The claim has to be properly stated, served and filed. All the elements have to be there – on time – or else you risk forfeiting your right to assert damages, perhaps forever.
This was the unfortunate outcome for plaintiff in Sorenson v. Batchfelder, recently before the Wisconsin Supreme Court. Although this is an out-of-state case, the same general principles apply.
According to court records, plaintiff suffered personal injury and property damage as a result of a traffic accident allegedly caused by a state employee.
The state worker was operating a state vehicle and was on-the-job as part of his duties with the Department of Administration. The state worker had been rear-ended by another vehicle, causing him to rear-end plaintiff’s vehicle.
While the driver of that first vehicle certainly could be held to account for those actions, the state worker in this situation could also be held liable for following plaintiff to closely.
In seeking to file her personal injury lawsuit, she served the notice of claim on the attorney general by personal service at the AG’s main office in the state capitol.
Personal service was accepted by the state employee who acknowledged its receipt and it was then forwarded to the attorney general’s personal office at a different location. There, it was processed, endorsed by another state worker and then returned to plaintiff’s attorney’s office.
Following this, the state’s office of risk management issued a check for just $242 for property damage, indicating this was not an admission of liability.
Two years later, plaintiff filed a negligence lawsuit against the state worker, who responded with a motion to dismiss for improper service of notice of claim. He argued plaintiff had not satisfied the state law requirement mandating plaintiff’s to provide service by certified mail. Because she instead use personal service, she didn’t comply with the statute, he alleged.
The trial court disagreed with defendant and denied his motion to dismiss because the attorney general had received the notice of claim. The court ruled this was all that was required.
On appeal, however, the appellate court reversed. The appeals court noted the statute clearly says service must be accomplished by certified mail and that by personally serving the notice, she failed to strictly comply with the statute. Because the statute of limitations had already run on the claim, she no longer had time to proper serve the claim and refile the lawsuit.
Plaintiff’s only recourse at that point was to appeal to the Wisconsin Supreme Court, which granted review.
The state high court affirmed, holding that the language of the statute had a clear, plain meaning. That means it is unambiguous and easy to understand.
Plaintiff didn’t dispute the language or meaning of the statute. She did argue, however, that her actions fulfilled the intention of the statute by providing actual notice to the attorney general’s office. Further, she argued that to regard her personal service as not in compliance with the statute would have an absurd result – i.e., the dismissal of her otherwise viable claim.
However, the Wisconsin Supreme Court ruled that strict compliance with the literal adherence to the words was necessary in this case, and affirmed the appellate court’s decision to grant defendant’s motion to dismiss.
An experienced injury lawyer can help ensure that you don’t fall into these kinds of procedural traps. Only partial compliance with procedural statutes in injury cases is often not good enough.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Sorenson v. Batchfelder, May 12, 2016, Wisconsin Supreme Court
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Florida Construction Accident Investigated, April 25, 2016, Fort Lauderdale Injury Attorney Blog