For the respondent Raymond J. Sambs there was a brief by V. John Burggraf and Wickert Fuhrman, attorneys, and Aaron Belongia of counsel, all of Milwaukee, and oral argument by Mr. Belongia.

Plaintiff, by service of a summons and complaint on April 20, 1966, commenced this action to recover damages for personal injuries. In the complaint, plaintiff alleged that he was injured on February 21, 1965, while a passenger in an automobile operated by Wayne 5. Nowak. The accident occurred on West Lisbon Road in the city of Brookfield. Plaintiff alleged that the accident occurred by reason of the negligence of Nowak in driving the car and the negligence of the defendant city in failing to provide proper drainage and keep the street in a safe condition for public travel in that the street

". . . was in a dangerous and unsafe condition for vehicular travel as a result of the insufficiency of construction, want of repair and maintenance of said W. Lisbon Road, and as a result of the improper and inadequate construction, want of repair and maintenance of the drainage system for the area contiguous to said highway, resulting in water, from every source, running and overflowing said highway and unnaturally remaining on and upon said highway. That as a result thereof, an unnatural accumulation of ice formed on said highway at the place and on the date and at the time of the accident . . . ."

In his complaint plaintiff also alleged that on June 15, 1965, and within one hundred and twenty days after the accident, plaintiff filed

". . . a written notice of claim . . . with the city clerk of the city of Brookfield stating in said notice the place where such injury and damage occurred and describing generally the insufficiency and want of repair and maintenance which occasioned it, . . . ."

A copy of plaintiff's "notice of claim" was attached to the complaint. The notice concluded with the following paragraph:

"And said city of Brookfield, its aldermen and officers are hereby notified that my client, Raymond J. Sambs, claims satisfaction for said injury and damage from said city of Brookfield."

The notice of claim did not specify a dollar amount for plaintiff's claim.

The complaint further alleged that the

". . . claim of the plaintiff was denied by the common council of the city of Brookfield on Tuesday, March 15, 1966. That a written notice of such denial of the plaintiff's claim by the common council of the city of Brookfield was forwarded to the plaintiff's attorney by [the] . . . city clerk of . . . Brookfield."

The letter from the city clerk was addressed to plaintiff's attorney and stated:

"Mr. V. John Burggraf Attorney at Law 9102 West North Avenue Wauwatosa, Wisconsin 53226 "Subject: Claims of Thomas Kurth and Raymond J. Sambs, dated 6/14/65, with regard to an accident on 2/21/65. "Dear Sir: "The claims pertaining to the above subject matter were denied by the common council of the city of Brookfield on Tuesday, March 15th, 1966. "Sincerely, . . . ." On May 9, 1966, the city demurred to the complaint on the ground that it appeared upon the face thereof that the same did not state a cause of action. The trial court overruled the city's demurrer on September 26, 1966. Thereafter, on September 29, 1966, the city answered the complaint denying the alleged defects and negligence. The city did not deny that it had received plaintiff's "notice of claim."

Subsequently, on April 10, 1969, the plaintiff obtained an order to show cause why: (1) The defendant city should not be prohibited "from offering as proof of a limitation on damages recoverable, or as a legal defense, sec. 895.43 (2) or sec. 81.15, Wisconsin Statutes;" and (2) in the event that motion was denied, leave should not be given to serve an amended complaint alleging that the city had in effect at the time of the accident a liability policy in excess of the statutory $25,000 limitations.

On April 14, 1969, at the hearing on this order to show cause, the trial court refused to prohibit the city from offering as proof of a limitation on damages recoverable, or as a legal defense, sec. 895.43 (2) or sec. 81.15, Stats. The court also authorized the city to amend its answer and allege the provisions of these statutes and granted plaintiff leave to serve an amended complaint alleging that the city had in effect at the time of the accident a liability policy with $500,000 limits rather than the statutory $25,000 limits. Also the court granted leave for the amended complaint to allege that by reason of the purchase of this liability insurance, the city had waived the $25,000 statutory limits contained in secs. 895.43 and 81.15 on the amount of damages recoverable against a municipality.

Both the city and the plaintiff then filed amended pleadings alleging these issues.

