Gutter v. Seamandel
| Decision Date | 30 June 1981 |
| Docket Number | No. 80-1168,80-1168 |
| Citation | 103 Wis.2d 1,308 N.W.2d 403 |
| Parties | Floyd R. GUTTER and Bobbie B. Gutter, Plaintiffs-Appellants-Petitioners, v. John R. SEAMANDEL and City of Milwaukee, a municipal corporation, Defendants- Respondents. |
| Court | Wisconsin Supreme Court |
James W. McCann (argued), Milwaukee, for plaintiffs-appellants-petitioners; Law Offices of Alvin H. Eisenberg, S. C., Milwaukee, on brief.
Gregg J. Gunta, Asst. City Atty. (argued), for defendants-respondents; James B. Brennan, City Atty., Milwaukee, on brief.
This is a review of an unpublished decision of the court of appeals filed October 16, 1980, affirming the judgment of the circuit court for Milwaukee County, Laurence C. Gram, Jr., Circuit Judge.
The question on review is whether the plaintiffs, Floyd and Bobbie Gutter, complied with the applicable statutes to maintain a tort action against the defendants City of Milwaukee and John R. Seamandel, a City of Milwaukee police officer. The circuit court granted summary judgment in favor of both defendants holding that neither plaintiff could maintain an action because each failed to present a claim against the city demanding a specific dollar amount. The court of appeals summarily affirmed, sec. (Rule) 809.21, Stats. 1979-80, the judgment of the circuit court. We reverse the decision of the court of appeals as to plaintiff Floyd R. Gutter; we reverse the decision of the court of appeals as it relates to Bobbie Gutter's cause of action against the city employee; and we affirm the decision of the court of appeals as it relates to Bobbie Gutter's cause of action against the city.
We begin by reciting the relevant facts. The action arises from a December 23, 1976, collision between two automobiles, one driven by the plaintiff Floyd R. Gutter, the other by the defendant John R. Seamandel, a police officer. One week later, on December 30, 1976, counsel for plaintiff Floyd Gutter sent the following letter to the city clerk for the City of Milwaukee:
EISENBERG, S.C.
The following correspondence ensued between the parties or their agents subsequent to the December 30 letter.
On January 7, 1977, the city attorney's office wrote to the Underwriters Adjusting Company, a claims adjuster under contract with the City of Milwaukee, forwarding the correspondence relating to the accident in regard to Floyd Gutter and Gutter's passenger (who is not involved in this review). On January 24, 1977, Underwriters wrote plaintiffs' attorney acknowledging receipt of "your letter of retainer dated December 30, 1976, directed to the City of Milwaukee." The letter requested plaintiffs' attorney to contact the adjuster to discuss the matter.
On February 15, 1977, two documents, both entitled "Notice of Claim and Demand for Damages," were served upon the Milwaukee city clerk, one naming Floyd Gutter as claimant; and the other naming Bobbie Gutter as claimant. Each document described the accident and each stated that the claimant had been damaged in excess of $25,000.00. Bobbie Gutter, the wife of Floyd Gutter, claimed loss of society. On February 16, 1977, the Milwaukee city attorney's office forwarded these notices to Underwriters for its consideration. By letter dated December 8, 1977, referring specifically to Floyd Gutter's claim and that of another individual not involved in this review, Underwriters advised plaintiffs' attorney that the Milwaukee city attorney's office had instructed Underwriters that the city attorney's office would thereafter negotiate with all claimants' attorneys. Underwriters requested plaintiffs' counsel to
On December 21, 1977, plaintiffs' attorney sent a demand letter addressed to the Milwaukee city attorney's office on behalf of Floyd R. Gutter. That letter set forth the facts of the accident, the personal injuries suffered and the special damages. The letter demanded $14,602.02 on Floyd R. Gutter's behalf.
On December 21, 1979, the plaintiffs commenced this action and on February 22, 1980, the city filed a motion for summary judgment which was granted. 1
We shall consider three issues which are raised on this review: (1) Should the complaint against the city be dismissed on the ground that the plaintiffs failed to present their claims to the city as required by the statutes? (2) Should the complaint against the individual defendant be dismissed on the ground that plaintiffs failed to present their claims to the city as required by the statutes? and (3) Should the complaint against the city be dismissed on the ground that the action was not commenced within the time required by statute?
The circuit court and the court of appeals dismissed the complaint on the ground that the plaintiffs failed to present their claims to the city as required by secs. 345.05 and 62.25, Stats.1975.
Sec. 345.05, Stats.1975, is entitled "State and Municipal Liability for Motor Vehicle Accidents." Subsection (3)(c), governing the manner and form of and the place for filing claims against a city, provides as follows:
The referenced sec. 62.25, Stats.1975, is part of chapter 62, Stats.1975, relating to cities, and the section is entitled "Claims and Actions." Sec. 62.25(1)(a) appears to be a provision to which sec. 345.05(3)(c) might be referring. Sec. 62.25(1)(a), Stats.1975, states:
2
We consider first whether plaintiff Floyd Gutter has, by any document described above, presented a proper claim to the city. We begin by looking at the December 30, 1976, letter.
The December 30, 1976, letter was addressed to the city clerk as required by sec. 345.05(3)(c). While the December 30, 1976, letter did not state Floyd Gutter's address, it did include his attorney's address. Sec. 62.25(1)(c), Stats.1975, presumes that the claimant will state his or her address in the claim. The inclusion of the attorney's address, however, constitutes substantial compliance with sec. 62.25(1)(c) and entitles the claimants to service of a notice of disallowance. Cf. Novak v. Delavan, 31 Wis.2d 200, 210, 143 N.W.2d 6 (1966).
The December 30, 1976, letter also stated the date and location of the accident, the parties involved, the ground on which the claim was founded, and a demand "at this time ... (for) $25,000.00 for the injuries and property damage resulting from this accident." The circuit court and court of appeals apparently concluded that the December 30, 1976, letter failed to state a specific dollar amount for the injuries and was therefore fatally defective. 3
This court has in numerous cases held that implicit in the claim statute is the requirement that a claim set forth a specific dollar amount. This court has reasoned that the purpose of the statute requiring claims to be presented to the municipality is to afford the municipality an opportunity to compromise the claim and settle it without a costly and expensive lawsuit. This purpose, we have said, cannot be served unless the claim presented demands a specific sum of money. Veith v. Joint School District No. 6, 54 Wis.2d 501, 506, 507, 196 N.W.2d 714 (1972) (); Sambs v. Nowak, 47 Wis.2d 158, 166, 177 N.W.2d 144 (1970) (); Schwartz v. City of Milwaukee, 43 Wis.2d 119, 124, 168 N.W.2d 107 (1969) (); Colburn v. Ozaukee County, 39 Wis.2d 231, 237-239, 159 N.W.2d 33 (1967) (); Pattermann v. City of Whitewater, 32 Wis.2d 350, 354, 358, 145 N.W.2d 705 (1966) .
The phrase "at this time" in the December 30 letter is troublesome because it is equivocal. The inclusion of the phrase "at this time" before the statement of the specific amount might be read to mean that a mere estimate has been stated and...
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