Statute of limitations does not apply to disabled.

• Author: Ziemer, David

Byline: David Ziemer

When a mentally disabled person dies before expiration of time for commencement of an action, sec. 893.22 does not limit the estate to bringing suit within one year, the Wisconsin Court of Appeals held on May 4.

Between March 29, 1994, and Dec. 3, 1996, Lucille Genevieve Yox was a resident of the St. Francis Home. At all material times and until her death on Aug. 15, 2000, Yox suffered from Alzheimer's disease.

Alzheimer's disease is indisputably a "mental illness" for purposes of sec. 893.16, the "person under disability" statute of limitations.

On Aug. 12, 2002, Julie Ann Walberg was appointed special administrator for Yox's estate and, on that date, she commenced an action against St. Francis and Catholic Charities Bureau, Inc., claiming negligence for personal injuries Yox sustained while at St. Francis and breach of contract for St. Francis' substandard care during Yox's time at the facility.

St. Francis answered that the action was time-barred and later filed a motion to dismiss. Douglas County Circuit Court Judge George L. Glonek granted the motion, concluding that the relevant statute of limitations was not two years from Yox's death under sec. 893.16, as Walberg argued, but instead was one year from Yox's death under sec. 893.22. Accordingly, the court found the action time-barred.

Walberg appealed, and the court of appeals reversed in a decision by Judge Thomas Cane.

Section 893.22 states in relevant part: "If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person's representatives after the expiration of that time and within one year from the person's death."

Section 893.16 states in relevant part: "(1) If a person entitled to bring an action is, at the time the cause of action accrues ... mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

"(2) Subsection (1) does not shorten a period of limitation otherwise prescribed."

The court rejected the trial court's conclusion that, upon a person's death, sec. 893.22 automatically shortens the period of limitations for any of that person's existing claims to one year.

The court cited Curran v. Witter, 68 Wis. 16, 22, 31 N.W. 705 (1887), in which...