Lak v. Richardson-Merrell, Inc., RICHARDSON-MERREL

• Decision Date: 03 March 1981
• Docket Number: INC,No. 79-1124,RICHARDSON-MERREL,79-1124
• Parties: Josef LAK and Maria Lak, Plaintiffs-Appellants-Petitioners, v., a foreign corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 483

302 N.W.2d 483

100 Wis.2d 641

Josef LAK and Maria Lak, Plaintiffs-Appellants-Petitioners, v. RICHARDSON-MERRELL, INC., a foreign corporation, Defendant-Respondent.

No. 79-1124.

Supreme Court of Wisconsin.

Argued Feb. 9, 1981.

Decided March 3, 1981.

E. Campion Kersten (argued), and Kersten & McKinnon, Milwaukee, on brief, for petitioners.

L. C. Hammond, Patrick W. Schmidt (argued), Gerald G. Miller and Quarles & Brady, Milwaukee, on brief, for defendant-respondent.

STEINMETZ, Justice.

This is a review of the court of appeals affirmance of the trial court's order granting a motion to dismiss the complaint in favor of the defendant, Richardson-Merrell, Inc.

The action is for personal injuries allegedly sustained by the plaintiff, Josef Lak, as a result of being inoculated on November 24, 1975, with a claimed defective flu vaccine manufactured by the defendant, Richardson-Merrell, Inc., and administered to the plaintiff by his employer.

The summons and complaint were filed on November 24, 1978, naming as defendant the company which manufactured and sold the flu vaccine to the employer with which the plaintiff was inoculated. The plaintiffs did not then know the actual name of the defendant and therefore a fictitious name, "XYZ Drug Company, a foreign or domestic corporation" was used in the initial pleadings.

The fictitious name for the defendant was used by the plaintiff pursuant to sec. 807.12(1), Stats. ¹

Shortly after filing the summons and complaint, the plaintiffs learned the name of the drug manufacturer from the employer. The plaintiffs applied for and were granted leave to amend the pleadings to allege the defendant's true name by order of the trial court dated January 9, 1979, as set forth in sec. 807.12(2), Stats. ²

Amended pleadings were served upon the defendant through its registered agent on January 11, 1979, 48 days after the original filing of the action and within the 60-day period for service allowed by secs. 801.02(1) and 893.02, stats. ³

The defendant moved to dismiss on the ground the action was barred by the statute of limitations, sec. 893.205, Stats.1977. ⁴

The trial court granted defendant's motion to dismiss relying on sec. 893.205, Stats.1977, which limits personal injury actions to being commenced within three years or be barred. ⁵ The trial court held that filing the complaint with a fictitious name for the defendant within the three years but serving it on the known defendant after the three years by 48 days was beyond the statute of limitations. That court also held sec. 802.09(3), Stats., ⁶ providing for an amendment to the complaint which relates back to the original complaint, did not apply.

The court of appeals affirmed the trial court finding also the statute of limitations of three years applied and relation back to the original complaint was not available to the plaintiff. We reverse the court of appeals, 95 Wis.2d 659, 291 N.W.2d 620.

The relation back statute, sec. 802.09(3), Stats., is not applicable in this case. For a full discussion of relation back see Wussow v. Commercial Mechanisms, Inc., 97 Wis.2d 136, 293 N.W.2d 897 (1980).

This is not a case of a change of parties or mistaken identity of a party. The plaintiff intentionally and deliberately on the last day of the three-year statute of limitation filed the summons and complaint identifying the defendant with a fictitious name "XYZ Drug Company." The plaintiff stated in the complaint that he was using a fictitious name for the defendant pursuant to sec. 807.12, Stats., and that "the name, address, registered agent and state of incorporation are unknown to the plaintiffs." The plaintiff then stated four causes of action, one for negligence, another in strict liability and the other two on behalf of Mrs. Lak. These facts identified the defendant and its alleged acts by all but name which was then unknown to the plaintiff.

In doing this the plaintiffs complied with sec. 807.12(1), Stats., by using a fictitious name when the name of the defendant was not known with a description of the activities of the defendant to indicate the defendant intended to be named later.

When the identity of the defendant was learned through the plaintiff's employer, the plaintiff moved the trial court under the provisions of sec. 807.12(2), Stats., for an order inserting the defendant's true name.

