Shannon v. City of Milwaukee

Decision Date04 March 1980
Docket NumberNo. 77-315,77-315
Citation289 N.W.2d 564,94 Wis.2d 364
PartiesJoyce A. SHANNON, Plaintiff-Appellant, v. CITY OF MILWAUKEE, Defendant-Respondent, Continental Casualty Company, Defendant-Respondent-Petitioner, Roy C. Burrell, Defendant.
CourtWisconsin Supreme Court

The defendant Continental Casualty Company seeks review of a decision of the court of appeals partially reversing a judgment of the circuit court for Milwaukee county. The circuit court granted judgment dismissing with prejudice plaintiff Joyce A. Shannon's complaint against Continental and its insured, the City of Milwaukee. The court of appeals affirmed the judgment as to the City of Milwaukee, but reversed that portion dismissing the complaint against Continental and ordered that it be reinstated.

Roger L. Wiedeback, Milwaukee, argued for defendant-respondent-petitioner; Prosser, Wiedabach & Quale, S. C., Milwaukee, on the brief.

Daniel R. Doucette, Milwaukee, argued for plaintiff-appellant; Michael J. Pfau and Kluwin, Dunphy, Hankin & McNulty, Milwaukee, on the brief.

BEILFUSS, Chief Justice.

This action arises out of a traffic accident which occurred at the intersection of North Sixth Street and West Garfield Avenue in the City of Milwaukee on February 10, 1974. Plaintiff Joyce A. Shannon was injured when the automobile in which she was a passenger collided with a Milwaukee Fire Department vehicle being operated by Russell K. Ewert, an employee of the fire department.

On or about May 25, 1974, plaintiff's attorney served a notice of claim on the City of Milwaukee. The city tendered its defense to its insurer, Continental. In the ensuing twenty months Continental sent plaintiff's attorney two letters requesting special damage and medical information and volunteering to discuss settlement. On one occasion within that period plaintiff's attorney transmitted the requested material but no settlement was ever arrived at.

The plaintiff commenced her action against the City of Milwaukee, Continental and Roy C. Burrell, the driver of the car in which she was riding, by summons and complaint filed February 3, 1977. The complaint alleged negligence on the part of Ewert and Burrell in operating their respective vehicles.

It further alleged that at the time of the accident Ewert was employed by the City of Milwaukee Fire Department, and that Continental was the insurer of the City of Milwaukee and its agents, servants and employees operating city owned vehicles with its permission and consent. Plaintiff demanded judgment against Milwaukee and Continental for damages in the amount of $75,000 for the injuries sustained by her.

Continental and Milwaukee answered denying that Ewert was negligent in his operation of the fire department vehicle and alleging as an affirmative defense that plaintiff's action was barred by the limitation set out in sec. 345.05(4), Stats., 1 on claims against municipalities by persons suffering damage caused by the negligent operation of municipal vehicles.

Plaintiff moved to strike the affirmative defense and Milwaukee and Continental moved alternatively for judgment on the pleadings or summary judgment. Judgment was granted by the trial court and plaintiff appealed. 2

The court of appeals affirmed the trial court's judgment with respect to the City of Milwaukee, holding that plaintiff's failure to commence her action within the time allowed under sec. 345.05(4), Stats., barred any claim she might have had against the city. It reversed the judgment of the trial court, however, as to Continental. Relying upon this court's decision in Rabe v. Outagamie County, 72 Wis.2d 492, 241 N.W.2d 428 (1976), the court of appeals held that plaintiff's failure to bring her action within the time period required under sec. 345.05(4) was not a bar to her action against Ewert and because Continental was alleged to have insured not only the city, but also its employees while operating city vehicles, plaintiff's direct action against Continental based upon Ewert's negligence could still be maintained.

Rabe v. Outagamie County, supra, like this case, involved an action against a local governmental agency and its vehicle insurer. There too the plaintiff's action against the governmental agency was held barred by her failure to comply with the applicable claims statute. Despite the fact that plaintiff could no longer bring her action against the county, this court held that she could still proceed against the county's insurer for the alleged negligence of its employees.

