Cheryl M. SORENSON, Plaintiff-Respondent-Petitioner, v. Richard A. BATCHELDER, Defendant-Appellant, UNITED HEALTHCARE INSURANCE COMPANY, Defendant.
No. 2014AP1213
Supreme Court of Wisconsin
Oral argument January 20, 2016. Decided May 12, 2016.
2016 WI 34 | 885 N.W.2d 362
For the defendant-appellant, the cause was argued by Jennifer L. Vandermeuse, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
¶ 1. PATIENCE DRAKE ROGGENSACK, C.J. We review an unpublished decision of the court of appeals,1 which reversed an order of the Milwaukee County Circuit Court2 denying defendant Richard A. Batchelder‘s (Batchelder) motion to dismiss for improper service of notice of claim.
¶ 2. After sustaining property damage and personal injury in a car accident occasioned by State employee Batchelder, Cheryl M. Sorenson (Sorenson) delivered notice of claim to the attorney general by personal service and subsequently instituted a negligence action against Batchelder. Batchelder moved to dismiss, arguing that Sorenson did not strictly comply with
¶ 3. The central issue before us is whether Sorenson‘s personal service of notice of claim satisfies
I. BACKGROUND
¶ 4. On October 28, 2010, Batchelder was operating a motor vehicle in his capacity as an employee of the Wisconsin Department of Administration (DOA).4 Batchelder‘s vehicle rear-ended the vehicle of a third party, causing that vehicle to rear-end Sorenson‘s vehicle. Sorenson alleges property damage, as well as personal injury, resulting from the accident.
¶ 5. On January 18, 2011, Sorenson served notice of claim on the attorney general by personal service at the attorney general‘s office in the capitol in Madison, Wisconsin. Personal service was accepted by a state employee, who acknowledged its receipt at the time of delivery. The notice of claim was then forwarded to the attorney general‘s Main Street office in Madison where it was processed and endorsed by another state employee on January 19, 2011; thereafter, it was returned to Sorenson‘s attorney‘s office. ¶ 6. On February 28, 2011, after investigating Sorenson‘s claim, the Bureau of State Risk Management issued a check to Sorenson in the amount of $241.45 as payment in full for the damage sustained by her vehicle as a result of the accident.5 The Bureau of State Risk Management also issued a letter to Sorenson, stating that “[t]his payment does not represent an admission of any liability on the part of the state, or any of its employees or agents, and is not a waiver of any defenses the state, or any of its employees or agents, may have.”6
¶ 7. On May 28, 2013, Sorenson instituted a negligence action against Batchelder,7 who filed a motion to dismiss due to improper service of notice of claim. Specifically, Batchelder argued that Sorenson did not satisfy
¶ 8. The court of appeals reversed, concluding that the plain meaning of
¶ 9. We granted Sorenson‘s petition for review.
II. DISCUSSION
A. Standard of Review
¶ 10. Batchelder‘s motion to dismiss requires us to interpret and apply
B. General Principles of Statutory Interpretation
¶ 11. “[S]tatutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.‘” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O‘Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659). Plain meaning may be ascertained not only from the words employed in the statute, but also from the context.8 Id., ¶ 46. We interpret statutory
language in the context in which those words are used; “not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id. Statutory history aids in a plain meaning analysis. Adams v. Northland Equip. Co., 2014 WI 79, ¶ 30, 356 Wis. 2d 529, 850 N.W.2d 272.
¶ 12. “If the words chosen for the statute exhibit a ‘plain, clear statutory meaning,’ without ambiguity, the statute is applied according to the plain meaning of the statutory terms.” State v. Grunke, 2008 WI 82, ¶ 22, 311 Wis. 2d 439, 752 N.W.2d 769 (quoting Kalal, 271 Wis. 2d 633, ¶ 46). However, where the statute is “capable of being understood by reasonably well-informed persons in two or more senses[,]” then the statute is ambiguous. Kalal, 271 Wis. 2d 633, ¶ 47. Where the language is ambiguous, we may then consult extrinsic sources, such as legislative history. Id., ¶ 50. “While extrinsic sources are usually not consulted if the statutory language bears a plain meaning, we nevertheless may consult extrinsic sources ‘to confirm or verify a plain-meaning interpretation.‘” Grunke, 311 Wis. 2d 439, ¶ 22 (quoting Kalal, 271 Wis. 2d 633, ¶ 51).