In its amended answer the city alleged that:

". . . no claim has been filed against this defendant as required by sec. 62.25, Wisconsin Statutes, and alleges that consequently no action can be maintained against this defendant and that this court does not have jurisdiction of the subject matter of the action."

This answer also denied that the existence of insurance changed the liability limits of secs. 81.15 or 895.43, Stats. In addition, the answer further alleged that the issue of the waiver of the statutory limits of liability by the city was a new claim and as such was barred by the statute of limitations and particularly sec. 893.205.

On April 28, 1969, the court, upon the city's motion, granted permission for the city to move for summary judgment within thirty days, pursuant to sec. 269.45 (2), Stats. Thereafter, on May 12, 1969, the city did move for summary judgment dismissing the action against it. Both sides submitted affidavits. On June 6, 1969, the court entered its order denying summary judgment. The city appeals from this order and plaintiff has filed a motion for review of the trial court's order of April 28, 1969, extending the time within which the city could move for summary judgment.

WILKIE, J.

Several issues are raised by the city's appeal. They are:

1. Was the plaintiff's "notice of claim" sufficient to meet the requirements of sec. 62.25, Stats.?

2. Is the city estopped from requiring compliance with sec. 62.25, Stats.?

3. Is the allegation that the city, by acquiring liability insurance, rendered sec. 62.25, Stats., ineffective, a new claim barred by the statute of limitations?

4. Did the city, by acquiring liability insurance, render sec. 62.25, Stats., ineffective?

1. Was the "notice of claim" effective under sec. 62.25, Stats.? Since there is no factual issue presented for determination and the only question presented is a question of law concerning the interpretation of plaintiff's notice of claim in the light of the requirements of sec. 62.25, the matter was properly presented by motion for summary judgment.

Sec. 62.25, Stats., provides in part: "(1) CLAIMS. (a) No action shall be maintained against a city upon a claim of any kind until the claimant shall first present his claim to the council and it is disallowed in whole or in part. . . ."

For example, in Pattermann v. Whitewater, involving a somewhat similar question of interpretation of a notice of claim against a city, we said:

(1966), 32 Wis.2d 350, 145 N.W.2d 705.

"This court has repeatedly held that `entry of summary judgment is proper where issues are legal rather than factual.' We can perceive of no valid reason why this principle is not applicable to a situation where the only issue is the effect to be given a written document." (Citations omitted.)

Id. at page 359.

There is no question but what the notice of claim filed with the city in this case contained no stated dollar amount on plaintiff's claim. It is now well established by previous decisions of this court that for a claim to have efficacy under sec. 62.25, Stats., it must state a specific dollar amount. For example, in Schwartz v. Milwaukee, this court discussed two "notices of claim" filed and concluded that the notices of claim were not that but rather were notices of injury. In that case this court said: "Both of these notices were rejected by the city and neither could be considered a notice of claim because they stated no. amount for the injuries." (Emphasis added.)

(1969), 43 Wis.2d 119, 168 N.W.2d 107.

Id. at page 124. See Colburn v. Ozaukee County (1968), 39 Wis.2d 231, 159 N.W.2d 33; Pattermann v. Whitewater, supra, footnote 2; Firemen's Ins. Co. v. Washburn County (1957), 2 Wis.2d 214, 85 N.W.2d 840.

It is apparent, therefore, that the plaintiff's notice of claim was not in fact a notice of claim within the existing judicial interpretation of that phrase as used in sec. 62.25, Stats. What was filed here can be viewed as a notice of injury, thereby satisfying the requirements of either sec. 81.15 or sec. 895.43 (2). However, as was made clear in the Schwartz Case, both a notice of injury and a notice of claim must be given. In Schwartz, we also stated that

". . . if the claim has not been filed and rejected at the time the issue is raised in the suit, which is commenced before the filing and rejection of the claim, the action shall be dismissed."

Schwartz v. Milwaukee, supra, footnote 4, at page 128.

This language indicates a mandatory dismissal. Here there was no claim; thus, unless there is some reason why the result should not follow, this action should have been dismissed.

