01-2649 Wenke v. Gehl Company

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Accordingly, plaintiff’s action to recover damages for injuries sustained in Iowa is barred in Wisconsin and was properly dismissed by the circuit court.

“Wisconsin Stat. § 893.07(1) directs Wisconsin courts hearing a foreign cause of action to apply ‘the foreign period of limitation which applies’ if that period is shorter than the applicable Wisconsin limitations period. Based on the analysis in Landis, we conclude that the phrase ‘period of limitation’ is ambiguous as to whether it is meant to include statutes of repose. However, the history, context, subject matter, and purpose of the borrowing statute all indicate that the statute meant to include foreign statutes of repose within the phrase ‘period of limitation.’ Consequently, we overrule that portion of Leverence that incorrectly interpreted § 893.07(1), and we conclude, by honoring Iowa’s applicable period of limitation, that Mr. Wenke’s claim must be dismissed. As a result, we affirm the decision of the court of appeals.”

Affirmed.

CONCURRING OPINION: Crooks, J., with whom Wilcox, J., joins. “I agree with the majority that given this court’s holding in Landis v. Physicians Ins. Co., 2001 WI 86, 62, 245 Wis.2d 1, 628 N.W.2d 893, the distinction between statutes of limitations and statues of repose outlined in Leverence v. U.S. Fidelity & Guaranty, 158 Wis. 2d 64, 90-93, 462 N.W.2d 218 (Ct. App. 1990) is no longer good law. However, I write separately to emphasize that I feel that I have no choice but to affirm, given the majority decision in Landis.

DISSENTING OPINION: Bradley, J., with whom Abrahamson, Ch. J., joins. “Although the majority makes a compelling argument by tracing precedent and enunciating good policy, it is easy to lose focus of the central question presented in this case: whether the legislature intended that a foreign statute of repose be treated as a ‘limitation’ for purposes of Wis. Stat. § 893.07.

“In this case, we have the benefit of a Judicial Council Note which clearly sets forth the intent of the legislature in enacting this statute. It is rare that legislative history so precisely answers the presented question. Because the relevant Judicial Council Note clearly states the intent, ‘in Wisconsin limitations are not treated as statutes of repose,’ I cannot join the majority’s contrary interpretation.”

Court of Appeals, Prosser, J.

Attorneys:

For Appellant: Lynn R. Laufenberg, Milwaukee

For Respondent: Francis H. LoCoco, Daniel J. LaFave, Milwaukee