Service was accomplished on the defendant within the 60-day period for service allowed by secs. 801.02(1) and 893.02, Stats.

The defendant opines that the three-year statute of limitations could not be extended for the 60-day period for service. The defendant claims this would interfere with its vested right of the termination of the liability exposure at three years. Also, the defendant argues that to grant the plaintiff's position would be to find that this court's adoption of the Code of Civil Procedure changing commencement of an action to the filing of the summons and complaint from the service of the complaint would affect the defendant's substantive rights and this was prohibited by sec. 251.18, Stats.1973 (now sec. 751.12, Stats.). ⁷

The present provisions for commencement of an action appeared as Wisconsin Rules of Civil Procedure on February 17, 1975. (67 Wis.2d 585 (1975)). The legislature adopted these rules as statutes with minor amendments in the Laws of 1975, ch. 218, effective April 23, 1976.

Former sec. 893.39, Stats.1973, ⁸ provided an action was commenced, within the meaning of any provisions of law limiting the time for commencement, when the summons was served on a defendant or a co-defendant united in interest. Under that section, service had to be within the limitation period or the complaint had to be dismissed. This section was repealed when the new code of procedure was adopted.

Sec. 893.40, Stats.1973, now repealed, considered the action commenced, for purposes of the statute of limitations, when the summons was delivered to the sheriff within the appropriate limit with the intent it should be served. ⁹ Therefore, under the old procedures, the plaintiff, had 60 days more than the limit of the statute of limitations by delivering the summons to the sheriff on the last day available. The new code of procedure does no more nor less.

The facts giving rise to the instant action occurred on November 24, 1975, and therefore the three-year statute of limitation began to run at that time. The three-year limitation did not end until November 24, 1978, the day on which the action was commenced.

This court ruled in Heifetz v. Johnson, 61 Wis.2d 111, 115, 211 N.W.2d 834 (1973), that:

"In Wisconsin the running of the statute of limitations extinguishes not only the right of action but also the cause of action.

" ' "In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection ...." ' " (citing from Haase v. Sawicki, 20 Wis.2d 308, 311, 312, 121 N.W.2d 876 (1963)).

Further in the Heifetz case 61 Wis.2d at page 117, 211 N.W.2d 834, the court stated, "It is clear that an action must be commenced within the period limited by law."

In Ortman v. Jensen & Johnson, Inc., 66 Wis.2d 508, 522, 225 N.W.2d 635 (1975), the court held:

"The right which is subject to constitutional protection is that which vests at the time the statute runs, not before. In Haase v. Sawicki, supra, this court held that a retrospective extension of the statute of limitations for wrongful death, made applicable to actions which were already barred by the previous shorter period, violated due process. An extension of the statute of limitations, before the cause of action even accrued, is not subject to the same constitutional limitation."

The defendant's right to rely on the statute of limitations did not become vested until after November 24, 1978. Before that time, the change in the civil procedure rules did not affect defendant's protected rights since they had not risen to the sanctified position of being vested and final.

Secs. 801.02 and 893.02, Stats., state an action is commenced when the summons and complaint are filed but the action is not deemed commenced as to any defendant if the authenticated copies of the summons and complaint are not served on any defendant within 60 days after filing.

Considering secs. 801.02 and 893.02, Stats., together, the law is that an action is commenced for purposes of a statute of limitations if the summons and complaint are filed with the court before the statutory period has passed and the court then has subject matter jurisdiction. The plaintiff then has 60 more days to obtain jurisdiction over the person of any defendant in the action (in personam jurisdiction). This is no greater time than the plaintiff had under the old section 893.40.

This defendant is in no worse position as to notice than it would have been had it been named accurately in the first summons and complaint instead of by a fictitious name. It would not have had notice of the action in either event until being served.

The decision of the court of appeals is reversed.

BEILFUSS, C. J., not participating.

1 "807.12 Suing by fictitious name or as unknown; partners' names unknown. (1) When the name or a part of the name of any defendant, or when any proper party defendant to an action to establish or enforce, redeem from or discharge a lien or claim to property is unknown to the plaintiff, such defendant may be designated a defendant by so much of the name as is known, or by a fictitious name, or as an unknown heir, representative, owner or person as the case may require, adding such description as may reasonably indicate the person intended. But...