The respondent argues that although there has not been literal compliance with the requirements of sec. 62.25, Stats., as regards a filing of a claim, the purpose of the statute has been met. The reason for requiring a notice of claim to be served is to give the city an opportunity to compromise and settle the claim without resorting to costly, extended litigation. The plaintiff argues that the notice of claim served on the city in this case fulfilled that purpose.

See Pattermann v. Whitewater, supra, footnote 2, and cases cited therein. See also: Colburn v. Ozaukee County, supra, footnote 5.

This argument would have merit if the notice of claim, even if subsequently held to be ineffectual, had stated a dollar value on the claim. It is difficult to see how the notice of claim here could give the city an opportunity to compromise when the amount of the claim was not stated.

We recognize that in discussing the presentation of claims to municipalities we have stated that in looking at the requirements of the statute "[a] construction which preserves a bona fide claim so that it may be passed upon by a competent tribunal is to be preferred to a construction which cuts it off without trial."

Moyer v. Oshkosh (1913), 151 Wis. 586, 593, 594, 139 N.W. 378.

Nevertheless, in failing to state a dollar amount for the claim, the authorities make it clear that the notice in the instant case was insufficient and failed of substantial compliance with the requirements of sec. 62.25, Stats.

2. Is the city estopped from requiring a notice of claim in compliance with sec. 62.25, Stats.? Respondent contends that even if the "notice of claim" did not meet the statutory requirements of a claim the city is estopped to deny compliance with the notice of claim requirements sec. 62.25, Stats.

In its decision denying the city's motion for summary judgment, the trial court, agreeing with this contention, concluded:

"The motion for summary judgment by the city of Brookfield must be denied. It is brought after a detrimental change in position by the plaintiff, giving rise to estoppel. On the merits the city has, by deliberate choice, accepted the document filed as a claim, and for its own benefit served notice of disallowance and has thereby waived the technical requirements, and is estopped from now relying on them."

However, in Schwartz we made it clear that filing a claim is a condition precedent to recovery in a case such as is involved here. The defendant-appellant city cannot be estopped to assert plaintiff-respondent's failure to properly comply with the notice of claim requirements of sec. 62.25, Stats.

Schwartz v. Milwaukee, supra, footnote 4, at page 128.

Actually, the "notice of claim" given here, since it stated no dollar amount, can be viewed as no claim at all, regardless of the city's subsequent disallowance of it. If it is viewed as no claim at all, the case then becomes analogous to those situations where there is a total failure to file a claim prior to the time the issue was raised in the action. This is, at least, a condition precedent to recovery and in such situations dismissal follows. Accordingly, the holding in Schwartz is refined to require a proper notice of claim to be filed as a condition precedent to recovery. The city was not estopped here from asserting this defense at the point it did.

Foreway Express, Inc. v. Hilbert (1966), 32 Wis.2d 371, 145 N.W.2d 668.

See Schwartz v. Milwaukee, supra, footnote 4.

See generally: L.G. Arnold, Inc. v. Hudson (1934), 215 Wis. 254 N.W. 108.

3. Is the plaintiff asserting a new claim barred by the statute of limitations in alleging that defendant city, by acquiring liability insurance, rendered sec. 62.25, Stats., ineffective? The city contends that it was not until plaintiff served its amended complaint on April 23, 1969, that the issue of the effect of the city's liability insurance on the requirements of sec. 62.25, Stats., was raised. This was four years and two months after the accident and more than two years after the plaintiff became twenty-one years of age. The city contends this is a "new claim" and is thus barred by sec. 893.205 (1) and sec. 893.33.

This argument has no merit. The frequently cited Meinshausen v. A. Gettelman Brewing Co. Case, set forth the rule that an amendment:

(1907), 133 Wis. 95, 113 N.W. 408.

". . . `which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. . . .'"

Id. at page 102.

The allegation (in the amended complaint) challenged here merely expands the cause of action already propounded by the plaintiff and as such is not barred by the statute of limitations. The plaintiff, by raising this issue, is still merely trying to force the city to respond in damages for its alleged negligence in causing plaintiff's injury. This allegation is only a new wrinkle on plaintiff's previously stated cause of action.

See generally: Lealiou v. Quatsoe (1961), 15 Wis.2d 128, 112 N.W.2d 193.