¶ 13. Ultimately, we bear in mind that “[s]tatutory interpretation involves the ascertainment of meaning, not a search for ambiguity.” Kalal, 271 Wis. 2d 633, ¶ 47 (internal quotation marks omitted) (quoting Bruno v. Milwaukee Cnty., 2003 WI 28, ¶ 25, 260 Wis. 2d 633, 660 N.W.2d 656). With these general principles in mind, we turn to our review of
C. Wis. Stat. § 893.82
¶ 14.
¶ 15. With regard to notice,
[N]o civil action or civil proceeding may be brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer‘s, employee‘s or agent‘s duties . . . unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim . . . .
¶ 16. With regard to service of notice of claim,
¶ 17. Finally,
- Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
- Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.
- Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.
¶ 18. Having set forth the text of the statutory provisions at issue, we now turn to the parties’ arguments with respect to
D. Parties’ Positions
¶ 19. The parties do not dispute that the plain language of
¶ 20. The dispute between the parties arises out of their disagreement about what constitutes strict compliance with the certified mail requirement. Batchelder argues that strict compliance with
¶ 21. Sorenson argues that, although the words of the statute direct strict compliance, literal compliance with the words of the statute is not required. Rather, according to Sorenson, her delivery of the notice of claim to the attorney general by personal service fulfilled the purpose of
E. Interpretation and Application of Wis. Stat. § 893.82
1. Literal compliance
¶ 22. As set forth above, the plain language of
¶ 23. Moreover, Wisconsin courts have equated strict compliance with literal adherence to the words used in the statute. Force v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶ 14, 356 Wis. 2d 582, 850 N.W.2d 866 (comparing a “strict literal interpretation” with statutory interpretation that furthers legislative purposes); Kalal, 271 Wis. 2d 633, ¶ 56 (equating “strict” with “literal” statutory interpretation); Bar Code Res. v. Ameritech Info. Sys., Inc., 229 Wis. 2d 287, 291, 294, 599 N.W.2d 872 (Ct. App. 1999) (explaining that Wisconsin service statutes are “literally read and strictly applied“); see also Barbara J. Van Arsdale, Certificate of Acknowledgement, 1 Am. Jur. 2d Acknowledgments § 29 (database updated Feb. 2016) (equating strict compliance with literal compliance and distinguishing substantial compliance).
¶ 24. Therefore, we enforce literal compliance with the plain language of
2. Fulfilling statutory purposes (substantial compliance)
¶ 25. Sorenson next contends that, without serving notice of claim by certified mail, she strictly complied with the statute because she fulfilled its stated purposes, and the attorney general received actual notice of her claim. Sorenson contends that she met the purposes set forth in
¶ 26. Sorenson emphasizes that, through personal service, notice of claim was processed
¶ 27. Sorenson appears to argue that she strictly complied with
¶ 28. While we do not dispute that the attorney general received actual notice through Sorenson‘s personal service, it is well established that
¶ 29. To aid in our plain meaning analysis, we briefly examine statutory history. A prior version of
¶ 30. However,
¶ 31. Moreover, we note that strict adherence to the certified mail requirement promotes a “simple, orderly, and uniform way of conducting legal business.” Kellner, 197 Wis. 2d at 195 (citing Kelly, 168 Wis. 2d at 747). Furthermore, if we were to allow substantial compliance rather than enforcing strict compliance as
mandated by
¶ 32. Although the attorney general received actual notice here, such a determination may not be so easily made in the next case. Condoning a deviation from the certified mail requirement could therefore encourage “[a] new level of litigation [to] be added to suits against state employees.” Id. In light of this reality,
3. Stricter compliance
¶ 33. Sorenson also argues that she satisfied the strict compliance requirement of
¶ 34. In Patterson, the court of appeals examined an entirely different statutory scheme,
¶ 35. A federal court extended the Patterson decision to hold that personal service constitutes “stricter compliance” with the requirements of
¶ 36. In addition to the stated purposes under
tents are legal in nature and require immediate attention.‘” Hines, 338 Wis. 2d 190, ¶ 26 (second alteration in original) (quoting Kelly, 168 Wis. 2d at 748).
