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Section 893.22 does not apply to disabled

Cane

“In situations where a cause of action has more than one year remaining under its statute of limitations, sec. 893.22 simply does not apply.”

Hon. Thomas Cane Wisconsin Court of Appeals

When a mentally disabled person dies before expiration of time for commencement of an action, sec. 893.22 does not limit the estate to bringing suit within one year, the Wisconsin Court of Appeals held on May 4.

Between March 29, 1994, and Dec. 3, 1996, Lucille Genevieve Yox was a resident of the St. Francis Home. At all material times and until her death on Aug. 15, 2000, Yox suffered from Alzheimer’s disease.

Alzheimer’s disease is indisputably a “mental illness” for purposes of sec. 893.16, the “person under disability” statute of limitations.

On Aug. 12, 2002, Julie Ann Walberg was appointed special administrator for Yox’s estate and, on that date, she commenced an action against St. Francis and Catholic Charities Bureau, Inc., claiming negligence for personal injuries Yox sustained while at St. Francis and breach of contract for St. Francis’ substandard care during Yox’s time at the facility.

St. Francis answered that the action was time-barred and later filed a motion to dismiss. Douglas County Circuit Court Judge George L. Glonek granted the motion, concluding that the relevant statute of limitations was not two years from Yox’s death under sec. 893.16, as Walberg argued, but instead was one year from Yox’s death under sec. 893.22. Accordingly, the court found the action time-barred.

Walberg appealed, and the court of appeals reversed in a decision by Judge Thomas Cane.

Section 893.22 states in relevant part: “If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person’s representatives after the expiration of that time and within one year from the person’s death.”

Section 893.16 states in relevant part: “(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.

What the court held

Case: Walberg v. St. Francis Home, Inc., No. 03-2164.

Issue: If a person under mental disability dies, does sec. 893.16 or sec. 893.22 apply to toll the statute of limitations?

Holding: Section 893.16. Section 893.22 only applies in situations where a cause of action has less than one year remaining on the period of limitation at the time of death.

Counsel: David L. Weidt, Duluth, MN; Keith J. Peterson, Superior, for appellant; Kenneth A. Knudson, Superior, for respondent.

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

The court rejected the trial court’s conclusion that, upon a person’s death, sec. 893.22 automatically shortens the period of limitations for any of that person’s existing claims to one year.

The court cited Curran v. Witter, 68 Wis. 16, 22, 31 N.W. 705 (1887), in which the Supreme Court interpreted the predecessor to sec. 893.22 and held, “It is obvious that this provision only reaches a case where the person entitled to bring the action dies during the last year of the term of limitation.”

Applying the reasoning of Curran, the court of appeals concluded, “Sec. 893.22 applies only when a person dies with an existing claim that has less than one year remaining on the period of limitations. In that case, the period of limitations is extended up to one year, which begins to run upon the person’s death. Thus, in situations where a cause of action has more than one year remaining under its statute of limitations, sec. 893.22 simply does not apply.”

Because Yox’s claims had more than one year remaining on their periods of limitation at the time of her death, the court held sec. 893.22 inapplicable.

Instead, the court applied sec. 893.16. The court acknowledged that the statute applies differently, depending on whether death constitutes cessation of disability.

However, the court concluded it need not decide whether death constitutes a cessation of disability, because the claims were timely under either interpretation.

The court reasoned, “When a person’s mental disability does not cease, Wis. Stat. sec. 893.16(1) provides that the underlying period of limitations remains tolled, but cannot be extended for more than five years. Thus, a disabled person has up to eleven years to commence a contract action and up to eight years to commence a negligence action for injury to the person.”

The court added, “the parties seem to agree the claims accrued on Dec. 3, 1996. Applying Wis. Stat. sec. 893.16, if Yox’s death did not cause her disability to cease, as St. Francis contends, Walberg had until Dec. 3, 2007, to bring the contract action and until Dec. 3, 2004, to bring the negligence action. Thus, in this scenario, as of Yox’s death on Aug. 15, 2000, neither claim could have been in the final year of the limitations period. Therefore, Wis. Stat. sec. 893.22 does
not apply, and the claims commenced on Aug. 12, 2002, are timely (cites omitted).”

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Case Analysis

Applying the alternative interpretation — that death results in cessation of disability — the court concluded, “When the person’s mental disability ceases, the person must commence the action within two years after cessation of the disability. However, there are two caveats: (1) the underlying period of limitations still cannot be extended more than five years, see Wis. Stat. sec. 893.16(1), and (2) the underlying period of limitations cannot be shortened, see sec. 893.16(2).”

The court concluded, “If Yox’s death on Aug. 15, 2000, caused her disability to cease, as Walberg contends, Walberg had until Aug. 15, 2002, to commence the negligence claim, since neither of Wis. Stat. sec. 893.16’s caveats would be violated. However, as to the contract claim, Walberg was not required to commence the claim by Aug. 15, 2002, because such a requirement would shorten the underlying six-year contract statute of limitations by just over three-and-a-half months. Section 893.16(2) prohibits this result. Hence, Walberg retained the full six-year contract statute of limitations and, therefore, had until Dec. 3, 2002, to commence the contract action. Thus, in this scenario as well, neither of Walberg’s claims was in the final year of their limitations period. Therefore, Wis. Stat. sec. 893.22 does not apply, and the claims commenced on Aug. 12, 2002, are still timely.”

Accordingly, the court concluded it need not decide whether death constitutes a cessation of disability, because the claims were timely under either interpretation, and reversed.

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David Ziemer can be reached by email.

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