Yotvat v. Roth

• Decision Date: 23 January 1980
• Docket Number: No. 79-139,79-139
• Citation: 95 Wis.2d 357,290 N.W.2d 524
• Parties: Ester YOTVAT and Shlomo Yotvat, Individually and as personal representatives of the Estate of Ohad Yotvat, Plaintiffs-Appellants, v. Stephen J. ROTH, William A. Gahl, and Paul J. Kaye, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 524

290 N.W.2d 524

95 Wis.2d 357

Ester YOTVAT and Shlomo Yotvat, Individually and as personal representatives of the Estate of Ohad Yotvat Plaintiffs-Appellants, v. Stephen J. ROTH, William A. Gahl, and Paul J. Kaye Defendants-Respondents.

No. 79-139.

Court of Appeals of Wisconsin.

Submitted on Briefs July 11, 1979.

Opinion Released Jan. 23, 1980.

Opinion Filed Jan. 23, 1980.

Review Denied. ^*

Richard P. Ruh and Schlotthauer, Johnson, Mohs, MacDonald & Widder, Madison, on the brief, for plaintiffs-appellants.

Bronson C. La Follette, Atty. Gen., and Charles R. Larsen, Asst. Atty. Gen., on the brief, for defendants-respondents.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Plaintiffs have appealed from the order of the circuit court which dismissed their complaint for failure to state a claim for which relief can be granted and for lack of jurisdiction.

This is an action for the wrongful death of the plaintiffs' child March 17, 1978. The defendants are alleged to have been engaged in the practice of medicine at the University of Wisconsin Hospitals. The gravamen of the complaint is that the death resulted from the negligence of the defendants in their diagnosis of the child's illness and in their failure to prescribe an appropriate course of treatment. It is alleged that June 8, 1978 the plaintiffs received an opinion from another physician that defendants had been negligent, that June 23, 1978 the plaintiffs notified defendants by letter of the claim against the defendants and that July 26, 1978 the plaintiffs served sworn notice upon the Attorney General of Wisconsin of their claim by certified mail.

The court found that plaintiffs failed to state a claim because they failed to allege compliance with sec. 895.45, Stats., which provides in relevant part:

(1) No civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of such officer's, employe's or agent's duties, unless within 90 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved.

(3) The notice under sub. (1) shall be sworn to by the claimant and shall be served upon the attorney general at his office in the capitol by certified mail. Notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.

The issues are:

1. Is substantial compliance by a claimant with the notice provisions of sec. 895.45(1), Stats., sufficient?

2. Does the time limit in sec. 895.45, Stats., run from the date of discovery of the injury?

3. Does sec. 895.45, Stats., violate the equal protection clauses of the Wisconsin and United States Constitutions by discriminating against the tort victims of state employees?

4. Does sec. 895.45(1), Stats., violate the due process clauses of the Wisconsin and United States Constitutions?

1. Substantial Compliance With Sec. 895.45, Stats. Is Insufficient

Compliance with the notice provisions of sec. 895.45(1), Stats., is a condition precedent to the existence of a cause of action against a state employee arising out of an act covered by the statute. A complaint which fails to show compliance with the statute therefore fails to state a claim upon which relief can be granted.

Section 895.45(1), Stats., provides that no action may be "brought" against a state officer, employee or agent unless the prescribed notice is given. Although the complaint does not allege that the defendants are state employees, the parties have assumed that to be the case in their briefs.

Armes v. Kenosha County, 81 Wis.2d 309, 313, 260 N.W.2d 515 (1977), is controlling. Armes held that where sec. 59.76, Stats.1971, applied, a complaint must have shown compliance with the statute to state a cause of action. Section 59.76, Stats.1971, provided that, "(n)o action shall be brought or maintained" except within a specified period after a claim was filed and disallowed or within a stated period after the county board adjourned. Armes applied Maynard v. De Vries, 224 Wis. 224, 228, 272 N.W. 27, 28 (1937), which held that compliance with sec. 59.76, Stats.1971, "is under the statutes of this state a condition precedent to the existence of a cause of action." Armes, 81 Wis.2d 309, 313, 260 N.W.2d 515, 517.