¶ 37. Of course, Sorenson‘s chosen method of service did not permit use of the procedure for receiving notices of claim developed by the attorney general because the notice of claim did not arrive by mail at all. See id., ¶ 9 (explaining attorney general‘s procedure for receiving notices of claim by certified mail at Post Office Box, which are then forwarded to the Main Street office). Rather, Sorenson‘s notice of claim arrived at the capitol office by personal service and had to be forwarded to the Main Street office. Therefore, unlike the situation in Patterson, personal service on the attorney general is not identical to service by certified mail to the attorney general and did not fulfill the foregoing objective of the statute. Moreover, unlike registered mail, personal service is not simply a “stricter form of certified mail” because it is an entirely different mode of service. Patterson, 103 Wis. 2d at 360.
¶ 38. Furthermore, holding that personal service constitutes “stricter compliance” than service by certified mail would require us to override the statute‘s plain language when the legislature has so clearly chosen the mode of service necessary to satisfy
¶ 39. Furthermore, where the legislature decides personal service is sufficient, the legislature is clearly capable of enacting a statute to reflect that choice. State v. Hemp, 2014 WI 129, ¶ 31, 359 Wis. 2d 320, 856 N.W.2d 811 (explaining that we do not read language into the statute that the legislature omitted). Consequently, we decline to override the plain meaning of the statute and the choice of the legislature by declaring that personal service is more effective than service by certified mail. Braverman v. Columbia Hosp., Inc., 2001 WI App 106, ¶ 24, 244 Wis. 2d 98, 629 N.W.2d 66 (“[O]ur role is not to justify the legislative action or to substitute our judgment for that of the legislature.“). Accordingly, we conclude that Sorenson‘s personal service does not constitute service pursuant to the plain meaning of
4. Absurd result
¶ 40. Finally, Sorenson argues that dismissing her otherwise viable claim would constitute an absurd result since she fulfilled the purposes of
¶ 41. However, we recognize that “[o]ne of the few exceptions to this sound principle is that [we] will seek to avoid a truly absurd or unreasonable result.” State v. Hamilton, 2003 WI 50, ¶ 39, 261 Wis. 2d 458, 661 N.W.2d 832. We previously have recognized that an absurd result may arise where “an interpretation would render the relevant statute contextually inconsistent or would be contrary to the clearly stated purpose of the statute.” Grunke, 311 Wis. 2d 439, ¶ 31 (footnotes omitted).
¶ 42. Requiring notice of claim to be served by certified mail as plainly stated in
¶ 43. Simply because another mode of service seemingly would fulfill these stated purposes does not give rise to an absurd result. The legislature specifically chose the acceptable mode of service,
¶ 44. Sorenson easily could have served notice of claim on the attorney general by certified mail. See Hines, 338 Wis. 2d 190, ¶ 16 (holding that enforcing strict compliance where strict compliance is impossible would lead to an absurd result). Accordingly, we must enforce the statute as written, which dictates the dismissal of Sorenson‘s claim. Hamilton, 261 Wis. 2d 458, ¶ 45 (“We exceed our authority when we ignore the clear language of a statute and attempt to surgically reconstruct the statute to accommodate alternative public policies.“).
