Rosenthal v. Kurtz

• Decision Date: 21 January 1974
• Docket Number: No. 232,232
• Citation: 213 N.W.2d 741,62 Wis.2d 1
• Parties: Imre J. ROSENTHAL et al., d/b/a Lewis Center-Joint Venture, Appellants, v. Kenneth C. KURTZ et al., Respondents, Insulation Service, Inc., et al., Defendants.
• Court: Wisconsin Supreme Court

Page 741

213 N.W.2d 741

62 Wis.2d 1

Imre J. ROSENTHAL et al., d/b/a Lewis Center-Joint Venture, Appellants, v. Kenneth C. KURTZ et al., Respondents, Insulation Service, Inc., et al., Defendants.

No. 232.

Supreme Court of Wisconsin.

Jan. 21, 1974.

Porter, Purtell, Purcell, Wilmot & Burroughs, Milwaukee, Charles E. Burroughs, Milwaukee, of counsel, for appellants.

Niebler & Niebler, Menomonee Falls, Chester J. Niebler, Menomonee Falls, of counsel, for respondents.

HEFFERNAN, Justice.

The plaintiffs argue that the period of limitations runs not from December 31, 1963, the time that the architectural services were last performed, but from July 3, 1967, the time the construction of the improvement to the real estate was completed. If the plaintiffs' interpretation of the statute is correct, their suit commenced on October 19, 1971, was timely.

The relevant statutes provided:

'893.14 Actions, time for commencing. The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued . . .. (Emphasis supplied.)

'893.15 . . ..

'893.155 Within 6 years. No action to recover damages for any injury to property, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 6 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action.'

Plaintiffs argue that no matter how the statute is read, the only date on which the period of limitations can commence is the date of completion of construction.

Plaintiffs contend that only two ways of reading the statute, each leading to the same conclusion in this case, are permissible:

'a) (No action . . . shall be brought) . . . more than six years after the performance . . . of such services and construction, or

'b) (No action . . . shall be brought) . . . more than six years after the . . . furnishing of such services and construction.' (Emphasis plaintiffs')

The defendants did not give this argument, which we consider crucial, the same careful and scholarly consideration given to other issues on this appeal. We can only conclude that they felt that the limitation question had been decided and needed no extended analysis.

We find, however, that the question is one of first impression in Wisconsin. In no case decided by this court has it been necessary to determine what event triggers the commencement of the period of limitations under sec. 893.155, Stats.

Two cases have peripherally dealt with the matter, Cohen v. Towne Realty, Inc. (1972), 54 Wis.2d 1, 194 N.W.2d 298, and Shaurette v. Capitol Erecting Co. (1964), 23 Wis.2d 538, 128 N.W.2d 34.

In Cohen, we held that the period of limitations commenced, 'at the time the construction was completed.' (54 Wis.2d p. 4, 194 N.W.2d p. 299) In Shaurette, the court summarized the statute, then sec. 330.155, Stats., as providing that no action shall be brought 'more than six years after the performance of such services.' (23 Wis.2d p. 544, 128 N.W.2d p. 37)

These cases are not helpful, for, in addition to their contradictory dicta, it appears that in each case the last date of performance of services was also the date on which construction was completed.

Sec. 893.155, Stats., is an anomaly in several respects. Sec. 893.14 is prefatory and explanatory of all the various periods of limitation set forth in the subsequent statutes: Sec. 893.15 ff., including sec. 893.155.

Sec. 893.14, Stats., provides that the period of limitations 'respectively hereinafter prescribed' shall commence 'after the cause of action has accrued.' In an action for tort, the cause of action ordinarily does not accrue, 'until some damage has occurred.' Prosser, Torts (hornbook series, 4th ed.), sec. 30, p. 144. This court has uniformly so held in respect to tort cases. Even if the negligence that caused the injury occurred substantially in the past, as in products liability cases, the period of limitations commences to run from the time of injury, and not from the time of the negligent act or omission. Even in malpractice cases we hold, despite a substantial argument to the contrary, that injury occurs on the date of the act of negligent malpractice, and the cause of action accrues on that date, i.e., the date of the initial injury even though its consequential effects and the extent of injury could not on that day be determined.

