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Dakin v. Marciniak3/8/2005
ver the conduct of an employee may be held vicariously liable for that employee's negligent actions even when the employer had no actual knowledge of the negligent behavior. See, e.g., Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, , 273 Wis. 2d 106, 682 N.W.2d 328. But the fact that constructive notice can sometimes create vicarious liability does not mean that such notice is adequate for the purposes of ameliorating the effects of statutes of limitations. In Wisconsin, " he limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other ... which enjoys constitutional protection." Haase v. Sawicki, 20 Wis. 2d 308, 311-12, 121 N.W.2d 876 (1963). Statutes of limitations thus implicate vital interests and are not designed to be easily avoided.
. Statutes of limitations serve the critical public policy interests of limiting fraudulent claims and encouraging vigorous litigation of proper claims. Adequate and timely notice is critical to both policies. To the extent that constructive notice is either imputed knowledge or, as earlier courts have described it, a mere "trademark of fiction," such notice will rarely be sufficient to identify an underlying transaction for the purposes of investigation and defense. Schoedel v. State Bank of Newburg, 245 Wis. 74, 76, 13 N.W.2d 534 (1944) (" onstructive notice is in point of literal fact neither notice nor knowledge."). We reject Dakin's theory that when she timely named Pease, who had not been a Copp's employee since 2000, and an unknown defendant in a complaint, she also gave Roundy's, who had never employed Pease, adequate notice that it would have to investigate and defend against her claims. Under these facts, Dakin's argument about constructive notice fails.
. Even if we agreed that constructive notice could satisfy the relation back statute, that notice would still have to have occurred before the statute of limitations expired. For the purposes of a statute of limitations, an action must be commenced before a particular time, meaning a summons and complaint naming a defendant must be filed with the court before that time expires. See Wis. Stat. ยง 801.02. Once the court has subject matter jurisdiction over the claim, the plaintiff has sixty more days to obtain jurisdiction over the person of the defendant by proper service. See id. If, as here, the plaintiff files a complaint and summons within the statutory time limits using a fictitious name for one defendant, the plaintiff may amend the complaint after the limitations have expired as long as the action leaves the defendant in "no worse position ... than it would have been had it been named accurately in the first summons and complaint ...." Lak v. Richardson-Merrell, Inc., 100 Wis. 2d 641, 649, 302 N.W.2d 483 (1981). To satisfy the fourth condition of the relation back statute, the defendant must thus have notice by proper service no more than sixty days after the statute of limitations expires. Here, Dakin did not serve Roundy's until she filed her amended complaint in November, well after the sixty days had passed.
. Roundy's also argues that the Wisconsin discovery rule is inapplicable because Dakin's claim clearly accrued on the day the accident occurred. Dakin counters that, for the purposes of statutes of limitations, a claim does not accrue until a plaintiff discovers both an injury and the defendant who may have caused that injury. See Borello v. United States Oil, 130 Wis. 2d 397, 410-11, 388 N.W.2d 140 (1986). Under that formulation, Dakin argues that her claim did not accrue until she knew the identity of all the parties who caused her injury, including Roundy's. We disagree.
. The supreme court first
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