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Dakin v. Marciniak3/8/2005
. Roundy's, Inc., the successor in interest to Copp's Food Center, a/k/a Copp's Corporation, appeals a non-final order denying its motion for summary judgment in this personal injury case. Roundy's argues the court erred when it concluded that, under Wis. Stat. § 802.09(3), Ruth Dakin could amend her complaint to add Roundy's as a defendant after the three-year statute of limitations for her claims had expired. Roundy's contends there is no legal or public policy basis under (1) the relation back statute, § 802.09(3); (2) the tolling provisions of Wis. Stat. §§ 893.54 and 893.13; or (3) Wisconsin's judicially created discovery rule to allow Dakin to assert her untimely claims against it. We agree, reverse the order, and remand the cause to the circuit court with directions to grant a summary judgment in favor of Roundy's, thereby dismissing it from the lawsuit.
Background
. The events that gave rise to the underlying personal injury action in this case are straightforward. On April 4, 2000, at around 4:18 p.m., Eric Pease backed his car out of a parking space in a Copp's Food store parking lot. A bus Francis Marciniak was driving through the same lot swerved to avoid colliding with Pease. Although the car and the bus never made contact, Dakin, a passenger in the bus, was thrown from her seat and injured. Dakin left the Copp's parking lot in an ambulance. Pease never reported this incident to his then employer, Copp's.
. The procedural history of Dakin's claim is more complicated. On March 17, 2003, about three weeks before the statute of limitations expired, Dakin filed a complaint against Pease, Marciniak, Langlade Memorial Hospital, several named insurance carriers, and an unknown carrier and an unknown defendant under the fictitious name statute. See Wis. Stat. § 807.12(1). On November 24, Dakin amended her complaint, adding Roundy's as a defendant. Because Pease was an on-the-clock employee of Copp's at the time of the accident, the amended complaint alleged that Roundy's was liable to Dakin under a theory of respondeat superior. On January 6, 2004, Roundy's moved for summary judgment on the ground that the statute of limitations for Dakin's personal injury claim had expired. After a February 23 hearing, the circuit court denied the motion. Roundy's petitioned this court for leave to appeal the non-final order. See Wis. Stat. § 809.50. We granted the petition on June 1, 2004.
Standard of Review
. A motion to dismiss based on the statute of limitations is treated as a motion for summary judgment. Wis. Stat. § 802.06(2)(b). We review such motions independently, applying the same methodology as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). If the plaintiff states a claim and the pleadings show the existence of factual issues, we determine whether the moving party has presented a defense that would defeat the claim. Wiegert v. Goldberg, 2004 WI App 28, , 269 Wis. 2d 695, 676 N.W.2d 522. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).
Discussion
. The parties agree that claims such as Dakin's are governed by Wis. Stat. § 893.54, which establishes a three-year statute of limitations for actions brought to recover damages caused by the "wrongful act, neglect or default of another." The parties also agree that Dakin's amended complaint, naming Roundy's as a defendant, was filed more than three years after the April 2000 accident. The circuit court concluded the statute did not bar Dakin's claims against Roundy's, however, because Dakin's amended complaint r
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