Kramer v. Sedalik, 90-2475

• Court: Court of Appeals of Wisconsin
• Citation: 473 N.W.2d 610,163 Wis.2d 966
• Decision Date: 05 June 1991
• Docket Number: No. 90-2475,90-2475
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. ESTATE OF Susan Marie KRAMER, John A. Kramer, Baxter Health Care Corporation and State Farm Insurance Company, Plaintiffs, v. Dorothy K. SEDALIK, Chicago Motor Club Insurance Co., Hoffman Construction Company, Transcontinental Insurance Company, the Dionne Corporation, Sphere Drake Insurance Company, Barrientos & Associates Incorporated, National Union Fire Insurance Company of Pittsburgh, Pa and St. Paul Fire and Marine Insurance Company, Defendants, Barrientos & Associates Incorporated, Defendant-Third Party Plaintiff-Appellant, v. Dave TAMBLYN and Elmer E. Schultz, Third Party Defendants-Respondents, Bell Helmets, Inc., Third Party Defendant.

Page 610

473 N.W.2d 610 163 Wis.2d 966 NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. ESTATE OF Susan Marie KRAMER, John A. Kramer, Baxter Health
Care Corporation and State Farm Insurance Company,
Plaintiffs,
v.
Dorothy K. SEDALIK, Chicago Motor Club Insurance Co.,
Hoffman Construction Company, Transcontinental Insurance
Company, the Dionne Corporation, Sphere Drake Insurance
Company, Barrientos & Associates Incorporated, National
Union Fire Insurance Company of Pittsburgh, Pa and St. Paul
Fire and Marine Insurance Company, Defendants,
Barrientos & Associates Incorporated, Defendant-Third Party
Plaintiff-Appellant,
v.
Dave TAMBLYN and Elmer E. Schultz, Third Party Defendants-Respondents,
Bell Helmets, Inc., Third Party Defendant. No. 90-2475. Court of Appeals of Wisconsin. June 5, 1991.

Appeal from an order of the circuit court for Kenosha county: Jerold W. Breitenbach, Judge.

Circuit Court, Kenosha County.

AFFIRMED.

Before NEAL NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

PER CURIAM.

Barrientos & Associates Incorporated (Barrientos) appeals from an order dismissing its third-party complaint for failing to follow sec. 893.82, Stats. On appeal, Barrientos raises three constitutional challenges to the statute. We do not reach the merits of these challenges because Barrientos gave no notice under the statute. We therefore affirm the order of the circuit court.

In November 1989, the estate of Susan Marie Kramer commenced this wrongful death action against a variety of defendants including, ultimately, Barrientos. The estate alleged that the defendants' combined negligence caused the car accident that killed Kramer in May of 1989. In July 1990, Barrientos filed a third-party complaint for contribution against Dave Tamblyn and Elmer Schultz, two state employees who had worked on the construction project where the accident occurred and upon which Barrientos had served as a consultant. Barrientos did not file a notice of claim for contribution as required by sec. 893.82, Stats. Tamblyn and Schultz moved to dismiss the third-party complaint on that basis. Barrientos' responsive brief argued that the statute is unconstitutional because the statutory time limit "within which to file a notice expired on September 24, 1989, two months before the plaintiff brought its action ... and six months before Barrientos was...