It was obvious when the Supreme Court issued its decision in DNR v. Waukesha that it would be impossible for parties in numerous types of actions with statutes of limitation less than 120 days to both file a notice of claim and file a timely complaint.
There have been only a handful of published cases holding the notice of claim statute inapplicable because of that impossibility, and most of those followed relatively shortly on the heels of the Supreme Courts recognition of these impossibilities in Auchinleck v. Town of LaGrange, 200 Wis.2d 585, 547 N.W.2d 587 (1996).
However, the consistency of those cases has made clear that DNR v. Waukesha is inapplicable to those statutory schemes.
The decision here could produce an even greater wave similar to that following Auchinleck, because it is the first case to create an exception even though the applicable statute of limitations is greater than the 120 days provided for in sec. 893.80(1).
By expanding the second Town of Burke factor to encompass any legislative purpose, and not limiting it to promptness, the court has created an opportunity for the exceptions to swallow the rule in DNR v. Waukesha.
A potentially even more significant aspect of the decision, however, is the courts recognition that, even if it is possible for a plaintiff to comply with both the notice of claim statute and whatever statute of limitations may exist, once an action is underway, other parties may need to join the action to protect their rights, but may not be able to do so.
As the court noted, pursuant to sec. 32.05(11), other parties must join a condemnation action within 10 days of notice. Obviously, those parties cannot both timely join the action and file a notice of claim.
Even where such a requirement does not exist, however, this same reasoning militates against applying DNR v. Waukesha to any actions other than torts.
Suppose a municipality is already engaged in litigation, and another party wishes to intervene in the action. The motion to intervene must be timely. Although the courts have liberally interpreted timely, nevertheless, due to imminent settlement by the parties already involved, or imminent trial, it may be impossible for a party to file a notice of claim, wait the 120 days that the municipality has to sit on that claim, and still file a timely motion for intervention.
If a case has already settled before it is even possible for another party to be allowed to move to intervene, then the goals of efficiency and consistency that are served by requiring timely intervention are hindered, rather than served.
As such, this case does not merely provide support for creating many new exceptions to DNR v. Waukesha in actions governed by specific statutory procedures, but also for potentially creating an exception for any party wishing to intervene in any already pending action involving a municipality.
– David Ziemer
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David Ziemer can be reached by email.