¶ 45. Although the result in this case is harsh, and we are sympathetic to Sorenson‘s unfortunate situation, her remedy simply does not lie with us. See Mannino v. Davenport, 99 Wis. 2d 602, 615, 299 N.W.2d 823 (1981) (enforcing strict compliance because we are not free to ignore the import of a statute‘s plain meaning even where we do not “enthusiastically endorse the result” that enforcement causes); see also Hallstrom, 493 U.S. at 21 (acknowledging harsh result, but refusing to excuse failure to strictly comply with federal statutory service requirements on unfairness grounds because lawsuits are conducted by trained lawyers). Rather, Sorenson‘s remedy lies with the legislature. See Hamilton, 261 Wis. 2d 458, ¶ 49 (calling on legislature
III. CONCLUSION
¶ 46. In light of the foregoing, we conclude that delivering notice by personal service does not comply with the plain language of
By the Court.—The decision of the court of appeals is affirmed.
¶ 47. SHIRLEY S. ABRAHAMSON, J. (dissenting).
¶ 48. No one can literally (or “strictly,” see
¶ 49. The majority does not, however, adjust its reading of the statute to allow notice of a claim to be delivered by a person in a sheriff‘s uniform or other process server‘s uniform rather than by a person in a United States postal uniform. The majority opinion implicitly concludes that the uniform of the person delivering a notice of claim is key to whether the notice was validly served. If a notice of claim is not sent by certified mail, and thus delivered by someone in a U.S. postal uniform, the majority opinion concludes the notice was improperly served, and the claimant‘s case should be dismissed.
¶ 50. The record demonstrates that Sorenson‘s notice of claim, although served by a process server, was processed at the attorney general‘s office by the same individuals in the same manner as notices of claim served by certified mail.
¶ 51. I agree with the concerns of Judge Posner, who recently decried dismissal of a litigant‘s viable claim based on counsel‘s harmless procedural gaffe. The concerns he expressed are pragmatic, but rest on the principles of fairness and justice upon which our legal system is based. These concerns should guide the court in the present case. Judge Posner wrote:
I find myself increasingly uncomfortable with basing dismissals with prejudice on harmless procedural bobbles. The only argument in favor of such summary justice that I can imagine is that by punishing parties for their lawyers’ mistake we
improve the quality of the bar; the lawyers who disserve their clients attract fewer new clients and eventually perhaps are forced to leave the practice—an example of the positive effect of competition on the quality of goods and service that a market provides. But while this is plausible in theory, I have to say that in more than 33 years as a federal court of appeals judge I have not noted any improvement in the average quality of the lawyers who appear before us. I find it difficult to believe that punishing [the plaintiff] and his lawyer by in effect a “fine” of $925,000 will promote the quality of legal representation in the courts of this circuit.4
¶ 52. I disagree with the majority‘s conclusion that personal service in the instant case does not comply with the statutory service requirement and that only service by certified U.S. mail counts.
¶ 53. I write separately to make two points:
- A court scrutinizes the text of a statute in view of the purposes of the statute. “Words are given meaning to avoid absurd, unreasonable, or implausible results and results that are clearly at odds with the legislature‘s purpose.” Force ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶ 30, 356 Wis. 2d 582, 850 N.W.2d 866. Personal service fulfills the express purposes of the notice of claim requirement.
- Personal service is a stricter form of service than certified mail, and “stricter compliance than the statute demands is not necessarily a failure to strictly comply.” See Patterson v. Bd. of Regents, 103 Wis. 2d 358, 361, 309 N.W.2d 3 (Ct. App. 1981); Weis v. Bd. of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis. 2011).
¶ 54. Because, in my opinion, personal service fulfills the purposes of
¶ 55. As a result, I dissent and write separately.
I
¶ 56. I begin with the text of
- The purposes of this section are to:
- Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
- Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding. . . .
(2m) No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.
(3) Except as provided in sub. (5m), no civil action or civil proceeding may be
brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer‘s, employee‘s or agent‘s duties, . . . unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved. . . . . . . . (5) The notice under sub. (3) shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol by certified mail. Notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.