The plaintiffs contend that they have substantially complied with the notice provisions of sec. 895.45, Stats., and argue that substantial compliance is all the statute requires. They point out that there is no contention that their claim was stale when they served notice upon the attorney general and state that the attorney general has had time in which to investigate fresh facts.

Substantial compliance is insufficient to meet the terms of sec. 895.45, Stats. The statute provides that no action shall be brought unless the required notice is given. No exception is permitted. When the legislature has intended otherwise in a comparable situation, it has expressly allowed an exception to the time requirements in filing notice. Thus, sec. 895.43(1)(a) expressly provides that failure to give a notice required to be given to certain governmental organizations or employees shall not bar an action on a claim if the organization had actual knowledge of the claim and the claimant shows that the delay or failure to give the requisite notice has not been prejudicial to the defendant.

2. The Ninety-Day Provision In Sec. 895.45, Stats., Runs From The Event Causing Injury Or Death

Plaintiffs contend that the ninety days within which notice must be given should start to run from the date the claimant discovers the claim. Plaintiffs assert that they did not know that they had a claim until June 8, 1978 when they received the opinion of another physician that defendants had been negligent. If that date is used, then plaintiffs gave timely notice to the attorney general. Plaintiffs contend that they should not be penalized for investigating the legitimacy of their claim before giving notice to the attorney general.

Section 895.45(1), Stats., provides that the notice must be given within ninety days of the event causing the injury, damage or death and does not refer, expressly or impliedly, to the date of discovery of the event.

McCluskey v. Thranow, 31 Wis.2d 245, 249, 251, 142 N.W.2d 787 (1966), rejected the view that the time should run from discovery as to the statute of limitation applicable to a personal injury action. McCluskey noted that where the legislature has intended the statute of limitations to run after discovery, the legislature has so provided. Peterson v. Roloff, 57 Wis.2d 1, 5-6, 203 N.W.2d 699 (1973), held that if the discovery rule is to be the law of this state, its adoption is a policy decision which should be made by the legislature.

Section 895.45(1), Stats., is a notice of injury statute rather than a statute of limitation. If the discovery rule is to apply to a notice of injury statute, this is as much a policy decision to be implemented by legislation as is application of the discovery rule to statutes of limitation.

We conclude that the period in which notice must be given under sec. 895.45(1), Stats., runs from the event causing the injury, damage or death, regardless when the event is discovered by the claimant.

3. Denial Of Equal Protection

Plaintiffs contend that sec. 895.45, Stats., creates two classes of tort victims: those injured by state officers, employees and agents and those injured by others. Victims of public employee tortfeasors must give the ninety-day notice required by sec. 895.45 but victims of other tortfeasors need do nothing within that period to preserve their causes of action. Plaintiffs assert that the discrimination is unjustifiable and denies them equal protection of the laws under the fourteenth amendment to the United States Constitution and art. I, sec. 1 of the Wisconsin Constitution. ¹

All legislative acts are presumed to be constitutional. A heavy burden is placed upon the party challenging a statute's constitutionality. All doubts must be resolved in favor of the constitutionality of a statute. Stanhope v. Brown County, 90 Wis.2d 823, 837, 280 N.W.2d 711 (1979).

The appropriate test for review of the classifications of governmental and non-governmental tortfeasors and of their victims is whether a rational basis exists for the differentiation. Stanhope, 90 Wis.2d 823, 837, 280 N.W.2d 711; Binder v. Madison, 72 Wis.2d 613, 622, 241 N.W.2d 613 (1976).

Stanhope, 90 Wis.2d 823, 837-38, 280 N.W.2d 711, 717, applies the "rational basis" test as described in McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961):

"(T)he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."

Plaintiffs rely on Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), cert. den. 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972); Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975); and Jenkins v. State, 85 Wash.2d 883, 540 P.2d...