Legislative Update: Wisconsin Legislature Extends Statute of Limitations for Intentional Torts

WDC Journal Edition: Spring 2010
By: Andrew Cook, The Hamilton Consulting Group

On February 11, 2010, Gov. Jim Doyle signed into law Senate Bill 182 (Act 120),[i] which changes the statute of limitations for intentional torts from two years to three years.

Prior to Act 120, Wisconsin law required that a lawsuit to recover damages for certain intentional torts had to begin within two years after the cause of action accrued. Act 120 changes the time period to begin within three years after the cause of action accrues and applies to injuries occurring on or after February 26, 2010 (date of enactment).

Proponents of the legislation argued that those who are injured as the result of an intentional act should have the same rights as those who are hurt through negligence, which has a three-year statute of limitations. In testimony[ii] submitted to the Senate committee during the public hearing on the legislation, they cited to an unpublished court of appeals case, Buckel et al. v. Allstate Indemnity et al.,[iii] as proof that the law was unfair. In Buckel, two people were injured when their motorcycle struck a "wall" of plastic wrap that was placed around two sign posts and across a road by teenage boys. The boys, along with their parents, were sued for negligence, which provides a three-year statute of limitations.

The plaintiffs in the case, however, failed to file the lawsuit within the requisite two-year statute of limitations for intentional torts. The court determined the case involved an intentional tort, and thus dismissed the case. Proponents of Act 120 argued that it does not make sense to have one date for filing an intentional tort lawsuit, and another for filing a negligence lawsuit. In addition, they argued that this distinction in Buckel resulted in the boys not being held accountable for their conduct and the injured cyclists not being compensated for their damages.

Act 120 passed on a voice vote in the Senate and met some resistance in the Assembly, but passed 62-32.

I. Additional Legislation Altering Statutes of Limitations

In addition to Act 120, two separate pieces of legislation are likely to pass this session that would extend the statute of limitations for certain types of causes of actions. Below is a summary of each bill.

A. Creating Cause of Action for Gender-based Harms with Seven-year Statute of Limitations

Assembly Bill 480/Senate Bill 337[iv] creates a new civil cause of action for acts of violence motivated by gender and establishes a seven-year statute of limitations. The Assembly passed Assembly Bill 480, and passage in the Senate seems certain.

As originally drafted, the legislation defined a "gender-based act" as "an act that is committed, at least in part, on the basis of the victim's gender." A number of groups raised concerns with the definition arguing that it was too vague and allowed a person to file a claim even if there was no act of violence or assault.

The bill was amended to address those concerns so that it only applies to a "physical act of violence" or involves sexual contact that is committed under coercive conditions or without consent.

B. Statute of Limitations for Medical Malpractice Claims Against State-run Institutions

Other pending legislation, Senate Bill 127,[v] seeks to extend the statute of limitations in cases involving state-run institutions, such as the University of Wisconsin Hospital. Under current law, if a person brings a claim to recover damages for medical malpractice that took place in a state-run hospital, the person must serve a notice of the claim with the attorney general within 180 days after the injury was discovered or should have been discovered.

Senate Bill 127 removes the 180-day requirement and replaces it with one requiring commencement of the lawsuit within the same time period as claims brought against a private health care provider. (Three years from the date of the injury or within one year from the date that the injury was discovered or should have been discovered, but not more than five years after the date of the act or omission that caused the injury).

Please feel free to email the author, Andrew Cook, (cook@hamilton-consulting.com) with any questions about these bills or other pending legislation.

[i] http://www.legis.state.wi.us/2009/data/SB182hst.ht...

[ii] http://www.legis.state.wi.us/lc/comtmats/files/sb0...

[iii] 2008 WI App 160, 314 Wis. 2d 507, 758 N.W.2d 224 (unpublished).

[iv] http://www.legis.state.wi.us/2009/data/AB480hst.html; http://www.legis.state.wi.us/2009/data/SB337hst.ht...

[v] http://www.legis.state.wi.us/2009/data/SB127hst.ht...