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04/18/83 GEORGE A. KORKOW AND GERALD A. KORKOW v.

April 18, 1983

GEORGE A. KORKOW AND GERALD A. KORKOW, PLAINTIFFS-RESPONDENTS,
v.
GENERAL CASUALTY COMPANY OF WISCONSIN, DEFENDANT-APPELLANT



Appeal from a judgment and an order of the Circuit Court for Sauk County: James W. Karch, Judge.

Petition to Review Granted.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Dykman

General Casualty Company of Wisconsin appeals from a judgment in favor of Gerald Korkow for $30,172.50 and from the order denying its motion for a directed verdict against him. We reverse the trial court's judgment and order because we conclude that the trial court erred by allowing Gerald Korkow to be added as a plaintiff after the time for commencing an action had expired.

On April 7, 1980, George Korkow commenced an action against General Casualty on a fire insurance policy. The fire occurred November 5, 1979. On May 1, 1980, General Casualty answered denying liability and asserting that George Korkow did not possess an insurable interest in the property.

On December 10, 1980, George moved to amend his complaint to add Gerald as an additional plaintiff. The court granted the motion on February 9, 1981. General Casualty answered denying that insurance proceeds were owed because Gerald failed to commence suit within twelve months after the loss, as required by the policy and sec. 631.83(1) (a), Stats. *fn1 The answer also asserted affirmative defenses of lack of insurable interest, arson and misrepresentation in the policy application.

A jury found for Gerald and George on the issue of arson and for General Casualty on the issue of breach of good faith obligation. General Casualty moved to dismiss George's claim because he did not establish an insurable interest in the property and to dismiss Gerald's claims because he did not commence this action within the limitations period.

The court granted the motion to dismiss George's claim. That part of the order is not appealed. The court denied the motion to dismiss Gerald's action on the policy. It held that sec. 803.01(1), Stats., permitted amendment of the original complaint to add Gerald as the real party in interest even after the statute of limitations had run. *fn2 The court rejected the contention that the relation back should be based on sec. 802.09(3), Stats. *fn3

Gerald was added as an additional plaintiff after the limitations period had run on his right to bring suit against General Casualty for the fire insurance proceeds. George's action was timely brought. The question is whether under these circumstances George's complaint could be amended to add Gerald as a plaintiff.

Section 803.01(1), Stats., was enacted by supreme court order in 67 Wis. 2d 638-39, effective January 1, 1976, under its rule-making authority contained in sec. 751.12, Stats. That section states in pertinent part:

The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge or modify the substantive rights of any litigant. [Emphasis supplied.]

General Casualty argues that the trial court's application of sec. 803.01(1), Stats., to add Gerald as an additional plaintiff abridged its substantive rights.

"Under Wisconsin law the expiration of the limitations period extinguishes the cause of action of the potential plaintiff and it also creates a right enjoyed by the would-be defendant to insist on that statutory bar. The passage of time itself destroys the right and remedy of the injured party." In Matter of Estate of Fessler, 100 Wis. 2d 437, 448, 302 N.W.2d 414, 420 (1981) (citation omitted). The defendant's right to insist on the statutory bar is constitutionally protected under the due process clause of the fourteenth amendment to the United States Constitution and art. I, sec. 1 of the Wisconsin Constitution. Haase v. Sawicki, 20 Wis. 2d 308, 312, 121 N.W.2d 876, 878 (1963).

Section 803.01(1), Stats., as applied, enlarged the statute of limitations period. Gerald was added as an additional plaintiff after the statute of limitations ran. This application adversely affected General Casualty's substantive rights to insist on the statutory bar. The trial court therefore erred by allowing ...


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