JOYCE S. CLARK v. LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE
Case Nos. 2019AP954, 2019AP1489
COURT OF APPEALS OF WISCONSIN
March 31, 2021
2021 WI App 21
Neubauer, C.J., Gundrum and Davis, JJ.
PUBLISHED OPINION
No. 2019AP954
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
No. 2019AP1489
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
Opinion Filed: March 31, 2021
Submitted on Briefs: July 16, 2020
JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Appellant ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael J. Kuborn of Apex Accident Attorneys, LLC, of Oshkosh.
Respondent ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the brief of Ashley C. Lehocky of Town Counsel Law & Litigation, LLC, of Appleton.
COURT OF APPEALS DECISION DATED AND FILED March 31, 2021
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
Appeal Nos. 2019AP954, 2019AP1489
STATE OF WISCONSIN IN COURT OF APPEALS
Cir. Ct. No. 2018CV848
No. 2019AP954
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
No. 2019AP1489
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
APPEALS from orders of the circuit court for Winnebago County: DANIEL J. BISSETT, Judge. Reversed and cause remanded with directions.
Before Neubauer, C.J., Gundrum and Davis, JJ.
¶2 The trial court granted the City‘s motion for summary judgment on the grounds that Clark had met neither the written notice requirement nor the statutory prerequisite for excusing noncompliance—lack of prejudice to the City. We agree with the former finding but not the latter, at least for summary judgment
purposes. Although Clark did not provide formal written notice, she sufficiently raised an issue of fact as to whether the City was thereby prejudiced. We consequently remand for further proceedings on that issue.
BACKGROUND
¶3 Clark was a sewing instructor with Fox Valley Technical College (the College).2 As part of her job, she taught classes at the City-owned Oshkosh Senior Center (the Senior Center). On October 17, 2015, Clark unlocked and walked through one of the entrance doors to the Senior Center. The door closed faster than usual behind her, knocking her off balance and causing her to fall. Two of Clark‘s students helped her to her feet.
¶4 Later that day, Clark told her supervisor that she had been injured at work. The supervisor, on Clark‘s behalf, filled out an online “Employer‘s First Report of Injury or Disease” (the Injury Form); this is a standard Wisconsin Department of Workforce Development workers’ compensation form that is used to report work-related injuries to the employer‘s insurer. On the Injury Form, the supervisor (mistakenly) listed Clark‘s employer as “City of Oshkosh” and not the College. The Injury Form described the incident and injury as follows:
Injury Description—Describe Activities of Employee When Injury or Illness Occurred and What Tools, Machinery, Objects, Chemicals, Etc. Were Involved.
I was attempting to enter building thru electric controlled door which was turned off
What Happened to Cause This Injury o[r] Illness? (Describe How The Injury Occurred)
Door closed unexpectedly and hit employee, she lost balance and hit glass wall face first.
What Was the Injury or Illness? (State the Part of Body Affected and How It Was Affected)
employe[e] has bruised cheek and left hip
Checked boxes on the Injury Form also indicated that Clark returned to work on October 21, that hers was not a “Lost Time or Other Compensable Injury,” and that she was not not treated in an emergency room. Clark reviewed and approved the Injury Form and provided it to the supervisor,
¶5 Paul Greeninger, a City safety and risk management officer, received the Injury Form. He could not verify that Clark was a City employee, so he asked Mark Ziemer, the City senior services manager, about the matter. Ziemer oversaw Senior Center operations and was familiar with Clark; he explained that Clark was a College and not a City employee. Greeninger informed Clark of her mistake, and sometime thereafter, Clark properly filed a new workers’ compensation form.
¶6 Greeninger, now aware of Clark‘s fall, investigated. Within the week, he examined the door and spoke with “individuals over at the Senior Center,” including “the facilities person.” Greeninger learned that employees had been switching off the door‘s “disabled person capability” button at night to preserve the motor. That button, when pushed, normally allowed the door to slowly open and close on its own. Because this functionality was turned off on the day of Clark‘s accident, however, the door swung back at Clark faster than she expected and hit her. Once Greeninger concluded that the door “was still operable,” he ended his investigation. Greeninger thus summarized the extent and purpose of his inquiry as follows:
Initially it came that, as I recall, the door was broken and I wanted to know, if it is broken, we need to fix it. We found
out it was not broken. So as far as I was concerned, there was nothing that needed to be fixed. There wasn‘t—in my job, was there uneven surface, was there liquids, did they trip, did they fall, all those things? None of that was there, so as far as I was concerned, as a safety person, there was nothing that needed to be fixed. So at that point my investigation was done.