¶ 57. As
¶ 58. In
¶ 59. The court of appeals has articulated a twofold purpose for requiring service on the attorney general by certified mail: (1) to “allow[] the attorney general‘s office to easily identify mail whose contents are legal in nature and require immediate attention“; and (2) to ensure that delivery of the notice of claim can be verified. See Kelly v. Reyes, 168 Wis. 2d 743, 747-48, 484 N.W.2d 388 (Ct. App. 1992); Patterson v. Bd. of Regents, 103 Wis. 2d 358, 360, 309 N.W.2d 3 (Ct. App. 1981).
¶ 60. Personal service (by a process server) of a notice of claim serves both the express statutory purposes for notice of claim contained in
¶ 61. A personally served notice of claim, like a notice of claim served by certified mail, informs the attorney general of claims against the state and gives him or her an opportunity to reach a settlement prior to litigation. Moreover, personal service (by a process server) of a notice of claim, even more than service by a U.S. postal worker by certified mail, clearly identifies the notice as legal in nature and provides an easily verifiable means of confirming that the notice was actually served and when it was served.
¶ 62. In sum, there is no reason “why signing a receipt for an envelope delivered by a U.S. Postal employee is different from signing an acknowledgement of receipt on a copy of a notice of claim delivered by a deputy sheriff or other process server.” Weis v. Bd. of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis. 2011)
¶ 63. The dismissal of an otherwise viable claim should not depend on whether notice of that claim was delivered by someone in a sheriff‘s uniform rather than a U.S. postal uniform. To hold otherwise, as the majority opinion does, is to elevate form over substance and countenance an absurd result—dismissal of a viable claim based on a harmless procedural gaffe. See Hamilton v. Hamilton, 2003 WI 50, ¶ 39, 261 Wis. 2d 458, 661 N.W.2d 832 (“[A] court will seek to avoid a truly absurd or unreasonable result.“) (citations omitted).
II
¶ 64. The absurdity of dismissing Sorenson‘s otherwise viable claims based on personal service of the notice of claim by a process server rather than service by a U.S. postal worker by certified mail is underscored by the fact that personal service is, in fact, a stricter form of service than certified mail.
¶ 65. In dismissing Sorenson‘s otherwise viable claims, the majority opinion relies on the requirement in
¶ 66. In an analogous context—the statute required service by registered mail and service was by certified mail—the court of appeals noted that “[a]lthough we agree that strict compliance . . . is required . . . we conclude that a stricter compliance than the statute demands [here, by certified mail] is not necessarily a failure to strictly comply. Such a reading would lead to an absurd and unjust result, and we reject such a construction.” Patterson, 103 Wis. 2d at 360-61.
¶ 67. Relying on Patterson‘s observation that stricter compliance is not necessarily a failure to strictly comply, the federal district court in Weis v. Board of Regents, 837 F. Supp. 2d 971 (E.D. Wis. 2011), rejected the same argument the State makes in the instant case.
¶ 68. In Weis, the plaintiffs personally served notice of claim on the attorney general. Weis, 837 F. Supp. 2d at 979. The defendants in Weis argued that because notice of claim was not served by certified mail, the plaintiffs’ claims should be dismissed. Weis, 837 F. Supp. 2d at 979.
¶ 69. Noting that the plaintiffs’ notice of claim was received and acknowledged by the attorney general, the Weis court concluded there was no meaningful difference between service by certified mail and service by process server. Weis, 837 F. Supp. 2d at 979. As a result, the federal district court held that the plaintiffs strictly complied with
¶ 70. The reasoning in Patterson and Weis is, in my opinion, more persuasive than that of the majority opinion. Service of process by a sheriff or process server is reliable, verifiable, and almost universally accepted. “Certainly, the gold standard of notice is service of process by the sheriff or other process server . . . .” Schlereth v. Hardy, 280 S.W.3d 47, 52 n.4 (Mo. 2009) (en banc). For this reason,
¶ 71. If service of a notice of claim by certified mail strictly complies with
¶ 72. In sum, because personal service fulfills the purposes of
¶ 73. For the reasons set forth, I dissent and write separately.
¶ 74. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.