4. Did the city, by acquiring liability insurance, render the requirements of sec. 62.25, Stats., under state law, ineffective? The argument made by the plaintiff on this issue is: Since the purpose of sec. 62.25, Stats., is to afford the city an opportunity to compromise claims, the city, by purchasing liability insurance with a policy provision vesting complete right to investigate, negotiate and settle any claim in the insurer, has elected to waive the purposes of sec. 62.25 as far as itself compromising any claims is concerned. Thus, the failure of the plaintiff's notice of claim to state a dollar amount is immaterial since sec. 62.25 no longer applies.

The plaintiff recognizes that there is no direct authority in Wisconsin case law reaching this result. However, as general authority, the plaintiff cites Marshall v. Green Bay, wherein this court, in dealing with a situation which arose prior to the effective date of the abrogation of the doctrine of governmental immunity for torts, held that where a city obtains a policy of liability insurance which includes a provision that the insurer would not raise the defense of governmental immunity, it is a waiver of governmental immunity.

(1963), 18 Wis.2d 496, 118 N.W.2d 715.

See Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618.

However, in Marshall this court specifically said:

". . . We do not hold, however, a municipality waives its immunity when it takes out a liability policy which does not contain the condition or agreement to refrain from raising the defense of governmental immunity."

Supra, footnote 16, at page 502. See also: Niedfelt v. Joint School District (1964), 23 Wis.2d 641, 127 N.W.2d 800.

We fail to see the materiality of the Marshall decision to the instant issue. Plaintiff, citing Marshall, advances the proposition that a city has the inherent power to waive its immunity and that the defendant city, by agreeing to lodge the exclusive control of the settlement of claims with its insurer, has waived the statutory protection found in sec. 62.25, Stats.

But regardless of who has the authority to compromise and adjust claims against the city, before any attempts at compromise are made, a claim must exist. Whether it is the city or its insurer who engages in the adjustment and compromise of a claim, sec. 62.25, Stats., protects either by requiring a claim to be made. Even assuming that when a city obtains liability insurance with a provision in the policy requiring the insurer to settle any claims, the requirements of sec. 62.25, as far as protecting the city is concerned, are waived, nevertheless, the protections of that statute inure to the benefit of the insurer. A claim must be filed.

Our consideration of the issues raised by the city leads us to conclude that the trial court was in error in not granting defendant's motion for summary judgment. The trial court should have granted the motion and dismissed the action without prejudice, in order to afford the plaintiff the opportunity to comply with sec. 62.25, Stats.

See Colburn v. Ozaukee County, supra, footnote 5, at page 239; Pattermann v. Whitewater, supra, footnote 2 at page 360.

Although the statute of limitations has now run on the plaintiff's original cause of action, sec. 893.35, Stats., invokes an exception to the barring of plaintiff's cause of action on that account and authorizes the plaintiff to commence an action within one year from the date of the decision in this case.

See sec. 893.205, Stats.

See generally: Pattermann v. Whitewater, supra, footnote 2, at page 361.

Motion to review.

The final issue to be considered on this appeal is the one raised by plaintiff's motion to review: Did the city show sufficient "cause" as required in sec. 269.45 (2), Stats., on its motion for enlargement of time to move for summary judgment?

Although sec. 270.635 (1), Stats., requires summary judgment to be brought within forty days after the joinder of issue, enlargement of time for cause may be granted within the discretion of the trial court. The trial court here exercised that discretion in granting the extension.

Sec. 269.45, Stats.

Furthermore, the record is unclear as to whether plaintiff objected to defendant's motion to extend time. If there was no objection (and this seems to be the case), plaintiff cannot now raise the issue. By the Court. — Order reversed. No costs to be taxed on this appeal.

See Rice v. Gruetzmacher (1965), 27 Wis.2d 46, 133 N.W.2d 401.

Sambs v. Nowak

Summary

Opinion

Motion to review.

Sambs v. Nowak

Sambs v. Nowak

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Sambs v. Nowak

Summary

Opinion

Motion to review.

Sambs v. Nowak

Sambs v. Nowak

Case Details

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Citing Cases

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