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Brown v. Curtis-Universal Inc.3/9/1999
APPEAL from an order of the circuit court for Milwaukee County: MICHAEL D. GUOLEE, Judge. Reversed.
Curtis-Universal, Incorporated, Curtis Ambulance and Acceptance Insurance Company appeal from the trial court's order dismissing their third-party contribution claim against the City of Milwaukee. Curtis argues that the trial court erred in determining that its contribution claim against Milwaukee is subject to the notice of claim statute, § 893.80, Stats. We conclude that § 893.80 does not apply to Curtis's contribution claim. We therefore reverse.
BACKGROUND
On March, 4, 1994, Rhonda Brown died at a Milwaukee hospital, after being transported there by personnel of Curtis Ambulance. The Milwaukee police accompanied Brown and the ambulance personnel on the trip to the hospital because Brown allegedly had overdosed on cocaine and was behaving violently. The police allegedly placed Brown in restraints, and then placed her face-down on the ambulance stretcher to help control her violent thrashing. En route to the hospital, Brown experienced respiratory distress, and although she was revived at the hospital, Brown died the next day.
On February 26, 1997, Brown's mother, individually and as the special representative of Brown's estate, filed an action against Curtis, seeking to hold Curtis liable for Brown's death. On May 23, 1997, Curtis filed a third-party complaint against the City of Milwaukee, seeking contribution from the City if Curtis and the City were found to be jointly liable for Brown's death.
On July 16, 1997, the City filed a motion to dismiss Curtis's third-party contribution complaint on the ground that Curtis had failed to file a notice of claim pursuant to § 893.80, Stats. The trial court granted the motion, and on September 18, 1997, dismissed Curtis's claim against the City.
DISCUSSION
Section 893.80, Stats., provides, in relevant part:
"Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits. (1) ... o action may be brought or maintained against any ... political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe 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 ... political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 801.11. Failure to give the requisite notice shall not bar action on the claim if the ... 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 ... corporation, subdivision or agency or to the defendant officer, official, agent or employe; 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 ... corporation, subdivision or agency and the claim is disallowed."
Curtis argues that the trial court erred in determining that its contribution claim against Milwaukee is subject to this notice of claim statute. Curtis contends that, under Ainsworth v. Berg, 253 Wis. 438, 34 N.W.2d 790 (1948), mandate modified, 253 Wis. 438, 35 N.W.2d 911 (1949),
Page 1 2 Wisconsin Personal Injury Attorneys
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