Sec. 893.22 does not apply when disabled person dies

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When a disabled person dies, sec. 893.16 provides the statute of limitations for commencing action of her behalf, the Wisconsin Supreme Court held on June 2.

From Mar. 29, 1994, to Dec. 3, 1996, Lucille Genevieve Yox was a resident of St. Francis Home. During that time, and until her death on Aug. 15, 2000, Yox suffered from Alzheimer’s disease, a "mental illness" within the meaning of sec. 893.16.

On Aug. 12, 2002, Julie Ann Walberg was appointed special administrator for Yox’s estate. That same day, Walberg commenced an action for negligence and breach of contract against St. Francis Home, Inc. and Catholic Charities Bureau, Inc., relating to Yox’s care at St. Francis Home.

St. Francis asserted that the action was time-barred pursuant to sec. 893.22. Douglas County Circuit Court Judge George L. Glonek agreed and dismissed the action, concluding that the relevant statute of limitations was not two years from Yox’s death under sec. 893.16, but rather one year under sec. 893.22.

Walberg appealed, and the court of appeals reversed in a published decision, Walberg v. St. Francis Home, Inc., 2004 WI App 120, 274 Wis.2d 414, 683 N.W.2d 518.

The Supreme Court accepted review, and affirmed the court of appeals in a unanimous decision by Justice Ann Walsh Bradley.

The Statutes

Section 893.22 provides: "Limitation in case of death. 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 provides, "Person under disability. (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 prescribed in this chapter may not be extended for more than 5 years.

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

St. Francis argued that sec. 893.22 governs all actions brought by an estate after the injured party’s death, and limits the period for any existing claims to one year, causing Walberg’s claims to be time-barred. Walberg argued that sec. 893.22 extends, rather than restricts, the time period for commencing an action of a deceased claimant.

The court agreed with Walberg, holding that the statute is a saving statute, not a statute of limitation. Thus, the effect of the statute is only to give a deceased person’s estate more time to commence an action that otherwise would have less than one year after the death in which to be brought.

In so holding, the court affirmed the continuing vitality of previous court decisions interpreting the predecessor statute, sec. 4234.

In Curran v. Witter, 68 Wis. 16, 22, 31 N.W. 705 (1887), the court examined that statute, 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." Because Curran had died more than one year before the statute ran against the claim, the court held that Section 4234 had no application to the action.

In Palmer v. O’Rourke, 130 Wis. 507, 511, 110 N.W. 389 (1907), a conversion action, the court wrote, "The death of the person to whom the right of action accrues does not extend such time unless such death occurs during the last of the six years."

Rejecting St. Francis’ questioning of the reasoning in Curran and Palmer, the court explained the statute as follows: "Examining the language of Wis. Stat. Sec. 893.22, three preconditions are specified: (1) a person dies; (2) before the expiration of the time limited for the commencement of an action; and (3) the cause of action survives the person’s death. If these are met, then the statute allows for commencement of an action by the person’s representatives only when two further criteria are satisfied: the action is commenced within one year of the person’s death and whatever time remaining under the applicable statute of limitations passes."

The court used a hypothetical to explain why its interpretation remains "obvious": "Suppose, for instance, a claimholder died with two years remaining on the statute of limitations. If Wis. Stat. Sec. 893.22 applied, it would allow a claim to be asserted after the expiration of the remaining two years on the statute of limitations and within one year from the person’s death. Such a reading, of course, renders the statute internally inconsistent."

Turning to sec. 893.16, the court concluded that death constitutes a cessation of disability, and therefore, the statute applies, giving two reasons. First, the court found, "to suggest that disability somehow survives a person’s death would belie common sense." Second, the court noted a wealth of authority from other jurisdictions holding that disability is removed by death.

Application

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Applying the statutes to Yox’s case, the court found that both the tort and contract claims were timely.

Both claims accrued on Dec. 3, 1996, so, had she not died, she would have had until Dec. 3, 2007 to bring the contract action (six years, plus five), and until Dec. 3, 2004 to bring the tort action (three years, plus five). Section 893.22 is inapplicable because neither claim was in its final year of the limitation when she died on Aug. 15, 2000.

Using sec. 893.16(1) instead, the court concluded, "Because death ceased the disability on August 15, 2000, pursuant to sec. 893.16(1), Walberg had until August 15, 2002, to commence the negligence action on behalf of Yox. However, as to the contract cause of action, she was not required to commence the action by Aug. 15, 2002. This is because sec. 893.16(2) provides that the underlying period of limitation cannot be shortened. Because the cause of action accrued on Dec. 3, 1996, the underlying six-year period of limitation extended until Dec. 2002. Thus, because Walberg brought suit Aug. 12, 2002, we conclude that both claims were timely commenced."

Accordingly, the court affirmed the court of appeals’ decision that reversed the circuit court’s dismissal.

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David Ziemer can be reached by email.