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Court considers statutes of repose, limitations


Lynn Laufenberg

In the case of Landis v. Physicians Insurance Co., 2001 WI 86, the Wisconsin Supreme Court held that the phrase, "any applicable statute of limitation," as used by the legislature in the medical malpractice statutes, referred to statutes of repose, as well as statutes of limitation.

Now the court must decide whether Landis functionally overruled Leverence v. United States Fidelity & Guaranty, 158 Wis.2d 608, 456 N.W.2d 312 (Ct.App.1990), a 1990 court of appeals case in which a clear distinction between the two was recognized in the state’s borrowing statute, sec. 893.07.

To that end, the court heard oral arguments on Jan. 16, in the case of Martin Wenke, et al. v. Gehl Co. Depending on the breadth of the court’s ultimate holding, however, the case could result in all references by the legislature to statutes of limitation being construed to include statutes of repose.

The case involves a Sept. 12, 1997, farm injury in Iowa. Martin Wenke’s right arm was severed while he was operating a hay baler manufactured many years earlier by the Gehl Company of West Bend, Wisconsin.

Wenke brought a product liability action against Gehl Co. in Wisconsin state court on Aug. 18, 1999. Gehl moved to dismiss the claim, arguing that Iowa’s statute of repose provided that no product liability action could be filed more than 14 years after the product was purchased. The motion was rejected by Washington County Circuit Court Judge Patrick J. Faragher, but Gehl renewed its motion after the Landis decision.

Judge Faragher, although acknowledging that Landis had not explicitly overruled Leverence, dismissed Wenke’s action. Wenke appealed, and the Court of Appeals certified the appeal to the Supreme Court, which accepted review.

Wisconsin’s borrowing statute, sec. 893.07, provides: "(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. (2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state."

Wenke’s action against Gehl, a Wisconsin corporation, would not be time-barred if the accident had occurred in Wisconsin, because Wisconsin has a three-year statute of limitation, and no statute of repose for product liability actions.

Iowa, however, has a two-year statute of limitation, and the 14-year statute of repose, for product liability actions. Thus, Wenke’s action was filed within the statute of limitations.

However, based on the age of the hay baler, and the statute of repose, the action could not be maintained under Iowa law.

Arguing for the continued viability of Milwaukee attorney Lynn Laufenberg suggested that the decision in Landis only makes the borrowing statute ambiguous, stating, "the only relevance Landis has to Leverence is that the legislature has not expressly recognized the difference between statutes of repose and statutes of limitation. … That’s as far as the precedent in Landis takes us."

Laufenberg argued that Landis does not require that, in all cases, where the legislative history and statutory language is different than in Landis, that statutes of repose and limitation are merged for all purposes.

The legislative intent that the decision in Leverence remains good law is demonstrated by the fact that, "in more than 12 years since Leverence was decided, the legislature has not acted to change it," Laufenberg noted.

Under such circumstances, Laufenberg argued, "the court must have a compelling reason to say it was wrongly decided, especially given the passage of time in which the legislature has not seen fit to change it."

Asked by Justice David Prosser what policy reason there would be for the legislature to distinguish between foreign statutes of limitation and foreign statutes of repose in enacting the borrowing statute, Laufenberg suggested that the legislature intended to give the same effect to expiration of a foreign state’s statute of limitation as it gives to Wisconsin’s – creation of a constitutionally protected property right.

Expiration of a statute of repose, however, creates no such right, but merely eliminates a remedy, L
aufenberg argued, and therefore, a reason exists for the legislature to not give such an event the same effect.

However, that contention was disputed by Francis H. Lo Coco, attorney for Gehl, who maintained that the expiration of statutes of both limitation and repose create vested property rights.


Wisconsin Supreme Court

During the oral argument, the justices repeatedly explored the breadth of the holding that Lo Coco wished the court to make – specifically, whether in all instances that the legislature refers to "statutes of limitation," it intends to include statutes of repose.

Lo Coco, a partner at Quarles & Brady LLP, refrained from requesting such a broad holding, however, but did maintain that the two are merged whenever used in Chapter 893. In support of that interpretation, Lo Coco noted that the chapter was enacted in the same year, 1979, and in the same historical context, as the medical malpractice statute at issue in Landis.

Lo Coco suggested that, since the legislature has never used the terminology "statute of repose," the holding in Landis "might be" broad enough that every reference to "statutes of limitation" include both. To decide the case at bar, though, he maintained the court need only conclude that for "every contemporaneous enactment," the interpretation applies.

In concluding, Lo Coco addressed the policy question, maintaining that it would make no sense to not include statutes of repose within the borrowing statute’s language.

To interpret the statute that way, he maintained, one would have to find that the legislature intended to give foreign plaintiffs more time to sue Wisconsin citizens that they would have to sue citizens of their own state.

David Ziemer can be reached by email.

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