1973 c. 333
;
1977 c. 29
;
1979 c. 221
;
1979 c. 323
s.
30
;
1979 c. 355
; Stats. 1979 s. 893.82;
1983 a. 27
;
1985 a. 66
,
340
;
1987 a. 342
;
1987 a. 403
s.
256
;
1989 a. 187
,
206
,
359
;
1991 a. 39
,
269
;
1993 a. 27
,
28
;
1995 a. 158
,
201
;
1997 a. 133
;
2003 a. 111
;
2005 a. 96
;
2007 a. 79
,
130
;
2009 a. 42
,
278
;
2011 a. 32
;
2013 a. 241
.
Judicial Council Committee's Note, 1979:
This section is previous s. 895.45 renumbered for more logical placement in restructured ch. 893. The previous 90-day time period in which to file written notice of a claim against an employee of the state of Wisconsin has been increased to 120 days to make the time period consistent with the period for filing notice of claims with other governmental bodies allowed in s. 893.80. (See note following s. 893.80). [Bill 326-A]
The court had no jurisdiction over state employees alleged to have intentionally damaged the plaintiff when the complaint failed to comply with the notice of claim statute. Elm Park Iowa, Inc. v. Denniston,
92 Wis. 2d 723
,
286 N.W.2d 5
(Ct. App. 1979).
Noncompliance with the notice of injury statute barred suit even though the defendant failed to raise the issue in responsive pleadings. Mannino v. Davenport,
99 Wis. 2d 602
,
299 N.W.2d 823
(1981).
The court properly granted the defendant's motion to dismiss since a notice of claim of injury was not served upon the attorney general within the 120 day limit. Ibrahim v. Samore,
118 Wis. 2d 720
,
348 N.W.2d 554
(1984).
Sub. (3) does not create an exception for a plaintiff who is unaware that a defendant is a state employee. Renner vs. Madison General Hospital,
151 Wis. 2d 885
,
447 N.W.2d 97
(Ct. App. 1989).
Under an administrative-services-only state group insurance contract, the insurer is an agent of the state, and the plaintiff must comply with the notice provisions under this section to maintain an action. Smith v. Wisconsin Physicians Services,
152 Wis. 2d 25
,
447 N.W.2d 371
(Ct. App. 1989).
A possible finding that a state employee was acting as an apparent agent of a non-state hospital does not permit the maintenance of a suit against the state employee absent compliance with the notice requirements. Kashishian v. Port,
167 Wis. 2d 24
,
481 N.W.2d 227
(1992).
Actual notice and lack of prejudice to the state are not exceptions to the 120-day notice requirement. Carlson v. Pepin County
167 Wis. 2d 345
,
481 N.W.2d 498
(Ct. App. 1992).
The certified mail requirement under sub. (5) is subject to strict construction. Kelley v. Reyes,
168 Wis. 2d 743
,
484 N.W.2d 388
(Ct. App. 1992).
Records relating to pending claims need not be disclosed under s. 19.35. Records of nonpending claims must be disclosed unless an in camera inspection reveals attorney-client privilege would be violated. George v. Record Custodian,
169 Wis. 2d 573
,
485 N.W.2d 460
(Ct. App. 1992).
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan,
188 Wis. 2d 157
,
524 N.W.2d 630
(1994).
Sub. (5) requires a notice of claim to be sworn to and to include evidence showing that an oath or affirmation occurred. Kellner v. Christian,
197 Wis. 2d 183
,
539 N.W.2d 685
(1994),
93-1657
.
The discovery rule does not apply to sub. (3). The failure to apply the discovery rule to sub. (3) is not unconstitutional. Oney v. Schrauth,
197 Wis. 2d 891
,
541 N.W.2d 229
(Ct. App. 1995),
94-3298
.
The constitutional mandate of just compensation for a taking of property cannot be limited in amount by statute. A taking may result in the state's obligation to pay more than $250,000. Retired Teachers Association v. Employee Trust Funds Board,
207 Wis. 2d 1
,
558 N.W.2d 83
(1997),
94-0712
.