Under the situation contemplated by the statutes, secs. 893.14 and 893.155, Stats., and under the law of torts of this state, a defect of design or construction does not ripen into an accrued cause of action until the injury is inflicted or the damage incurred. Hence, under the language of secs. 893.14 and 893.155, read together as they must be, the six year period of limitations begins neither at the time of the last performance of service nor upon the completion of construction, but on the date the cause of action accrues, and runs for six years thereafter. Under this interpretation, arguably dictated by the statutes, the period of limitations in this case will not have run until early 1976.

It seems clear, however, that such was not the legislative intent, despite the plain meaning of secs. 893.14 and 893.155, Stats. The legislative intent rather appears to be of even greater dubiety, particularly in a constitutional sense. It would deprive a putative plaintiff of a remedy before he has a cause of action. The legislative intent appears to be to deprive an injured party of any remedy whatsoever. When sec. 893.155, Stats., is read alone, the period of limitations commences at the time of last performance of service by the defendant and the date of completion of the improvement to the property. Under this reading of the statute, the injured party may be foreclosed of any remedy if the injury becomes apparent beyond a six year period, since he cannot commence an action until the cause of action has accrued.

In the instant case the plaintiffs' cause of action accrued early in 1970. Under the defendants' interpretation of the statute, the period of limitations would have expired in 1969, prior to the time the plaintiffs could have moved to enforce their rights.

In Wisconsin we have found at least two major policy purposes behind a statute of limitations. One is to deny a court forum to those who have slept upon their rights. The other is to protect a defendant from stale claims and from lawsuits brought at a time when memories have faded and a defense becomes more difficult. Peterson v. Roloff (1973), 57 Wis.2d 1, 6, 12, 203 N.W.2d 699; State Farm Mut. Automobile Ins. Co. v. Schara (1972), 56 Wis.2d 262, 268, 201 N.W.2d 758. The lapse of time, however, poses equal or greater problems for the plaintiffs, who in the usual case has the burden of proof. The denial of a remedy by the invocation of a statute of limitations is traditionally justified by the neglect of the plaintiff to assert his rights.

What justification can there be in terms of traditional policies behind statutes of repose when we have as recently as 1973 said that one policy worthy of implementation is 'that of allowing meritorious claimants, who have been as diligent as possible an opportunity to seek redress for injuries sustained.' Peterson v. Roloff, supra, 57 Wis.2d p. 6, 203 N.W.2d p. 705. The plaintiffs showed reasonable diligence in commencing a suit within a year after they were aware of their injury.

Sec. 893.155, Stats., however, not only bars a suit before the injured party is aware of his right to do so, but goes further and bars the right to sue before it arises. Yet sec. 893.14, the prefatory section to sec. 893.155 seems to indicate that in each of the limitations thereinafter specified a right of action exists subject to the bar of limitations. If such be the case, that there is a legislatively recognized right of action that arises when the injury is sustained, a serious constitutional question is posed if the legislature, in contravention of a right statutorily recognized by it, provides, in contravention to art. I, sec. 9, of the Wisconsin Constitution, that there will be no remedy for the wrong.

In the medical malpractice cases, although we have adhered to our traditional rule, we have recognized the injustice of commencing the period of limitations at the time of the negligent act by a physician, when the injured party may not be aware of his right of action until the effect of the negligence causes noticeable injury. We have attempted to rationalize the position of McCluskey v. Thranow (1966), 31 Wis.2d 245, 142 N.W.2d 787, in later cases. We pointed out in Olson v. St. Croix Valley Memorial Hospital, Inc. (1972), 55 Wis.2d 628, 632, 201 N.W.2d 63, 64, that:

'. . . in a malpractice case the date of the negligent act is not necessarily the benchmark for the commencement of a period of limitations. Only in the event the injury occurs on the same date can it be said the cause of action then 'accrues."

The concurring opinion of Chief Justice Hallows in Olson correctly points out, however, that the 'injury' was unknown to the plaintiff and '(r)ealistically no injury, which would give rise to a cause of action, arose until the first child died shortly after birth,' although the majority found, on the basis of the complaint, that the injury occurred, and hence the cause of action accrued, when the mother was given an...