Scott by Ricciardi v. First State Ins. Co.

• Decision Date: 13 June 1990
• Docket Number: No. 88-1149,88-1149
• Parties: , 59 USLW 2027 Murray SCOTT, a minor by his Guardian ad Litem, Carl L. RICCIARDI, Clifford Scott and Marrion Scott, Plaintiffs-Appellants, v. FIRST STATE INSURANCE COMPANY, a foreign corporation, Paul Patz, Mamie Patz, Arlene Sailer, Laverne Grosse, Harold Grosse, Clifford Patz, Howard Patz, Harold Patz, Darrell Patz, Eleanor Gusick and Roger Gusick, d/b/a Patz Company, Patz Sales Corporation, formerly a Wisconsin corporation, Patz Sales, Inc., a Wisconsin corporation, Employers Mutual Casualty Co., a foreign corporation, and Graetz Mfg., Inc., a Wisconsin corporation, Defendants-Respondents-Petitioners, ABC Insurance Company, a fictitious corporation, and DEF Insurance Company, a fictitious corporation, Defendants.
• Court: Wisconsin Supreme Court

Page 152

456 N.W.2d 152

155 Wis.2d 608, 59 USLW 2027

Murray SCOTT, a minor by his Guardian ad Litem, Carl L.

RICCIARDI, Clifford Scott and Marrion Scott, Plaintiffs-Appellants, v. FIRST STATE INSURANCE COMPANY, a foreign corporation, Paul

Patz, Mamie Patz, Arlene Sailer, Laverne Grosse, Harold

Grosse, Clifford Patz, Howard Patz, Harold Patz, Darrell

Patz, Eleanor Gusick and Roger Gusick, d/b/a Patz Company,

Patz Sales Corporation, formerly a Wisconsin corporation,

Patz Sales, Inc., a Wisconsin corporation, Employers Mutual

Casualty Co., a foreign corporation, and Graetz Mfg., Inc.,

a Wisconsin corporation, Defendants-Respondents-Petitioners,

ABC Insurance Company, a fictitious corporation, and DEF

Insurance Company, a fictitious corporation, Defendants.

No. 88-1149.

Supreme Court of Wisconsin.

Argued March 28, 1990.

Decided June 13, 1990.

Jeffrey A. Schmeckpeper, Patti J. Kurth (argued), and Kasdorf, Lewis & Swietlik, S.C., on briefs, Milwaukee, for defendants-respondents-petitioners, Employers Mut. and Graetz Mfg.

Donald M. Lieb (argued), Mark S. Knutson, and Otjen, Van Ert, Stangle, Lieb & Weir, S.C., on briefs, Milwaukee, for defendants-respondents-petitioners, First State Ins. Co., Paul Patz, Mamie Patz, Arlene Sailer, Laverne Grosse, Harold Grosse, Clifford Patz, Howard Patz, Harold Patz, Darrell Patz, Eleanor Gusick and Roger Gusick d/b/a Patz Co., Patz Sales Corp. and Patz Sales, Inc.

Howard A. Davis (argued), Virginia M. Antoine, and Habush, Habush & Davis, S.C., on briefs, Milwaukee, for plaintiffs-appellants.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, Scott v. First State Insurance Co., 151 Wis.2d 286, 444 N.W.2d 405 (Ct.App.1989), which reversed a summary judgment granted by the circuit court for Milwaukee county, Michael D. Guolee, Circuit Judge. The judgment of the circuit court dismissed the plaintiffs' claims for damages for personal injuries sustained when the minor plaintiff was injured in Alberta, Canada, because the action was brought after Alberta's two-year period of limitation had expired. The court of appeals reversed the judgment, concluding that the Alberta period of limitation was tolled under sec. 893.16(1), the Wisconsin tolling statute for persons under disability. We affirm the decision of the court of appeals.

The issue is whether sec. 893.07(1), Stats.1987-88, "borrows" Alberta's period of limitation and bars this action or whether sec. 893.16(1), Stats.1987-88, applies to this action and renders its commencement timely. ¹ Section 893.07(1) provides that no foreign cause of action may be maintained in Wisconsin if the foreign period of limitation has expired. Section 893.16(1) provides that if a person entitled to bring an action is under the age of 18 when the cause of action accrues, the action may be commenced within two years after the person reaches the age of majority.

We hold, as did the court of appeals, that sec. 893.16(1), Stats.1987-88, extends the Alberta period of limitation borrowed under sec. 893.07(1) to two years after the minor plaintiff achieves the age of 18. Because the plaintiffs brought this action within the time limit set forth in sec. 893.16(1), we affirm the decision of the court of appeals reversing the summary judgment of the circuit court.

For purposes of this review the facts alleged in the complaint are undisputed. On November 8, 1981, 11-year-old Murray Scott (born July 24, 1970) caught his foot and leg in a barn cleaner while working on his family's farm in Alberta, Canada. The defendants were involved in the design, manufacture or sale of the barn cleaner or were insurers for a defendant involved in the design, manufacture or sale of the barn cleaner. The individual defendants are Wisconsin residents; the entity defendants are Wisconsin corporations or foreign corporations licensed or accepted to do business in Wisconsin.

