Coleman v. City of Milwaukee
This text of 319 N.W.2d 863 (Coleman v. City of Milwaukee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The single issue presented in this case is whether the applicable statutory limitation period for a claim alleging municipal liability for a motor vehicle accident is governed by the rule announced in Gutter v. Seamandel, 103 Wis. 2d 1, 308 N.W.2d 403 (1981). We conclude that Gutter is controlling and accordingly reverse the decision of the court of appeals.
[529]*529Briefly, the record reflects the following procedural chronology. An accident occurred on January 21, 1977, involving the plaintiff’s vehicle and a vehicle driven by a city of Milwaukee agent. The plaintiff served a claim for damages upon the city on September 1, 1978. There is no evidence that the city ever acted on that claim, and the plaintiff never received notice of disallowance of the claim. The plaintiff commenced this action on July 10,1980.
The city moved to dismiss the complaint on the grounds that it was not timely filed in accordance with sec. 845.05, Stats. 1975.1 The plaintiff argued that sec. 62.25, Stats. 1975,2 which requires service of notice of [530]*530disallowance upon the claimant to trigger the six-month limitation period, was applicable because sec. 345.05(3) incorporated the provisions of that section by reference. The city contended that sec. 345.05, which did not require service of notice of disallowance as a triggering mechanism, was controlling, and therefore, the six-month limitation period began 90 days after presentation of the claim and expired prior to the plaintiff’s commencement of this action. The circuit court granted the city’s motion and dismissed the action.
The issue presented to the court of appeals was whether the circuit court correctly concluded that sec. 345.05, Stats. 1975, rather than sec. 62.25, was controlling.3 The court of appeals affirmed the circuit court’s dismissal of the action in a decision dated and released July 9, 1981. This court, however, had discussed and resolved the issue concerning the interplay between secs. 345.05 and 62.25, just prior to the release of the court of appeals opinion in this case. See, Gutter v. Seamandel, supra, at 19-26, decided June 30,1981.
[531]*531In Gutter, this court specifically addressed the statutory construction problem at issue in the case at bar and concluded that sec. 62.25, Stats. 1975, was controlling. In accord with’ that conclusion, notice of disallowance was required to trigger the six-month statutory limitation period.
For the reasons set forth in Gutter, supra, at 19-26, sec. 62.25(1) (e), Stats. 1975, governs this action. Since no notice of disallowance was received by the plaintiff in the present case, the six-mónth limitation period was not triggered, and this action was timely commenced pursuant to the relevant statutory subsections.
Thus, we conclude that the circuit court erred in dismissing the action and the court of appeals erred in deciding the issue contrary to Gutter. We accordingly reverse the decision of the court of appeals and remand this matter to the circuit court for proceedings on the merits.
By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings not inconsistent with this decision.
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Cite This Page — Counsel Stack
319 N.W.2d 863, 107 Wis. 2d 528, 1982 Wisc. LEXIS 2558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-city-of-milwaukee-wis-1982.