Disability Case Analysis

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By only holding that sec. 893.22 does not apply, and declining to decide whether death constitutes cessation of disability, the court leaves two interpretations of sec. 893.16 available. However, it would be folly for any plaintiff’s attorney to think that both would actually be found plausible when the time comes for the court to actually choose between the two.

Section 893.16 states, “(1) If a person entitled to bring an action is, at the time the cause of action accrues … mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

“(2) Subsection (1) does not shorten a period of limitation otherwise prescribed.”

The first interpretation the court suggests — that the second clause of subsection (1) can add five years to any claim — is flatly contradicted by the committee notes to the statute.

The notes state, “The maximum extension time available to those under disability or insanity or imprisonment is limited to five years. This means that such individuals must sue within 5 years after the basic applicable statute of limitations would have run against one not under disability, or within 2 years after the disability ends, whichever period is shorter.”

Thus, the second interpretation is the only reasonable one — that death does constitute cessation of disability. Under this interpretation, the statute is properly understood as follows:

The first clause of subsection (1) is a statute of limitation, permitting an action to be brought within two years after cessation of disability (or in this case, death). The second clause of subsection (1) is a statute of repose, not limitation, and caps the amount of time that any statute of limitation may be tolled at 5 years, regardless of how long the mental disability lasts.

	Related Links Wisconsin Court System Related Article Section 893.22 does not apply to disabled

Finally, subsection (2) is a codification of the rule that the statute only applies to cases in which the cessation of disability occurs within the last two years of the term of limitation, in the same way that Curran v. Witter, 68 Wis. 16, 31 N.W. 705 (1887), interpreted the predecessor to sec. 893.22 to apply only if the person died within one year of the end of the limitation period.

The other alternative suggested by the court — that the second clause of subsection (1) simply tacks five years on to any limitation period — is not plausible because it renders the first clause superfluous on its face, and would render subsection (2) superfluous as applied.

Thus, parties should expect that, if the court ever must decide whether death equates to cessation of disability, the court will find that it does. The court noted that this is the majority rule, according to 54 C.J.S. Limitations of Actions, sec. 119 (1987).

Accordingly, plaintiffs should file any action within two years of death of a disabled person, or within the statute of limitations that would apply if the person were not disabled, whichever is later.

– David Ziemer

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David Ziemer can be reached by email.