Court equates statutes of limitation

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Landis v. Physicians Insurance Co. of Wisconsin, Inc., 2001 WI 86 effectively overruled Leverence v. United States Fidelity & Guaranty, 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990), which had held that Wisconsin’s borrowing statute, sec. 893.07, applied only to statutes of limitations, and not statutes of repose, the Wisconsin Court of Appeals held on Aug. 20.

On Sept. 12, 1997, the right arm of Martin Wenke, an Iowa resident, was amputated while he was attempting to remove hay from the front of a hay baler made by Gehl Company, a Wisconsin corporation. The baler was first sold by Gehl to another Iowa resident on May 26, 1981.

Wenke brought suit in Wisconsin on Aug. 18, 1999. Gehl moved for summary judgment, citing Iowa’s statute of repose for product liability claims.

That statute bars actions more than 15 years after the initial purchase of the product, and thus, Wenke could not have brought suit in Iowa after May 26, 1996.

Washington County Circuit Court Judge Patrick J. Faragher denied the motion, relying on Leverence. Gehl unsuccessfully sought interlocutory review of this decision in the court of appeals. After the Wisconsin Supreme Court decided Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, Gehl sought reconsideration, but the motion was denied.

After Landis was decided, Gehl again moved for reconsideration, and this time, the court granted the motion, agreeing that Landis effectively overruled Leverence.

Wenke appealed, and the court of appeals certified the case to the Wisconsin Supreme Court. The Supreme Court accepted review, but was equally divided on whether to affirm or reverse, and accordingly, vacated its acceptance of certification, and remanded the case back to the court of appeals.

On remand, the court of appeals affirmed the trial court in a decision by Judge Harry G. Snyder.

Leverence

The court began by summarizing the two cases at issue. In Leverence, occupants of homes bought by Tri-State Homes brought strict liability and negligence actions against Tri-State’s insurers and an inspection service. Jurisdiction was present in both Minnesota and Wisconsin, but Minnesota had a statute of repose that barred the suit.

In Wisconsin, the suit was not barred by any statute of repose, but Wisconsin’s borrowing statute provided, “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.”

The Wisconsin Court of Appeals held that the action could be brought in Wisconsin, nonetheless, because the borrowing statute applies only to statutes of limitation, and not statutes of repose, distinguishing between the two as follows: “A period of limitation bars an action if the plaintiff does not file suit within a set period of time from the date on which the cause of action accrued. In contrast, a period of repose bars a suit a fixed number of years after an action by the defendant (such as manufacturing a product), even if this period ends before the plaintiff suffers any injury.” Leverence, 158 Wis. 2d at 92.

Landis

In Landis, however, the Wisconsin Supreme Court issued a ruling that directly contradicted the distinction. There, Landis sued a variety of health care providers for malpractice that resulted in the death of her husband. The defendants moved to dismiss, relying on sec. 893.55(1)(b), which sets a five-year time limit for filing a medical malpractice action.

The circuit court denied the action, citing sec. 655.44(4), which provides that any statute of limitations for medical malpractice actions is tolled during mediation. The Wisconsin Supreme Court
agreed, concluding that, when the legislature said that statutes of limitation are tolled, it meant to include statutes of repose as well.

The Supreme Court found that the term, “statute of repose,” is a judicial label for a particular type of limitation on actions, not a term used by legislatures.

Implicit Overrule

Notwithstanding the decision in Landis, Wenke argued that Leverence remained valid law, and had become part of the borrowing statute itself due to legislative inaction. If the legislature disagreed with the decision in Leverence, Wenke argued, it could have overruled it during the intervening years.

The court rejected the argument, quoting the following language from Landis: “When the legislature wrote the language in [Wis. Stat.] sec. 655.44(4) tolling ‘[a]ny applicable statute of limitations,’ it intended to include any applicable statute of repose. In this subsection, the legislature made no distinction between a statute of limitations and a statute of repose. In numerous other statutes, the legislature has not differentiated with a precise statutory label whether a time limitation for commencing an action is a statute of limitations or a statute of repose. The term ‘statute of repose’ is largely a judicial label for a particular type of limitation on actions.” Landis, 245 Wis. 2d 1, par. 5.

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Applying the reasoning of Landis to the case at bar, the court of appeals concluded, “Similar to the medical malpractice tolling provisions of Wis. Stat. sec. 655.44, in the borrowing statute of Wis. Stat. sec. 893.07, the legislature has made no distinction between a statute of limitations and a statute of repose. Reference is made to a ‘foreign period of limitation’ but not to statutes of repose or statutes of limitations. In fact, as Justice Bradley’s Landis concurrence notes, the phrase ‘“statute of repose” is not part of the legislature’s lexicon, but rather is a judicially created label used to describe a particular type of limitation on actions.’ Landis, 245 Wis. 2d 1, par. 67. Given these statements, it logically follows that the term ‘statute of limitations’ includes statutes of repose and that the phrase ‘foreign period of limitation’ in sec. 893.07 borrows from other jurisdictions both statutes of limitations and statutes of repose. Consequently, we must conclude under sec. 893.07, the fifteen-year period of repose is borrowed from Iowa’s statutes.”

As persuasive authority, the court cited Merner v. Deere & Co., 176 F.Supp.2d 882 (E.D.Wis.2001), a case presenting the identical issue. The federal district court acknowledged the Leverence decision, but concluded that, in light of Landis, the Wisconsin Supreme Court would borrow the Iowa statute of repose, if presented with the issue.

Agreeing with the analysis in Merner, the court concluded, “The Wisconsin Supreme Court’s decision in Landis effectively overruled Leverence. We are bound by the holding of Landis, which, in essence, abandons any distinction between a statute of limitations and a statute of repose. The Supreme Court has the authority to, both implicitly and explicitly, overrule an opinion of the court of appeals. It has done so in Landis (cite omitted).”

Accordingly, the court affirmed the trial court’s dismissal of the action.

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David Ziemer can be reached by email.