Aetna Casualty & Surety Co. v. Owen

530 N.W.2d 51, 191 Wis. 2d 744, 1995 Wisc. App. LEXIS 241
CourtCourt of Appeals of Wisconsin
DecidedFebruary 22, 1995
DocketNo. 94-1462
StatusPublished
Cited by2 cases

This text of 530 N.W.2d 51 (Aetna Casualty & Surety Co. v. Owen) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Casualty & Surety Co. v. Owen, 530 N.W.2d 51, 191 Wis. 2d 744, 1995 Wisc. App. LEXIS 241 (Wis. Ct. App. 1995).

Opinion

ANDERSON, P.J.

The Aetna Casualty and Surety Company appeals from a summary judgment dismissing its subrogated claim because the period of limitations had lapsed before Aetna filed its action. Aetna asserts that the statute of limitations had been tolled for the period of time its insured's separate claim was pending. Because we conclude that the pendency of an action does not toll the statute of limitations for any independent subrogated claim arising out of an occurrence that caused the injury to the insured, we affirm the trial court.

[746]*746On June 17,1987, two minor children were playing with fireworks and started a fire that destroyed an unoccupied dwelling owned by Pine Wood Creek Development, Inc. (Pine Wood) and insured by Aetna. Aetna paid Pine Wood's full claim of $62,573 and under the terms of the insurance policy became subrogated to the rights of Pine Wood. On January 21, 1988, Pine Wood started an action to recover the depreciated market value of the dwelling and lost rents — damages not covered under the Aetna policy. Pine Wood named the two minor children, their parents and the parents' insurers as defendants; Pine Wood did not name Aetna in the action. However, Aetna was independently aware of the action because of an exchange of correspondence with the insurers of one set of parents. Aetna decided not to pursue its subrogation interests until the outcome of Pine Wood's action. Pine Wood and the principal defendants entered into a stipulation and order for dismissal of the action on October 15,1990.

Aetna started an action to recover the total amount of the claim against the two minor children, their parents and the parents' insurers on July 15, 1993. On February 15, 1994, the trial court granted the defendants' motions for summary judgment holding that Aetna's action was barred by the statute of limitations, § 893.52, STATS. In reaching this conclusion, the trial court rejected Aetna's argument that under §893.13(2), Stats., the filing of Pine Wood's action tolled the running of the statute of limitations. The trial court reasoned that Pine Wood's action sought damages not covered in the fire loss payment from Aetna. The trial court concluded that because Pine Wood's action was independent of Aetna's subro-gation interest, the filing of the action did not toll the statute of limitations.

[747]*747Aetna concedes, as it must, that § 893.52, STATS., imposes a six-year statute of limitations for damages to real property.1 Aetna places its reliance on § 893.13(2), Stats.:

A law limiting the time for commencement of an action is tolled by the commencement of the action to enforce the cause of action to which the period of limitation applies. The law limiting the time for commencement of the action is tolled for the period from the commencement of the action until the final disposition of the action.

Aetna contends that this statute compels that the period of time between the commencement of Pine Wood's action, January 21, 1988, and the dismissal of its action, October 15, 1990, is not to be counted in computing the six years in which it has to commence an action to recover its fire loss payment. Aetna concludes that its commencement of the action on July 15,1993, was within six vears of the fire.

In reviewing a summary judgment, we independently use the same well-known methodology employed by the trial court. See Fritsch v. St. Croix Central Sch. Dist., 183 Wis. 2d 336, 342, 515 N.W.2d 328, 330 (Ct. App. 1994). We limit our consideration to the question of law submitted because the material facts are not in dispute. This appeal turns on whether Pine Wood's commencement of an action on January 21, 1988, tolled the running of § 893.52, STATS., until [748]*748the dismissal of the action on October 15, 1990. The answer to this question is controlled by statute and our analysis is de novo. See Fox v. Smith, 159 Wis. 2d 581, 584, 464 N.W.2d 845, 847 (Ct. App. 1990).

Aetna begins with the proposition that Pine Wood's claims for relief arose from a single cause of action and a grouping of facts falling into a single occurrence — the fire that destroyed the dwelling. See Caygill v. Ipsen, 27 Wis. 2d 578, 582, 135 N.W.2d 284, 286 (1965). It reasons that under the theory of subrogation it assumes the rights or claims of its insured when it pays the fire loss and that these rights are no greater than the rights the insured would have had. Aetna concludes that subrogation does not create a second or separate cause of action with secondary or lesser legal rights.

From this point, Aetna argues that under Bruner v. Kops, 105 Wis. 2d 614, 314 N.W.2d 892 (Ct. App. 1981), when its insured commenced the action on January 21, 1988, the statute of limitations was tolled for Aetna's subrogation claim because all parts of the entire claim arising out of a cause of action were inextricably joined together. Under Aetna's theory an insured's claim and an insurer's subrogation claim are constituent parts of a cause of action and the commencement of a lawsuit on any constituent part tolls the statute of limitations as to all constituent parts.

We disagree. In Bruner, we held that the joinder principles in § 803.03(2), STATS., compel the conclusion that there is only one cause of action and that the commencement of an action by the principal claimant effectively commences action on all of the constituent parts. Bruner, 105 Wis. 2d at 624-25, 314 N.W.2d at 897.

[749]*749However, Bruner is not as broad as it might at first blush seem to be. Bruner is easily distinguishable from this appeal. First, in Bruner the plaintiff brought an action for assault and battery seeking to recover damages that he had already recovered from the victim's compensation program under ch. 949, STATS. Bruner, 105 Wis. 2d at 616, 314 N.W.2d at 893. In this case, Pine Wood has limited its recovery to damages it has not recovered. Second, in Bruner the Department of Justice was found to be an indispensable party under the provisions of §§ 949.15 and 803.03(2), STATS. Bruner, 105 Wis. 2d at 622, 314 N.W.2d at 896. Here, because Pine Wood was seeking relief for damages not included in the fire loss payment from Aetna, Aetna is not an indispensable party because its claim was not subrogated to the claims pled by Pine Wood. Third, in Bruner the Department of Justice attempted to take affirmative steps to acknowledge its subrogation interest by assigning that interest to Bruner. Id. at 620, 314 N.W.2d at 895. Here, although Aetna was on notice that its insured had commenced an action, it purposefully elected not to take any action to either acknowledge or protect its interest.

We conclude that the solution to the issue before us is found in Anderson v. Garber, 160 Wis. 2d 389, 466 N.W.2d 221 (Ct. App. 1991). Anderson is an appeal and cross-appeal arising out of a medical malpractice action.

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530 N.W.2d 51, 191 Wis. 2d 744, 1995 Wisc. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-owen-wisctapp-1995.