". . . Since the complaint alleges that the liability policy of the insurer extends to the county employees, dismissal of the county does not also discharge the insurer who bears their liability under our direct action procedures. Unlike the notice of the injury statute, the claims statute applies only to the governmental agency and not to its employees." Id. 72 Wis.2d at 501-02, 241 N.W.2d at 433.

The court of appeals concluded that the same result followed here.

On review Continental seeks to distinguish Rabe by pointing out that it was decided under sec. 59.76, Stats., 3 a statute not applicable in this case. The language of sec. 345.05(4), it contends, is wholly different from that of sec. 59.76 and clearly indicates the legislature's intent to provide protection to the employee as well as the municipality.

Sec. 345.05, Stats., sets out the manner in which persons who suffer damage as a result of the negligent operation of motor vehicles owned and operated by the state or a municipality may file claims against such governmental entities. Where the claim is against the city, sec. 345.05(3)(c) states that it shall be filed with the city clerk as provided in sec. 62.25. 4 Sub. (4) of sec. 345.05 provides that the failure of a governing body to pass upon a claim filed under that section within 90 days after presentation constitutes a disallowance and that disallowance "bars any action founded on the claim" unless brought within six months thereafter.

Continental contends that the words "bars any action" must be construed as barring plaintiff's action against Ewert as well as that against the city. It points out that the language of sec. 59.76(1), Stats., upon which the court relied in Rabe, is "No action shall be brought or maintained against a county . . . ." Because the statutory bar of sec. 345.05(4) is not expressly limited to actions against the governmental agency as is sec. 59.76(1), it argues, the Rabe Case does not apply.

A careful and complete reading of sec. 59.76, Stats., however, reveals that this distinction is not sound. Sec. 345.05(4) corresponds not to sec. 59.76(1), but to sub. (2) of that section. Sec. 59.76(2), like sec. 345.05(4), provides in part that disallowance of a claim shall be a bar "to any action founded thereon" unless brought against the county within six months after disallowance, or unless the county board consents or agrees to the institution of such action. Despite this language, we held in Rabe that this statute "applies only to the governmental agency and not to its employees." 72 Wis.2d at 502, 241 N.W.2d at 433. The same conclusion follows here.

Sec. 345.05, Stats., by its plain language, refers only to the liability of state or municipal owner of the vehicle, not that of the employee driver. The two are by no means the same.

In this case the liability of Ewert, if any, is based upon his own failure to use a reasonable degree of care under the circumstances in the operation of the fire department vehicle. It is basic to the Anglo-American law of torts that, absent a valid defense, one is liable for the harm proximately caused by his own negligent conduct. Prosser, Law of Torts (4th ed., hornbook series), p. 6. Thus, if plaintiff's injuries were caused by Ewert's failure to use reasonable care under the circumstances, he is personally liable to her for those injuries.

The liability which plaintiff sought to impose on the City of Milwaukee, on the other hand, was based on the fact that Ewert was an employee of the city at the time of the accident. Under the doctrine of respondeat superior an employer can be held vicariously liable for the negligent acts of his employees while they are acting within the scope of their employment. The additional liability of the employer, however, does not shield the negligent employee from his own personal liability, nor does it supplant his liability with that of his employer. 5 It provides only an alternative, and in some cases a more lucrative, source from which the injured party may recover his damages.

Because the imposition of vicarious liability upon the employer does not absolve the negligent employee of his personal liability, it follows that a statutory bar to the action against the employer need not inure to the benefit of the employee. In this case, we conclude that it does not.

Sec. 345.05(4), Stats., provides that disallowance "bars any action founded on the claim unless brought within 6 months after disallowance." (Emphasis supplied.) In emphasizing the words "bars any action," Continental has ignored the language "founded on the claim." We believe the phrase "founded on the claim" was intended to modify the word "action" and indicates the kind of action that is to be barred unless commenced within six months of disallowance. Thus, it is not any action which is barred under sec. 345.05(4), but only "any action founded on the claim."

In this case plaintiff's direct action against Continental as insurer for Ewert is separate and apart from the claim disallowed by the city. It is founded not upon her claim against the city, but rather, like that claim itself, upon Ewert's allegedly negligent operation of the city-owned vehicle. Only the action against the city itself could in any sense be said to be "founded upon the claim." Because the direct action against the insurer based upon Ewert's alleged negligence is not founded upon the claim...

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