Civil Procedure — statute of limitations — service

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Wisconsin Court of Appeals

Civil

Civil Procedure — statute of limitations — service

Defendants American Family Mutual Insurance Company, Gage Creighbaum, Sherry Lagios, and Dimitrios Lagios appeal from an order denying their motion to dismiss. The trial court held that the defendants waived their statute of limitations defense by not raising it prior to filing their notice of appearance and serving their request for admissions in response to Maas’s amended complaint. The court concluded that, in light of the waiver, the action was properly commenced and that Maas’s amended complaint, filed almost six months after the close of the three-year statute of limitations period, related back to the original complaint filed two days before the expiration of that period. The defendants contend the statute of limitations ran when Maas failed to commence the action by serving them with the original summons and complaint within the ninety-day period permitted by Wis. Stat. § 801.02(1) (2009-10),[2] and that Maas’s claims are therefore barred. We agree and reverse. Not recommended for publication in the official reports.

2011AP1661 Maas, et al. v. American Family Mutual Insurance Company, et al.

Dist II, Fond du Lac County, Grimm, J., Gundrum, J.

Attorneys: For Appellant: Klasen, Charles W., Appleton; For Respondent: Fry, Kristi L., Fond du Lac; Nelson, Christine K., Waukesha