¶7 At some point over the two and one-half years between the date of her fall and April 2018, Clark began suffering severe aftereffects. The fall “significantly exacerbated” a “previously slight, asymptomatic, pre-existing, arthritic condition ... leading to a hip replacement and in that process an infection ... which damaged [her] kidneys.” On April 12, 2018, Clark filed a notice of claim form with the City. See
¶8 In October 2018, Clark brought suit. The City moved for summary judgment, arguing that Clark had not complied with the notice of injury requirement of
of
¶9 Where a claimant fails to give formal notice, the action is not barred if the claimant substantially complies with
¶10 Clark moved for reconsideration and relief from judgment, which the trial court denied. Additional facts will be noted where relevant.
DISCUSSION
Legal Principles
¶11 In most respects, this is a garden-variety personal injury claim, no different than a slip-and-fall suit alleging negligence against a property owner, and the sort of claim that is a mainstay of our civil dockets. In one crucial respect, however, this case is different: because Clark‘s injury occurred on City-owned property, Clark‘s negligence claim lies against the City. That fact brings into play the statutory requirement that Clark give two separate types of notice before she can file suit on her claim. See
¶12 The first notice, under
of this notice is to enable governmental entities to promptly investigate and evaluate the underlying circumstances that may later give rise to a claim. Id.; Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206 (Ct. App. 1982).
¶13 The first sentence of
¶14 To mitigate the potential harshness that might ensue from the strict application of this requirement, the statute contains a “savings clause.” See Van v. Town of Manitowoc Rapids, 150 Wis. 2d 929, 933, 442 N.W.2d 557 (Ct. App. 1989). The second sentence of
Wis. 2d 554, ¶88. In at least one respect, the actual notice requirement may be more difficult to meet than formal notice: actual notice must be “of the claim,” rather than of the mere “circumstances” that may later give rise to a claim. (Emphasis added.) We will discuss this point further below. On the other hand, actual notice is not limited to a particular timeframe and may occur outside the 120 days following the injury-causing event. Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 580-81, 334 N.W.2d 242 (1983).
¶15 The second required notice is “[a] claim containing the address of the claimant and an itemized statement of the relief sought ... presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant.”
¶16 This appeal concerns Clark‘s compliance with
E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, ¶17, 335 Wis. 2d 720, 800 N.W.2d 421; Moran v. Milwaukee County, 2005 WI App 30, ¶5, 278 Wis. 2d 747, 693 N.W.2d 121. Summary judgment shall be granted where the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Application of Legal Principles to This Case
¶17 There is no dispute that Clark provided the second required notice under
¶18 It is equally undisputed that Clark did not provide the first required notice, the formal notice of injury under
did not, within 120 days of her accident, serve on the City a signed notice describing the circumstances of her claim. Instead, she mistakenly sent the City the Injury Form—the online workers’ compensation form describing her fall and injuries. Although this form was submitted within the proper timeframe, it was neither signed by Clark nor served in compliance with
¶19 This case, then, boils down to whether: (1) the City had “actual notice of the claim,” and (2) Clark showed that the City was not prejudiced by her failure to satisfy the statutory requirements of formal notice. More specifically, the question is whether factual disputes on these issues precluded summary judgment in the City‘s
The City had “actual notice of the claim” by virtue of Clark‘s April 12, 2018 notice of claim form
¶20 As we have already discussed, under
claim.” See Elkhorn Area Sch. Dist., 110 Wis. 2d at 5. By its very nature (timing, signature, and service) formal notice conveys to the defendant that the injured party is at least contemplating filing suit. Actual notice, which may occur in a variety of ways, carries no such implication. Thus, to allow the defendant to meaningfully investigate “the circumstances” of a claim, actual notice should include some indication that the injured party intends to hold the defendant liable. See Markweise v. Peck Foods Corp., 205 Wis. 2d 208, 220-21, 556 N.W.2d 326 (Ct. App. 1996); Felder v. Casey, 139 Wis. 2d 614, 628-631, 408 N.W.2d 19 (1987), rev‘d on other grounds, 487 U.S. 131 (1988).
¶21 The parties spend much of their briefing on whether the City had actual notice by virtue of the Injury Form, discussions between Clark and City-employed staff at the Senior Center, or both. Given that actual notice must apprise the defendant of the injured party‘s claim, we hold that these early communications—focused as they were solely on the cause of Clark‘s injury—did not meet the actual notice requirement. But, again, under the savings clause, there is no timeframe for providing actual notice (unlike the 120-day requirement for formal notice). As our supreme court stated in Nielsen:
The statute provides that actual notice is sufficient to maintain a claim if the plaintiff shows that the governmental unit was not prejudiced. This method of preserving the claim does not need a time limit because a subjective showing of no prejudice assures that the statute‘s purpose has been satisfied regardless of when actual notice is received. This conclusion accords with the plain language of the statute which establishes no time limit for actual notice.