On November 6, 1987, approximately six years after the incident and when the minor plaintiff was 17 years of age, the minor, by his guardian ad litem, and the minor's parents commenced their actions against the defendants in Wisconsin.

The defendants urge this court to affirm dismissal of the complaint on the ground that sec. 893.07(1), Stats.1987-88, adopts Alberta's two-year period of limitation, along with Alberta's tolling provision, and that this period of limitation had expired when this action was commenced. The plaintiffs contend that their action was filed on time under secs. 893.07 and 893.16, Stats.1987-88.

At the outset we note that the parties dispute the interpretation of secs. 893.07(1) and 893.16. The cardinal rule in all statutory interpretation, as this court has often said, is to discern the intent of the legislature. The court will ascertain that intent by examining the language of the statute as well as its scope, history, context, subject matter and purpose.

Section 893.07(1) provides as follow:

(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.

The Wisconsin legislature has made a choice of law determination in sec. 893.07 for foreign causes of action. The foreign period of limitation is controlling for foreign causes of action unless the applicable Wisconsin period of limitation has expired, in which case the action is barred. See sec. 893.07(1), (2), Stats.1987-88. ²

This court has held that the phrase "foreign cause of action" in sec. 893.07 is synonymous with the phrase "action for injuries to the person received without this state," Guertin v. Harbour Assur. Co., 141 Wis.2d 622, 415 N.W.2d 831 (1987). Adhering to Guertin, we conclude that because Alberta is the place where the plaintiffs were injured, the Alberta period of limitation is the applicable foreign period of limitation in this case under sec. 893.07(1).

Once the court determines which foreign period of limitation is applicable under sec. 893.07(1), the focus then becomes whether that period has expired. The defendants contend that if the plain language of sec. 893.07(1) is applied, the plaintiffs' claims must be dismissed because Alberta's period of limitation had expired by the time the plaintiffs commenced this action. Negligence actions must be commenced in Alberta within two years after the cause of action arose. Chapter L-15, Part 9, sec 51, Alta.Rev.Stat. (1980). ³ Alberta also has a statute tolling the period of limitation during a period of disability, but the tolling provision does not apply to a minor in the actual custody of a parent. ⁴ The parties agree that at all times pertinent to this action, the minor plaintiff was in the actual custody of his parents. The Alberta tolling provision would therefore not extend the two-year time period within which these plaintiffs could bring this action.

Upon examination of chapter 893, however, we conclude that the circuit court must also consider the effect of sec. 893.16(1) in deciding under sec. 893.07(1) whether the foreign period of limitation has expired. In Wisconsin, the legislature has adopted a policy of tolling the statute of limitation during the period of minority. Section 893.16(1), Stats.1987-88, provides:

(1) If a person entitled to bring an action is, at the time the cause of action accrues, ... under the age of 18 years ... the action may be commenced within 2 years after the disability ceases....

The purpose of tolling the statute of limitation when the plaintiff is a minor is to ensure that a minor's rights are not lost because a parent or guardian neglected to protect the minor by bringing a timely action. Consequently, the time period for initiating an action is extended in Wisconsin to allow the minor to enforce his or her rights upon reaching the age of majority. Korth v. American Family Insurance Co., 115 Wis.2d 326, 332, 340 N.W.2d 494 (1983). ⁵

The defendants contend that sec. 893.16(1) applies only to a Wisconsin cause of action, not to "foreign cause of action" under sec. 893.07(1). The text of the statutes does not support the defendants' contention. Section 893.16(1) makes no distinction between a domestic and foreign cause of action; it expressly states that the tolling provisions apply to a person entitled to bring an action who is a minor when the cause of action accrued.

The minor plaintiff in this action is a person entitled to bring an action and was a minor when his cause of action accrued. Thus the minor plaintiff in this case fits within the language of sec. 893.16(1). Nothing in sec. 893.16(1) renders the tolling provisions inapplicable to sec. 893.07(1) or to a foreign jurisdiction's statute of limitations incorporated in the law of Wisconsin through 893.07(1). On its face sec. 893.16(1) applies to all causes of action accruing in favor of a party under the age of eighteen at the time the action accrues.

The defendants further assert that sec. 893.16(5) makes sec. 893.16(1) applicable only to statutes in chapter 893 limiting the time for commencement of an action and that the Alberta statute of limitation is not a statute in chapter 893. The defendants therefore conclude that the Wisconsin tolling provision does not apply to this case. Section 893.16(5) provides:

(5) This section applies only to statutes in this chapter limiting the time for commencement of an action or assertion of a defense or counterclaim except it does not apply to:

(a) Actions for the recovery of a penalty ...

(b) Extend the time limited by s. 893.33, 893.41, 893.59, 893.62, 893.73 to 893.76, 893.77(3), 893.86 or 893.91 ...

(c) A cause of action which accrues prior to July 1, 1980. (Emphasis added.)

Contrary to the assertions of the defendants, we read sec. 893.16(5) as expressly making sec. 893.16 applicable to sec. 893.07(1). Section 893.07(1) expressly permits the adoption of the Alberta period of limitation as the statute of limitation applicable in...