Disability Case Analysis

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Although the decision affirms the court of appeals, it nevertheless changes the relevant law, because the court of appeals declined to consider whether death effects cessation of disability. Walberg v. St. Francis Home, Inc., 2004 WI App 120, 274 Wis.2d 414, 683 N.W.2d 518, 522.

The court of appeals found it unnecessary to decide the issue, because it found the claims timely brought under either interpretation. Had the court of appeals decision remained the final word on the issue, it would have been arguable in similar cases that the statute of limitations is much longer than it is in light of the Supreme Court’s holding.

As the court of appeals noted, if death did not cause the disability to cease, Walberg would have had until Dec. 3, 2007 to bring the contract action and Dec. 3, 2004 to bring the negligence action. By explicitly holding that death causes disability to cease, the court eliminates the possibility for plaintiffs to bring suits long after death, and after the normally applicable statute of limitation would expire.

There is a flaw in the court’s analysis, however, that attorneys and lower court judges should be aware of. While the court classifies sec. 893.22 as a "saving statute," rather than a statute of limitation, it fails to recognize that sec. 893.16 also operates as a "saving statute."

This is best understood by simply comparing the contract and the tort claim. Barring any disability, the tort claim would have expired, pursuant to the statute of limitations for negligent torts, on Dec. 3, 1999, three years after it accrued. Operation of sec. 893.16, however, tolls that statute of limitations for two years after cessation of disability (or death), provided however that it cannot be tolled in any event for more than five years. Thus, in the case at bar, the statute extends the statute of limitations to Aug. 15, 2002 (two years after Yox’s death).

The contract claim is another matter, however. Even without any disability, that claim, pursuant to the six-year statute of limitations, would not have expired until Dec. 3, 2002. If sec. 893.16 actually had any relevance to the claim, it would only have extended the claim until Aug. 15, 2002. Because subsection (2) of the statute provides that the underlying statute of limitations can never be shortened, the court correctly concludes that the claim did not expire until Dec. 3, 2002.

However, it would be more correct to simply state that, just as sec. 893.22 is a saving statute that does not apply to either of Yox’s claims because Yox did not die within one year of the expiration of either of her claims, sec. 893.16 is also a saving statute that does not apply to the contract claim, because the disability did not cease within two years of its expiration.

A "saving statute" saves actions that would otherwise be barred by a statute of limitation. The contract claim was not barred by the six-year statute of limitations in any event. Thus, there was nothing for sec. 893.16 to save.

The existence of subsec. (2) in sec. 893.16 does not change the analysis. Even without this provision, the only logical interpretation of subsec. (1) would be that, just as sec. 893.22 "obviously" does not terminate a claim for which the statute of limitations has not run if the plaintiff dies, neither does sec. 893.16(1), if the person ceases to be disabled. Simple application of the "obvious" reasoning in Curran v. Witter, 68 Wis. 16, 31 N.W. 705 (1887) to sec. 893.16 would compel the same ultimate result. Subsection (2) only codifies the obvious.

Wisconsin courts spent years confused by the difference between statutes of repose and statutes of limitation (see Tomczak v. Bailey, 206 Wis.2d 405, 557 N.W.2d 840 (Ct.App.1996), overruled, 218 Wis.2d 245, 578 N.W.2d 166 (1998)), before the Supreme Court issued a lengthy clarification of the differences between the two in Landis v. Physicians Ins. Co. of Wisconsin, Inc., 2001 WI 86, 245 Wis.2d 1, 628 N.W.2d 893, 900-902.

	Related Links Wisconsin Court System Related Article Sec. 893.22 does not apply when disabled person dies

The decision in the case at bar likewise has the potential to create confusion, by repeatedly classifying sec. 893.22 as a saving statute, without making the connection that sec. 893.16 is also one, and by applying sec. 893.16 to save both claims, when the contract claim needs no saving.

Even though it makes no difference to whether Walberg can pursue her claim, the issue is not purely academic. In Wenke v. Gehl, 2004 WI 103, 274 Wis.2d 220, 682 N.W.2d 405, the Supreme Court had to decide whether Wisconsin’s borrowing statute for foreign statutes of limitations, sec. 893.07, also applies to foreign statutes of repose.

At some point, courts will also have to consider whether the borrowing statute also adopts foreign saving statutes, in addition to statutes of limitation and repose. Step one in such cases will be correctly classifying the foreign statute at issue. By addressing two saving statutes, but only identifying one as such, this opinion will complicate that task.

– David Ziemer

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David Ziemer can be reached by email.