A state “agent" under sub. (3) means an individual and not a state agency. Miller v. Mauston School District,
222 Wis. 2d 540
,
588 N.W.2d 305
(Ct. App. 1998),
97-1874
.
A defendant is not relieved from filing a notice of claim under this section when a state employee also performs functions for a private employer. The notice of claim provisions are constitutional. Riccitelli v. Broekhuizen,
227 Wis. 2d 100
,
595 N.W.2d 392
(1999),
98-0329
.
This section does not provide an administrative remedy for purposes of filing a federal civil rights claim under 42 USC 1983 and therefore the failure to file a notice of claim under this section was not a failure to exhaust administrative remedies justifying denial of a petition. State ex rel. Ledford v. Circuit Court for Dane County,
228 Wis. 2d 768
,
599 N.W.2d 45
(Ct. App. 1999),
99-0939
.
The factors relevant to a master/servant relationship are relevant to deciding whether a person is a state employee under sub. (3). A state employee's affiliation with another entity does not vitiate his or her status as a state employee for purposes of sub. (3) as long as the act sued upon grows out of or was committed in the course of duties as a state employee. Lamoreux v. Oreck,
2004 WI App 160
,
275 Wis. 2d 801
,
686 N.W.2d 722
,
03-2045
.
A notice is properly served on the attorney general under sub. (5) if a claimant sends the notice by certified mail addressed to the attorney general at his or her capitol office, Main Street office, post office box, or any combination of those three addresses, assuming that the notice otherwise complies with sub. (5). Hines v. Resnick,
2011 WI App 163
,
338 Wis. 2d 190
,
807 N.W.2d 687
,
11-0109
.
Kellner
sets forth two requirements in order for a notice of claim to be properly “sworn to" under sub. (5). First, a formal oath or affirmation must be taken by a claimant. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred. Neither requirement demands that a false notice of claim be punishable for perjury or that a notice of claim must contain a statement by a notary that an oath or affirmation was administered. Estate of Hopgood v. Boyd,
2013 WI 1
,
345 Wis. 2d 65
,
825 N.W.2d 273
,
11-0914
.
Sub. (3)'s time-of-the-event requirement only requires a plaintiff to include the time of the event giving rise to a claim when it is possible to do so. To require otherwise essentially bars recovery for plaintiffs with claims that are not set in a single moment in time and creates an absurd result. The plaintiffs' claims in this case did not arise from a singular event occurring at a fixed moment in time, but were based on numerous events that transpired over a duration of time. Requiring them to set forth the exact moment in time that each of these events occurred was unreasonable. Mayo v. Boyd,
2014 WI App 37
,
353 Wis. 2d 162
,
844 N.W.2d 652
,
13-1578
.
Subsection (2m) mandates strict compliance with the requirements of this section in order to institute an action against a state employee. Delivering notice by personal service does not comply with the plain language of sub. (5), which requires service of notice of claim on the attorney general by certified mail. Sorenson v. Batchelder,
2016 WI 34
,
368 Wis. 2d 140
, ___ N.W.2d ___,
14-1213
.
Members of the Investment Board, Employee Trust Fund Board, Teachers Retirement Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under this section and are entitled to the state's indemnification for liability under s. 895.46.
OAG 2-06
.
This section provides no affirmative waiver of the state's immunity to suit, but forecloses suit when its procedures are not followed. The state has not waived its immunity under the federal Fair Labor Standards Act. Luder v. Endicott,
86 F. Supp. 2d 854
(2000).
The injury caused by a misdiagnosis arises when the misdiagnosis causes greater harm than existed at the time of the misdiagnosis. Under sub. (6), discovery occurs when the plaintiff has information that would give a reasonable person notice of the injury, that is, of the greater harm caused by the misdiagnosis. McCulloch v. Linblade,
513 F. Supp 2d 1037
(2007).