Sept. 12, 2023 – The applicable statute of limitations bars a claim for negligent road maintenance that a bicyclist filed against the Town of Cedarburg, the Wisconsin Court of Appeals has ruled.
In Kornreich v. Town of Cedarburg, No. 2022AP198 (Aug. 16, 2023), a three-judge panel for the Court of Appeals District II ruled that the plaintiff should not have relied on an insurance claims manager’s statement that the plaintiff should disregard a notice of disallowance from the town.
Under Wis. Stat. section 893.80(1g), a plaintiff must bring a claim within six months from the date of service of a notice of disallowance.
The appeals court found that the plaintiff did not meet the deadline to file his claim under that statute, despite his argument he had good reason for not filing the
Bike Crash; Notice of Claim
On Aug. 7, 2020 Dr. David Kornreich broke his collarbone in a bicycle crash in the Town of Cedarburg (Town).
Kornreich concluded that the crash was caused by the town’s negligence in maintaining the road.
On August 19, Kornreich served a notice of claim on the town under Wis. Stat. section 893.80(1d)(b).
Letter from Insurer
On Aug. 27, Kornreich’s attorney, Phillip Georges, received a letter from Ryan Anderson, a claims representative from Aegis Corporation (Aegis).
In the letter, Anderson told Georges that Community Insurance Corporation (CIC) was the Town’s insurer and Aegis was CIC’s general administrator.
Anderson also said that CIC had received Kornreich’s notice of claim and asked Georges to copy him on all correspondence in the future.
Town Denies Claim
On Oct. 7, 2020, the town board voted to deny Kornreich’s claim.
The Town sent Georges a notice of disallowance under section 893.80(1g) on Oct. 13. The notice stated that Kornreich must bring any legal action on his claim within six months of the date of service of the notice, according to the statute.
On Oct. 21, Georges emailed Brian Knee, a claims manager with Aegis. Receipt of the notice surprised him, Georges wrote; he also wrote that “there is no way [the town board] even spoke with you yet about this.”
He also told Knee that he could either file a lawsuit immediately or “hold off if you would like to speak with them first.”
Georges later stated in an affidavit that when he spoke with Knee on October 21, Knee told him to disregard the disallowance and continue to collect medical damages instead of filing suit.
The Town served Kornreich personally with another notice of disallowance on Nov 14.
Lawsuit Filed Eight Months After Disallownace
Kornreich took no action in response to the disallowance.
On May 11, 2021, Anderson emailed Georges and told him that CIC and the Town would “maintain the denial and await a summons and complaint.”
Kornreich filed suit in Ozaukee County Circuit Court on July 19, 2021 – eight months after he was personally served with the notice of the disallowance.
The Town moved for summary judgment, on the grounds that Kornreich’s claim was untimely under section 893.80(1g).
Kornreich argued that the Town should be equitably estopped from asserting a statute of limitations defense, under State ex rel Susedik v. Knutson, 52 Wis. 2d 593, (1971).
The circuit court granted the Town’s motion.
Judge Maria Lazar began her opinion by explaining that to successfully assert equitable estoppel, Kornreich must show that: 1) he relied on the town’s conduct or representations to his detriment; and 2) the town induced the reliance.
Additionally, Lazar pointed out, Kornreich had to establish that the Town had engaged in inequitable or fraudulent conduct.
Kornreich argued that he wasn’t required to prove inequitable conduct, because the six-month limit in section 893.80(1g) was a condition precedent, which the Town was required to perform to trigger the running of the six months, rather than a statute of limitations.
But Lazar concluded that the two cases that Kornreich cited to support that argument were distinguishable because they interpreted other subsections of section 893.80.
Judge Lazar also noted that in Linstrom v. Christianson, 161 Wis. 2d 635, 469 N.W.2d 189 (Ct. App. 1991), the court of appeals characterized section 893.80(1g) as a statute of limitations.
Only a ‘Conclusory Statement’
Lazar then concluded that Kornreich had done nothing before the circuit court to demonstrate that the Town’s conduct was fraudulent or inequitable beyond making a conclusory statement that the Town’s conduct was inequitable.
“On appeal, he states only that a showing of inequitable conduct is ‘[n]ot required’ in his argument that the Susedik test for estoppel is met,” Judge Lazar wrote. “That is not correct.”
No Reasonable Reliance
Moreover, Lazar concluded that Kornreich’s reliance on the Town’s communications was not reasonable.
For one thing, she pointed out, the email from Knee to Georges that Kornreich argued was a withdrawal of the notice of disallowance came several weeks before the Town served Kornreich with the notice of disallowance.
“Following this service upon Kornreich, Kornreich/Georges took no actions to memorialize any agreement to toll the statute of limitations, nor did either of them contact anyone (from the Town, CIC, or Aegis) to confirm that Knee’s purported ‘disregard’ statement – made before the Notice was served on Kornreich – still applied,” Judge Lazar wrote.
Lazar also pointed out that when Anderson sent the May 11, 2021 email to Georges – the one in which Anderson said he would wait for a complaint – there were still three days left to file the lawsuit under section 893.80(1g).
“It is unreasonable to view this May 11, 2021 email as suggesting there were any additional days to file beyond May 14, 2021,” Judge Lazar wrote.
Lazar reasoned that Georges shouldn’t have placed much confidence in Knee’s statement to disregard the notice and not file suit, communicated orally on Oct. 21, 2020, given that Georges had, in an email sent to Knee earlier that day, said that “there is no way [the town board] even spoke with you yet about this.”
Furthermore, Lazard wrote, “Knee’s statement to ‘not file suit’ is not a statement that could reasonably be interpreted as authorizing the tolling of the statute of limitations until further notice, particularly when it was, as Georges avers, in response to Georges’ email saying that he could ‘file suit right away’ or ‘hold off.’”