04-0461 Wieting Funeral Home of Chilton, Inc. v. Meridian Mutual Insurance Company

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“We also reject Wieting’s alternative arguments that Meridian is estopped from asserting a statute of limitations defense because of ongoing negotiations with Wieting and that the statute was further tolled because the parties agreed to the appraisal procedure under § 631.83(5)….

“In the instant case, however, ch. 893 does not expressly speak to any statute of limitations or tolling provisions regarding fire insurance policies. Instead, Wis. Stat. § 893.12, the ‘[a]dvance payment[s]’ tolling statute relied upon by Wieting, is a general statute that applies to all personal injury and property damage actions. On the other hand, § 631.83(2) speaks specifically to fire insurance policies and clearly excepts such policies from the provisions of ch. 893. When two statutes relate to the same subject matter, the specific statute controls over the general statute. …

“We uphold the trial court’s ruling that the one-year limitation period set out in Wis. Stat. § 631.83(1), as extended to two years under the parties’ insurance contract, bars Wieting’s action.”

In addition, we agree with the trial court that there is no evidence that defendant engaged in any conduct that was so unfair and misleading that defendant should be estopped from asserting the statute of limitations defense.

“We agree with the trial court’s determination that ‘[Meridian] did not engage in any behavior that was unfair or misleading, and it did not engage in any misrepresentations. It did not engage in any behavior contrary to public policy.’ From the very outset, Meridian was, in the trial court’s words, ‘up front’ with its denial of Wieting’s roof damage claim.

“And while offering to reconsider if adequate proof to the contrary was proffered, Meridian never wavered from its stance denying the claim. Each and every letter from Pritchett to Wieting or its representatives reconfirmed that Meridian was standing by its denial letter of May 14, 2001. In addition, each and every letter expressly reserved Meridian’s rights and defenses under the policy. Given this repeated warning, we are hard pressed to say that Meridian engaged in fraudulent, inequitable, unfair or misleading conduct sufficient to outweigh the public interest served by the law of statute of limitations.”

Judgment dismissing plaintiff’s complaint is affirmed.

Recommended for publication in the official reports.

Dist II, Calumet County, Poppy, J., Nettesheim, J.

Attorneys:

For Appellant: Patrick J. Coffey, Appleton

For Respondent: James A. Baxter, Milwaukee; Rebecca E. Leair, Milwaukee