Modica v. Verhulst

Decision Date29 June 1995
Docket NumberNo. 94-2756,94-2756
Citation536 N.W.2d 466,195 Wis.2d 633
Parties, 102 Ed. Law Rep. 810 Richard F. MODICA, Executor of the Estate of Sherrill A. Modica, Deceased, Richard F. Modica, and Melissa Modica, Plaintiffs-Appellants-Cross Respondents, d v. Doug VERHULST, Defendant-Respondent-Cross Appellant.
CourtWisconsin Court of Appeals

For the plaintiffs-appellants-cross respondents the cause was submitted on the briefs of Steven J. Schaefer of Madison and Daniel T. Williams, Jr. of Rockford, IL.

For the defendant-respondent-cross appellant the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and David T. Flanagan, Asst. Atty. Gen.



Plaintiffs appeal from an order dismissing their medical malpractice claim against Doug Verhulst, a radiology technician employed at

the University of Wisconsin Hospitals and Clinics (UWH). The trial court dismissed the action because the plaintiffs' notice of claim served upon the attorney general did not state Verhulst's name. We conclude that § 893.82(2m) and (3), STATS., requires that the names of persons involved in the circumstances of the claim be stated in the notice of claim. Because the first notice of claim did not contain Verhulst's name and the amended notice of claim was untimely, we affirm the trial court's order. Verhulst, on cross-appeal, contends that the trial court erroneously exercised its discretion when it awarded attorney fees and costs against Verhulst's attorney (the attorney general's office) for failure to comply with a pretrial order. We conclude this was not an erroneous exercise of discretion and affirm the order awarding attorney fees and costs.


The pertinent facts are not in dispute. On March 25, 1991, Sherrill Modica was injured when she fell while being transferred from an X-ray examination table in the UWH Radiology Department to her wheelchair. On September 11, 1991, Modica, 1 Richard Modica and Melissa Modica served a Notice of Claim of Injury and Claim for Damages on the attorney general's office by certified mail. The notice was addressed to the attorney general, to various named individuals, and to various unnamed persons described by job position. One of the unnamed addressees was: "Unknown Radiology Technician or Technicians, 600 Highland Avenue, Madison, Wisconsin 53792-0001." The notice described the incident, including the involvement of an "unknown radiology technician." 2

Plaintiffs filed this action on January 13, 1992. The initial complaint named UWH and John and Jane Doe as defendants. Plaintiffs served interrogatories on UWH by letter dated January 14, 1992, one of which asked for the full name and complete last-known address of each and every person who was employed in the UWH Radiology Department and who actively worked in that department on March 25, 1991. The response, dated April 7, 1992, stated the names and addresses of three employees who were involved in the radiology care of Sherrill Modica on March 25, 1991. Two were physicians and the third was Doug Verhulst. On June 4, 1993, plaintiffs filed an amended complaint naming Doug Verhulst as a defendant instead of John and Jane Doe. Plaintiffs served an Amended Notice of Claim of Injury and Claim for Damages, dated August 27, 1992, on the attorney general's office by certified mail. The content of the amended notice as it concerns this dispute was the same as that of the first notice, except that the name and address of Doug Verhulst was added to the list of addressees.

Verhulst moved for summary judgment on the ground that the September 11, 1991 notice of claim did not comply with § 893.82(3), STATS., as to Verhulst because it did not state his name. The trial court granted the motion and dismissed the action. Plaintiffs argue on appeal that at the time the injury The construction of a statute when the facts are not disputed presents a question of law, which this court decides de novo, without deference to the trial court's determination. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). In construing a statute, our purpose is to ascertain and give effect to the legislative intent. State ex rel. Dieckhoff v. Severson, 145 Wis.2d 180, 189, 426 N.W.2d 71, 73 (Ct.App.1988). We look first to the language of the statute and if that is unambiguous, our duty is to give the language its ordinary meaning. Id. at 189-90, 426 N.W.2d at 73. Whether a statute has retroactive or prospective application is also a question of law that we decide de novo. Salzman v. DNR, 168 Wis.2d 523, 528, 484 N.W.2d 337, 339 (Ct.App.1992).

occurred, strict compliance with § 893.82(3) was not required and therefore the first notice of claim, coupled with the amended notice of claim, was sufficient. Alternatively, plaintiffs argue that even if they had to strictly comply with § 893.82(3), they did so.


