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06/01/83 JENNIE JO NIELSEN v. TOWN SILVER CLIFF AND

June 1, 1983

JENNIE JO NIELSEN, BY JAMES A. JOHNSON, HER GUARDIAN AD LITEM, RANDALL NIELSEN AND JOYCE NIELSEN, PLAINTIFFS-RESPONDENTS-PETITIONERS,
v.
TOWN OF SILVER CLIFF AND TOWER INSURANCE COMPANY, INC., DEFENDANTS-APPELLANTS



Review of a decision of the Court of Appeals. Reversing William G. Callow, J.

The opinion of the court was delivered by: Callow

This is a review of an unpublished decision of the court of appeals which reversed a portion of the judgment entered by the Marinette county circuit court, Judge William M. Donovan.

On September 3, 1977, Jennie Jo Nielsen, a minor child, was playing with some friends on property owned by the Town of Silver Cliff (Town) when a large stone monument fell over, landing on her leg. Jennie Jo's parents, Randall and Joyce Nielsen, quickly went to her aid. Randall lifted the monument so that Joyce could pull Jennie Jo free. As a result of the accident, Jennie Jo suffered trauma to her right leg. Subsequently, Randall began to experience back problems.

Shortly after the incident, the Nielsens obtained legal counsel. In a letter dated September 26, 1977, their lawyer notified the Town of Jennie Jo's injuries. The letter made no mention, however, of any injuries suffered by Randall or Joyce. On May 19, 1978, Randall's attorney sent a letter to inform the Town's liability insurer, Tower Insurance Company, Inc. (Tower), that Randall had injured his back while lifting the monument. The attorney enclosed a medical examination report in which the examining physician attributed Randall's injury to the lifting episode. On August 7, 1978, Randall and Joyce submitted a claim for damages which notified the Silver Cliff town clerk of their injuries. On March 12, 1979, the Nielsens filed a complaint seeking to recover for the injuries suffered by Jennie Jo and Randall and the loss of their society and companionship.

On April 8, 1980, the Nielsens moved for a partial summary judgment establishing that Tower's liability was not limited to $25,000 by sec. 895.43, Stats., 1975 (hereinafter all references will be to 1975 statutes). The Nielsens argued that the insurance policy Tower sold to the Town contained a clause which expressly waived the $25,000 statutory damage limit. That clause, entitled "Waiver of Immunity," reads:

"It is hereby understood and agreed that the Company shall not use as a defense or limit to damage the provisions of Wisconsin Statute #895.43.

"Each and every waiver of defense as aforesaid shall be deemed to have been made upon the express request of the assured and the Company shall not, by reason of said waiver and any verdict against the assured resulting, be held to have subjected itself in any way to any liability for any portion of such verdict, which may be in excess of the limit of the liability expressed in the policy; provided that the Company shall not waive any such defense if it shall have received from the assured a timely request in writing that such or any such defense be not waived."

The trial court granted the motion, ruling that the "Waiver of Immunity" clause extended Tower's liability to the coverage limit of the policy ($300,000).

Immediately prior to trial, the parties raised the question of whether the Town or Tower had received timely notice of Randall's injuries within sec. 895.43(1), Stats. The Town argued that Randall's claim was barred for failure to satisfy the statutory notice requirements. Randall countered that the notice defense was waived by the " Waiver of Immunity" clause in the insurance policy. After a lengthy Discussion, the trial court elected to delay a final decision on the matter. The trial was conducted before a twelve-member jury. On March 19, 1981, the jury returned a special verdict, finding the Town 100 percent negligent. The jury awarded damages of $30,000 (plus $1,849.18 in medical expenses determined by the court) to Jennie Jo and $46,298.90 to Randall for their injuries. In addition, Joyce was awarded $500 for the loss of Randall's society and companionship.

On May 7, 1981, the Town and Tower moved for judgment notwithstanding the verdict with respect to Randall's claim on the ground that he did not give them timely notice of his injuries as required by sec. 895.43, Stats. *fn1 The Nielsens in turn moved for judgment on the verdict. The trial court ruled that the "Waiver of Immunity" clause in the insurance policy waived not only the statutory damage limit but also the defense of failure to give notice as required by sec. 895.43. The trial court further held that, even if the notice defense could have been raised, it would not have been valid. The evidence established that the Town and Tower had actual notice of Randall's injury and were not prejudiced by his failure to give timely written notice. Thus the sec. 895.43 notice requirement was satisfied. The court ordered judgment entered on the verdict.

The Town and Tower appealed from the whole judgment. On January 5, 1982, Jennie Jo, by her guardian ad litem, moved for summary Disposition of that portion of the appeal relating to her damage award. In response, the Town and Tower agreed to voluntarily dismiss the appeal of that issue. The court of appeals granted the voluntary dismissal, limiting the appeal to that portion of the judgment awarding damages to Randall and Joyce. *fn2

The Town and Tower raised for the first time on appeal the contention that Joyce did not give them timely notice of her loss. The court of appeals reversed the trial court's decision to award damages to Randall and Joyce, holding that their claims were barred for failure to satisfy the notice requirements of sec. 895.43, Stats. In reaching this Conclusion, the court of appeals made the following determinations: First, the "Waiver of Immunity" clause in the insurance policy waived only the $25,000 damage limit under sec. 895.43, not the defense of failure to give notice. Second, under the statute, actual notice -- like written notice -- must be given within 120 days of the event causing the injury. Third, the trial court's finding that the Town had timely actual notice of Randall's injury was contrary to the great weight and clear preponderance of the evidence. Finally, Joyce's claim is a separate, albeit derivative, cause of action, and there is no evidence that she complied with the notice requirements of sec. 895.43. We granted the Nielsen's petition for review.

Prior to 1961 local units of government were generally immune from tort liability. In Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), this court abrogated the doctrine of municipal immunity. Shortly after the Holytz decision, the legislature enacted Chapter 198, Laws of 1963, which created sec. 331.43, Stats. This statute established liability limitations and notice requirements for tort actions against local units of government. Sec. 331.43 was subsequently renumbered to sec. 895.43, *fn3 which, at the time this action arose, provided in pertinent part:

"Tort actions against political corporations, governmental subdivisions or agencies and officers, agents or employes; notice of injury; limitation of damages and suits. (1) No action founded on tort, except as provided in s. 345.05, shall be maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe of such corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment unless within 120 days after the happening of the event causing the injury or damage or death complained of, written notice of the time, place and circumstances of the injury or damage signed by the party, agent or attorney is served on such volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 801.11. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the ...


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