular set of facts is a question of law which appellate courts may review without deference to lower courts' reasoning. Bucyrus-Erie Co. v. State Indus. Labor & Human Relations Dept., 90 Wis.2d 408, 417, 280 N.W.2d 142, 146-47 (1979); State v. Wittrock, 119 Wis.2d 664, 669, 350 N.W.2d 647, 650 (1984).

The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. In determining legislative intent, first resort is to the language of the statute itself. If the meaning of the statute is clear on its face, this court will not look outside the statute in applying it. If the statutory language is ambiguous, this court attempts to ascertain the legislature's intent by the scope, history, context, subject matter and object of the statute. A statute is ambiguous if it is capable of being understood by reasonably well-informed persons in either two or more senses. In Interest of P.A.K., 119 Wis.2d 871, 878-79, 350 N.W.2d 677, 681-82 (1984) (citations omitted.)

The phrase, "foreign cause of action," was not used by the legislature prior to the enactment of sec. 893.07, Stats., and is not expressly defined in that statute. We find this phrase may reasonably convey two different meanings. A "foreign cause of action" might be one which exists because of significant contacts with another jurisdiction. It may also describe any action where injury arises outside the forum state. We, therefore, turn to extrinsic sources to determine what the legislature meant by the phrase.

In 1979, the legislature restructured Chapter 893, Limitations of Commencement of Actions and Proceedings and Procedure for Claims Against Governmental Units. Within that comprehensive revision, the Judicial Council redrafted Wisconsin's borrowing statute, sec. 893.205, Stats., renumbering it to sec. 893.07. The "written comments of legislatively created advisory committees are relevant in construing statutes and ascertaining the legislative intent of statutes recommended by such committees." Champlin v. State, 84 Wis.2d 621, 625, 267 N.W.2d 295, 297 (1978). The Judicial Council Committee's Note to the newly-enacted sec. 893.07, Stats., stated:

"Sub. (1) applies the provision of s. 893.05 that the running of a statute of limitations extinguishes the right as well as the remedy to a foreign cause of action on which an action is attempted to be brought in Wisconsin in a situation where the foreign period has expired. Sub. (1) changes the law of prior s. 893.205(1), which provided that a resident of Wisconsin could sue in this state on a foreign cause of action to recover damages for injury to the person even if the foreign period of limitation had expired.

Sub. (2) applies the Wisconsin statute of limitations to a foreign cause of action if the Wisconsin period is shorter than the foreign period and the Wisconsin period has run. (emphasis added.)

Former sec. 893.205(1) did not use the phrase "foreign cause of action." Rather, it stated, in pertinent part:

"But no action to recover damages for injuries to the person, received without this state, shall be brought in any court in this state when such action is barred by any statute of limitations of actions of the state or country in which such injury was received unless the person so injured shall, at the time of such injury, have been a resident of this state." (emphasis added.)

The Committee's Note for Chapter 893 further provides, "The previous provisions of ch. 893 are found in the recreated chapter in the same form that they previously existed or are redrafted only for greater clarity and ease of application except as otherwise noted." (emphasis added). It is apparent from the Committee's comments that the Council considered the phrase "foreign cause of action" to be synonymous with the language of the former borrowing statute, sec. 893.205(1), Stats. (1977), which barred actions "for injuries to the person, received without this state."

The Seventh Circuit Court of Appeals, applying Wisconsin law to resolve the interpretation of the phrase "foreign cause of action," concluded in Johnson v. Deltadynamics, Inc., 813 F.2d 944, 945 (7th Cir.1987), that the Judicial Council Committee's Note, using the phrase "foreign cause of action" in place of former...