Wisconsin

 
 
 
 
 
 
 
 
 
 
 
 
 
 

Statutes of Limitations (WISCONSIN)

Personal Injury - 3 yrs. [W.S.A. 893.54]

Wrongful Death - 3 yrs. [W.S.A. 893.54]

Med Mal - 3 yrs. from the date of the injury or 1 yr. from discovery, whichever comes first (but no later than 5 yrs. from act/omission) [W.S.A. 893.55]

Property Damage - 6 yrs. [W.S.A. 893.52]

Contracts (Oral and Written) - 6 yrs. [W.S.A. 893.43]

Contracts for of Sale (goods) and Breach of Warranty - 6 yrs. (from tender of delivery) [W.S.A. 402.725]

Application of Foreign Statutes of Limitation - If an action is brought in WI on a foreign cause of action and the foreign applicable period of limitation has expired, no action may be maintained in WI [W.S.A. 893.07]

 

“Discovery rule” for determining accrual of a limitations period is adopted for all tort actions (other than those already governed by a legislatively created discovery rule) and such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should have been discovered, whichever occurs first [Hansen v. A.H. Robins, Inc., 335 N.W.2d 578 (Wis. 1983)]

Statutes of Repose (WISCONSIN)

Products - 15 yrs. [W.S.A. 895.047]

Construction of Real Property - 7 yrs. [W.S.A. 893.89]

 

 

 

Claims Against Public/Gov. Entities (NOTE: “Sovereign Immunity” Limitations May Apply) (WISCONSIN)

Against State - Notice within 120 days [W.S.A. 893.82]

Against Gov. Bodies - Notice within 120 days; cannot file suit until notice of claim disallowance is received (or until 120 days after notice of claim); must file suit within 6 mos. thereafter [W.S.A. 893.80] 

 

 

 

Comparative Negligence (WISCONSIN)

Modified comparative (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [W.S.A. 895.045]

 

 

 

Made Whole Doctrine (MWD) (WISCONSIN)

Very broad and strict application. The common law MWD cannot be circumvented by contract [Ruckel v. Gassner, 646 N.W.2d 11 (Wis. 2002)]

 

MWD precluded an automobile Insurer from recovery of payments made under MedPay provisions of its policy out of the monies received by Insured in a settlement with Tortfeasors when the settlement figure was less than the total damages sustained by Insured as the result of an automobile accident. [Rimes v. State Farm Mut. Auto. Ins. Co., 316 N.W.2d 348 (Wis. 1982)].  Insured has priority over his Insurer when there is an inadequate pool of funds. [Garrity v. Rural Mut. Ins. Co., 253 N.W.2d 512 (Wis. 1977]

 

The test of “wholeness” depends upon whether Insured has been completely compensated for all the elements of damages, not merely those damages for which Insurer has indemnified Insured [Rimes v. State Farm Mut. Auto. Ins. Co., 316 N.W.2d 348 (Wis. 1982)].

 

Courts conduct what is now known as “Rimes hearings” (a “trial” is conducted before the court solely to ascertain the damages suffered by Insured; if the damages found exceed those actually recovered by Insured from all sources, Insured will be found to be less than whole and will not be required to disgorge any of the amounts by which he has been indemnified [Muller v. Society Ins., 750 N.W.2d 1 (Wis. 2008)].

 

However, MWD is not a simplistic or absolute rule and subrogation depends upon the application of equitable principles to the facts of each case, and those principles are concerned with preserving the rights of both the insured and subrogated insurer.  In short, sometimes, MWD does not apply [Vogt v. Schroeder, 383 N.W.2d 876 (Wis. 1986)]  MWD should not control where the insured plaintiff and the subrogated insurer are not competing for a limited pool of funds [Blue Cross & Blue Shield United of Wisconsin v. Fireman's Fund Ins. Co. of Wisconsin, 411 N.W.2d 133 (Wis. 1987)]

 

 

 

Economic Loss Doctrine (ELD) (Assuming No Injury to Person or Damage to “Other Property”) (WISCONSIN)

Applied/recognized.  Purchaser of a product cannot recover from the manufacturer on a tort theory for damages that are solely economic [1325 North Van Buren, LLC v. T-3 Group, Ltd., 716 N.W.2d 822 (Wis. 2006)].  Contract to renovate warehouse into condominiums and provide construction management services was a mixed contract predominantly for a product, rather than services, and, thus, ELD applied to bar project owner’s negligence claim against general contractor for construction defects and damage to the building or components [1325 North Van Buren, LLC v. T-3 Group, Ltd., 716 N.W.2d 822 (Wis. 2006)]

 

Exception - ELD did not bar purchasers of commercial real estate from bringing claims against vendor for intentional/fraudulent misrepresentations and from claims under the false advertising statute against vendor [Kailin v. Armstrong, 643 N.W.2d 132 (Wis. App. 2002)]

 

 

 

Certificate/Affidavit Of Merit Requirements (Claims Against Licensed Professionals) (WISCONSIN)

No requirement.

 

 

 

Landlord/Tenant Subrogation (WISCONSIN)

Subrogation allowed.  Statute providing that Tenant is required to pay for damage to property caused by his negligence precludes Tenant from claiming co-insured status under Landlord’s fire insurance policy [Bennett v. West Bend Mut. Ins. Co., 546 N.W.2d 204 (Wis. App. 1996)]

 

 

 

Reimbursement of Deductible(s) (WISCONSIN)

No law available.

 

 

 

MedPay and PIP (WISCONSIN)

Med Pay - Subrogation allowed (insured must be made whole first).  PIP - No subrogation allowed and/or no such coverage available.

 

 

 

Liability of Parents (WISCONSIN)

$5,000 (+ costs and atty fees), $20,000 if recovery by school board or school - liability for damages to property, for the cost of repairing/replacing property or removing the marking/drawing/writing/etching from property, for the value of unrecovered stolen property (different monetary limits apply), or for personal injury attributable to a willful, malicious, or wanton act of the child [W.S.A. 895.035].  Any negligence or willful misconduct of a minor driver is imputed to the parent(s) who signed the application for minor’s license.  [W.S.A. 343.15].

 

 

 

Joint Liability (WISCONSIN)

Several liability (Plaintiff can recover from each Defendant only that Defendant’s share of liability): (1) strict liability cases: or (2) Defendants who are less than 51% at fault. 

 

Joint and several liability (Plaintiff may recover all damages from any Defendant regardless of Defendant’s individual share of liability): (1) Defendants who are 51% of more at fault; or (2) Defendants who acted in a concerted way [W.S.A. 895.045]

 

 

 

Independent Cause of Action for Evidence Spoliation (WISCONSIN)

No independent tort actions for the intentional and negligent spoliation of evidence have been recognized [Estate of Neumann ex rel. Rodli v. Neumann, 626 N.W.2d 821 (Wis. App. 2001)]

 

 

 

Conflicts of Law (WISCONSIN)

Torts - In order to determine the “most significant relationship,” consideration should be given to the policies and interests of the forum state, the tort state, and of other states that may have an interest by virtue of the domicile of the parties or other relevant factors [Wilcox v. Wilcox, 133 N.W.2d 408 (Wis. 1965)].  Contracts - Court will consider whether contacts of one state to the facts of the case are so obviously limited and minimal that application of that state’s law constitutes officious intermeddling and, if no officious intermeddling would result, the following choice-influencing considerations are applied: predictability of results, maintenance of interstate order, simplification of judicial task, advancement of forum state’s governmental interest, and application of the better rule of law [American Std. Ins. Co. v. Cleveland, 369 N.W.2d 168 (Wis. App. 1985)]