Nielsen, 112 Wis. 2d at 580-81 (emphasis added).
¶22 This legal point makes the question of when the City had “actual notice of the claim” largely academic at this point in the analysis. There can be no question that the City had such notice when, on April 12, 2018, it received Clark‘s
notice of claim form under
Clark raised a genuine issue of material fact on the issue of prejudice, necessitating remand for further proceedings
¶23 As our review is from summary judgment, the specific question is whether Clark raised a genuine issue of material fact as to whether she could meet her burden to show that the City was not prejudiced by the lack of formal notice. See Moran, 278 Wis. 2d 747, ¶5. Prejudice in this context has been defined as “the inability of a party to adequately defend a claim” because the party lacked sufficient opportunity to conduct a prompt investigation. Olsen v. Township of Spooner, 133 Wis. 2d 371, 379-80, 395 N.W.2d 808 (Ct. App. 1986). The trial court found that the City was prejudiced because of “the passage of time.” This was in reference to submission of the April 2018 notice of claim form, which served double-duty as both actual notice under the savings clause and notice of claim under
¶24 We would likely agree with the trial court if, in fact, the only communication the City received was a form submitted two and one-half years after the accident. But that, of course, was not when the City first learned of Clark‘s fall or injuries (such as they were at that point). Almost immediately after the accident,
the City received the Injury Form stating that Clark had fallen and sustained what she then believed to be minor injuries. As noted above, other discussions ensued shortly thereafter. Although these communications did not satisfy the statutory requirements for formal notice of injury, or even the savings clause criteria for “actual notice of the claim,” they nonetheless cannot be ignored when assessing prejudice. Upon receiving the Injury Form, Greeninger, the City safety and risk management officer, investigated the cause of the accident within the week. He determined that the door was not broken but, rather, that an electronic mechanism had been turned off. This caused the door to close more quickly than expected, hitting Clark and causing her to fall. As the extent of Clark‘s injuries was then unknown, Greeninger‘s inquiry likely encompassed most, if not all, of what the City could have investigated at that point. Of course, Greeninger, as a “safety person,” focused on whether anything “needed to be fixed,” so it is unclear if he performed as comprehensive an investigation as would have occurred with formal notice or what, if anything, a different investigation would have yielded. Such questions will be pertinent on remand, but on this record, we cannot conclude that the City was prejudiced as a matter of law.
¶25 The above analysis underscores a key point in applying the notice of injury provision. The date on which a defendant had “actual notice of the claim” may bear on prejudice—but it is certainly not dispositive. By the express terms of the statute, prejudice is from “the delay or failure to give the requisite notice.” See
differently had the plaintiff timely served a statutorily compliant written notice describing those circumstances?
¶26 It is conceivable that the answer to this “what if” question could be affected by when the defendant first learned of the actual claim. An example might be where the defendant‘s awareness of an injury was not enough to prompt an investigation sufficient to protect the defendant‘s interests—where, in other words, only the defendant‘s knowledge of a potential lawsuit could have prompted such an investigation. But whether that is true in any given case should be assessed as part of the overall factual inquiry into prejudice.
¶27 Here it is undisputed that the City, by way of the Injury Form, almost immediately learned of the underlying circumstances giving rise to Clark‘s claim, long before it had actual notice of the claim itself. There is evidence to suggest that this knowledge enabled the City to perform (and that it did perform) the very type of investigation that formal notice of injury was designed to afford. Thus, the City may have had “a sufficient opportunity to investigate all incidents giving rise to tort claims” and to “guard against specious claims.” See Nielsen, 112 Wis. 2d at 580. Although the burden remains on Clark, on remand, to show a lack of prejudice, the
evidence is sufficient to at least raise a genuine issue of material fact on that issue, precluding summary judgment in favor of the City.9
¶28 We therefore remand for further proceedings so that the necessary findings and conclusions on prejudice, or lack thereof, can be made to the trial court‘s satisfaction. See
Notes
[N]o action may be brought or maintained against any volunteer fire company organized under [WIS. STAT.] ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employee of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employee under [WIS. STAT. §] 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 claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employee; and
(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant fire company, corporation, subdivision or agency and the claim is disallowed.