Wisconsin Business and Commercial Litigation

In Tews v. NHI, LLC, 2010 WI 137 (Dec. 21, 2010), the Wisconsin Supreme Court addressed the relation back of pleadings by a plaintiff to avoid the statute of limitations.  Tews was injured when he stumbled into a transformer station operated by WEPCo.  Unfortunately, and for a number of reasons, he named WEEnergies, among others, in his complaint, and didn’t add WEPCo until after the statute had run.  When WEPCo moved to dismiss the complaint, Tews argued that his complaint should relate back because WEPCo had notice of the claim and but for a mistake, would have been properly named.

The procedural facts are too complicated to list here.  Suffice it to say that the Court read the relation back principle expansively to give Tews another kick at the cat:

The purpose of the relation-back statute, Wis. Stat. § 802.09(3),⁽²⁾ is to ameliorate the effect of the statute of limitations in a situation where the opposing party has received fair notice of the claim. When a defendant is added as a party after the applicable limitations period and all the requirements of the relation-back statute are satisfied, fair notice has been provided, and the added defendant has been given the full benefit of the protections that the statute of limitations was intended to provide.

The relation-back statute as applied here requires first that the claim asserted in the second amended complaint arose out of the same transaction, occurrence, or event set forth in the original complaint. There is no dispute that this requirement is satisfied. Second, the relation-back statute requires that within the time period provided by law for commencing an action, WEPCo received such notice of the institution of the action that it will not be prejudiced in maintaining a defense on the merits. Third, the relation-back statute requires that within the time period provided by law for commencing an action, WEPCo knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against WEPCo.

One other interesting part of the opinion addresses just how to categorize motions to dismiss versus motions for summary judgment, and more importantly, whether a response to a summary judgment motion is required to present facts by affidavit or not.  Both the majority and the dissent (Ziegler, Crooks, and Gableman) agree that a motion for summary judgment need not come forward with affidavits.  However, the dissent implies that respondents must present their facts by affidavit, while the majority requires only that the facts be of record (admissions in responsive pleadings, for instance):

It bears emphasis that, even though the statute does not always require affidavits to be filed in a proceeding for summary judgment, the best and safest practice is to do so. Attorneys who fail to support or oppose a motion for summary judgment with an affidavit do so at their own peril.

The discussion, both of the relation back principle and the evidentiary requirements to oppose a motion for summary judgment are well worth the read.

Transformer photo courtesy MontyPython’s flickr gallery via this creative commons license.

In Turner v. Sanoski, the Wisconsin Court of Appeals addressed the statute of limitations for a malicious prosecution claim arising in Douglas County.  For those of you who hate to wade through text to get to the answer, I’ll cut to the chase:

because malicious prosecution is an intentional tort to the person, the WIS. STAT. § 893.57 two-year statute of limitations applies

Seems to make sense, given the statute’’s language that says it applies to “other intentional tort to the person.”  What’s surprising is that this is the first published decision on this topic in almost 30 years.

In the Wisconsin Law Journal, Jack Zemlicka writes about a potential statutory change that would increase the statute of limitations on an intentional cause of action from two years to three years.  The additional time would bring the statute on intentional claims into line with the statue for negligent claims, which is already three years. 

From a practical perspective, it may not make much of a difference, except in cases where there are likely to be claims of both negligent and intentional action.  For instance, negligent hiring and supervision claims often include claims of intentional action by the employee, or claims of inadequate security which often include claims of an underlying attack by a patron or invitee. 

This change might also curb attempts by plaintiffs’ counsel to characterize intentional behavior as negligent in order to obtain the benefit of a longer statute of limitation.  While not often successful, this strategy can cause expensive motion practice which increase settlement leverage.