WI Supreme Court considers statutes of repose, limitations.

Byline: David Ziemer

In the case of Landis v. Physicians Insurance Co., 2001 WI 86, the Wisconsin Supreme Court held that the phrase, "any applicable statute of limitation," as used by the legislature in the medical malpractice statutes, referred to statutes of repose, as well as statutes of limitation.

Now the court must decide whether Landis functionally overruled Leverence v. United States Fidelity & Guaranty, 158 Wis.2d 608, 456 N.W.2d 312 (Ct.App.1990), a 1990 court of appeals case in which a clear distinction between the two was recognized in the state's borrowing statute, sec. 893.07.

To that end, the court heard oral arguments on Jan. 16, in the case of Martin Wenke, et al. v. Gehl Co. Depending on the breadth of the court's ultimate holding, however, the case could result in all references by the legislature to statutes of limitation being construed to include statutes of repose.

The case involves a Sept. 12, 1997, farm injury in Iowa. Martin Wenke's right arm was severed while he was operating a hay baler manufactured many years earlier by the Gehl Company of West Bend, Wisconsin.

Wenke brought a product liability action against Gehl Co. in Wisconsin state court on Aug. 18, 1999. Gehl moved to dismiss the claim, arguing that Iowa's statute of repose provided that no product liability action could be filed more than 14 years after the product was purchased. The motion was rejected by Washington County Circuit Court Judge Patrick J. Faragher, but Gehl renewed its motion after the Landis decision.

Judge Faragher, although acknowledging that Landis had not explicitly overruled Leverence, dismissed Wenke's action. Wenke appealed, and the Court of Appeals certified the appeal to the Supreme Court, which accepted review.

Wisconsin's borrowing statute, sec. 893.07, provides: "(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state. (2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state."

Wenke's action against Gehl, a Wisconsin corporation, would not be time-barred if the accident had occurred in Wisconsin, because Wisconsin has a three-year statute of limitation, and no statute of repose for product liability actions.

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