Kelly v. Reyes, 91-2507

Decision Date22 April 1992
Docket NumberNo. 91-2507,91-2507
Citation484 N.W.2d 388,168 Wis.2d 743
PartiesEdmund KELLY, Plaintiff-Appellant, d v. Metodio M. REYES, M.D. and State of Wisconsin, Defendants-Respondents.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ronald Bornstein of Robert Silverstein & Associates, S.C. of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Peter C. Anderson, Asst. Atty. Gen.


BROWN, Judge.

Edmund Kelly appeals from judgments dismissing his malpractice action against a physician employed by the state of Wisconsin. The trial court dismissed the action because Kelly used regular mail, not certified mail to serve notice of his claim upon the attorney general. Because we agree with the trial court that sec. 893.82(5) strictly requires certified mail, we affirm the judgments.

While Kelly was an inmate at the Oshkosh Correctional Institution, he was treated by Metodio Reyes, M.D., for the removal of warts. Kelly alleges that Dr. Reyes negligently performed an electro-cauterization procedure which resulted in burning and scarring, eventually requiring plastic surgery.

Since Dr. Reyes was acting as a state employee, Kelly was required to serve a notice of claim upon the attorney general. Section 893.82(3), Stats. Kelly served this notice of claim by regular mail rather than by certified mail. The state moved for summary judgment arguing that sec. 893.82(5) requires the notice of claim to be served by certified mail. 1 The trial court granted the state's motion.

In reviewing a summary judgment, we follow the same methodology as the trial court. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). If there is no issue as to material facts, then we decide whether the moving party was entitled to judgment as a matter of law. Id.

Kelly argues that the state was not entitled to summary judgment as a matter of law because subsec. (5) providing for service by certified mail is to be liberally rather than strictly construed. He finds authority for liberal construction in sec. 893.82(1)(b), Stats. (1989-90), mandating liberal construction to effectuate the intent of the statute. 2 Since the intent of the statute is to give the attorney general notice of any legal claim against the state, Kelly claims that the purpose of the statute is met in his case because there is no dispute that the attorney general received notice from him by regular mail.

Kelly also contends that we mandated liberal construction of the statute in Daily v. University of Wisconsin, Whitewater, 145 Wis.2d 756, 429 N.W.2d 83 (Ct.App.1988). We concluded in Daily that our earlier decision in Yotvat v. Roth, 95 Wis.2d 357, 290 N.W.2d 524 (Ct.App.1980), which required strict construction of the statute, was no longer applicable because 1983 legislative amendments had added the liberal construction provision of subsec. (1)(b). See Daily, 145 Wis.2d at 759-61, 429 N.W.2d at 84-85.

The trial court in the instant case concluded that the holding of Daily permitting substantial compliance was limited to subsec. (3) of the statute, which describes the required content of the notice, but that the certified mail provision in subsec. (5) should be strictly construed. We agree.

In Daily, the plaintiff was unable to comply with the requirement in subsec. (3) that he identify the official responsible for his injury until he conducted discovery. Thus, we held that his notice of claim without that information was in substantial compliance with the statute. However, we have indicated since Daily that even some parts of subsec. (3) require strict compliance. In Renner v. Madison Gen. Hosp., 151 Wis.2d 885, 889, 447 N.W.2d 97, 99 (Ct.App.1989), we held that the provision regarding time for filing a notice must be strictly construed.

Kelly's case differs from Daily because here there is a defect in service, not a defect in the informational content of the claim. The supreme court has held that an action will be dismissed for failure to comply with a statutory service requirement. See 519 Corp. v. DOT, 92 Wis.2d 276, 287, 284 N.W.2d 643, 649 (1979).

Strict construction is appropriate for policy reasons. Strict construction of the plain, mandatory language of subsec. (5) helps to maintain a simple, orderly, and uniform way of conducting legal business. See 519 Corp., 92 Wis.2d at 288, 284 N.W.2d at 649. If only substantial compliance with subsec. (5) were permitted, the certainty created by the requirement of certified mailing would be replaced by the costly uncertainty of a case-by-case determination of whether a notice of claim was in fact sent and received and whether...

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9 cases
  • Sorenson v. Batchelder, 2014AP1213.
    • United States
    • Wisconsin Supreme Court
    • 12 Mayo 2016
    ...serve notice of claim on the attorney general by certified mail pursuant to the plain language of § 893.82(5). Kelly v. Reyes, 168 Wis.2d 743, 747, 484 N.W.2d 388 (Ct.App.1992) (holding that service by regular mail did not strictly comply with the certified mail requirement even though the ......
  • Hines v. Resnick
    • United States
    • Wisconsin Court of Appeals
    • 23 Noviembre 2011
    ...general's office to easily identify mail whose contents are legal in nature and require immediate attention.” Kelly v. Reyes, 168 Wis.2d 743, 748, 484 N.W.2d 388 (Ct.App.1992). The certified-mail requirement also helps to promote a simple, orderly, and uniform way of conducting legal busine......
  • Kellner v. Christian
    • United States
    • Wisconsin Supreme Court
    • 21 Noviembre 1995 each and every requirement in the statute. The court of appeals came to an identical conclusion in Kelly v. Reyes, 168 Wis.2d 743, 746-47, 484 N.W.2d 388, 389 (Ct.App.1992), in which the court strictly construed the same statute at issue in the present case. Section 893.82(5) requires a ......
  • Soderlin v. Doehling
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 7 Julio 2021
    ...concluding that personal service did not comply with certified mail requirement in § 893.82(5)); see also Kelly v. Reyes, 168 Wis. 2d 743, 744, 484 N.W.2d 388, 388 (Ct. App. 1992) (affirming dismissal of action where plaintiffused "regular mail, not certified mail to serve notice of his cla......
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