At the time the injury occurred, March 25, 1991, and since that date, § 893.82(3), STATS., has provided that no civil action may be brought against a state employee for acts arising out of his or her duties unless, within the prescribed time period, 3 "the claimant ... serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event ... and the names of persons involved, including the name of the state officer, employe or agent involved." 4 However, since the date of the injury, there have been changes in other subsections of § 893.82 that affect the interpretation of § 893.82(3).

The version of § 893.82(1), STATS., in effect on March 25, 1991, provided:

(a) The purposes of this section are to:

1. Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.

2. Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.

3. Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employe or agent.

(b) The provisions of this section shall be liberally construed to effectuate this intent.

Section 893.82(1), 1989-90. This section was enacted by 1983 Wis.Act 27, § 1782.

Effective August 15, 1991, § 893.82(1)(b), STATS., was repealed and § 893.82(2m) was added, providing that "No claimant may bring an action against a state officer, employe or agent unless the claimant complies strictly with the requirements of this section." 5

Our decisions interpreting § 893.82(3), STATS., illustrate the difference between a liberal and a strict construction of its requirements. Prior to the 1983 enactment of § 893.82(1)(b), we held that "substantial compliance" with § 895.45, STATS., the predecessor to § 893.82(3), was insufficient. Yotvat v. Roth, 95 Wis.2d 357, 361, 290 N.W.2d 524, 527 (Ct.App.1980). Following Yotvat, we held in Protic v. Castle Co., 132 Wis.2d 364, 392 N.W.2d 119 (Ct.App.1986), that a notice of claim complied with § 893.82(3) only as to the one state employee referred to by name. Id. at 369, 392 N.W.2d at 122. The notice of claim was insufficient, we held, as to other employees who were referred to as nurses and other hospital personnel who had attended the plaintiff during a particular time and who were, according to plaintiff, named in the medical records attached to the notice of claim. Id.

Then, in Daily v. University of Wisconsin, Whitewater, 145 Wis.2d 756, 429 N.W.2d 83 (Ct.App.1988), we considered the effect of § 893.82(1)(b), STATS., which had been enacted after Yotvat and prior to Protic, although not brought to our attention in Protic. Id. at 759, 429 N.W.2d at 84. In Daily, the notice of claim set forth the time, date, location and circumstances of the injury, but named only the State of Wisconsin and the University of Wisconsin--Whitewater as the responsible parties. We concluded, in view of the "liberal construction" language in § 893.82(1)(b), that this notice of claim substantially complied with § 893.82(3). Id. at 762, 429 N.W.2d at 85. We decided that the 1983 amendment adding § 893.82(1)(b) indicated a legislative intent to overrule Yotvat and permit substantial compliance. Id. at 761, 429 N.W.2d at 85.

Subsequent to our decision in Daily, effective August 15, 1991, the legislature once again amended § 893.82, STATS., this time deleting the "liberal construction" language in § 893.82(1)(b) and replacing it with the "strict construction" language of § 893.82(2m). The legislature is presumed to act with knowledge of appellate decisions interpreting state statutes. Daily, 145 Wis.2d at 759, 429 N.W.2d at 84. We presume, therefore, that when the legislature amended the statute in this way, it was aware of our ruling in Daily. We conclude that the 1991 amendment had the effect of negating our ruling in Daily that substantial compliance with § 893.82(3) was sufficient. Since the 1991 amendment, strict compliance has been required, as § 893.82(2m) plainly states. See Kellner v. Christian, 188 Wis.2d 525, 531-32, 525 N.W.2d 286, 289 (Ct.App.1994) (strict compliance with § 893.82 is required; requirements of the statute are not general guidelines but are rules that must be adhered to with exacting care), review granted, --- Wis.2d ----, 531 N.W.2d 325 (1995).

Plaintiffs argue that the "substantial compliance" standard of Daily applies to their notice of claim because Sherrill Modica's injury occurred on March 25, 1991, before § 893.82(1)(b), STATS., was replaced by § 893.82(2m). According to the plaintiffs, the trial court's application of the "strict construction" language to their notice of claim is an impermissible retroactive application of the 1991 amendment.

We do not agree with plaintiffs' premise that the application of the amendment to their notice of claim is a retroactive application. "A retroactive statute is one which...

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