​Jan. 3, 2013 – In its first decision of 2013, the Wisconsin Supreme Court clarified the process for filing claims against state employees and made recommendations to avoid unnecessary litigation in the future while reversing two lower courts decisions in the case.

Specifically, in Estate of Hopgood v. Boyd, 2013 WI 1 (Jan. 3, 2013), the supreme court clarified that notices of claims against state agents or employees must contain a statement showing an oath or affirmation occurred, but an authorized witness is not required to make the statement.

“Nevertheless, in the future, to promote certainty and to avoid unnecessary litigation, we urge claimants to file notices of claims using a jurat in which the notary sets forth that the notice was ‘sworn to’ or affirmed before the notary,” wrote Justice Ann Walsh Bradley for the court.

Notices under Wis. Stat. § 893.82

Jimmy Boyd was driving a state-owned vehicle in Kenosha County when he lost control. The car spun off the road and flipped. One passenger died, and several others were injured.

The estate of the killed passenger, Danny Hopgood, as well as the injured passengers, allege that Boyd was negligent. They filed a “notice of claim” upon the attorney general as required by Wis. Stat. section 893.82(3), claiming Boyd was an agent of the state.

Under that provision, petitioners cannot bring civil actions against state agents, unless the claimant “serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved.” The notice must be given within 120 days of the event causing the injury.

Attorneys for Hopgood et al. (Hopgood) prepared the notices, which were executed before two different notaries public, paralegals at the law firm. Proper oaths were administered to the petitioners, which then served the notices upon the attorney general. Boyd moved to dismiss.

Boyd argued the notices did not comply with section 893.82(5), which requires notices of claims to be “sworn to” by the claimant before serving the attorney general.

That is, Boyd said the notices did not contain statements from the notaries public that the notices were “sworn to” before them; only the claimants swore that oaths were administered.

The circuit court ruled that s. 893.82(5) requires a person giving the oath to make a statement that the oath was given in a notice of claim. Because the notaries public made no statement to this effect, the circuit court granted summary judgment to Boyd. An appeals court affirmed.

Reversed: Notice of Claim was Sufficient

Justice Bradley delivered the opinion for a unanimous court.

Examining the statutory language and relevant case law, the Wisconsin Supreme Court ruled that the petitioners’ notices of claims were sufficient despite the absence of an acknowledgment from the notaries public, authorized witnesses, that they actually gave the oaths to petitioners.

Under Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995), the court explained, section 893.82(5) requires a claimant to take an oath or affirmation and requires a notice of claim to “contain a statement showing that the oath or affirmation occurred.”

However, the court rejected Boyd’s argument that Newkirk v. Dept. of Transp., 228 Wis. 2d 830, 598 N.W.2d 610 (Ct. App. 1999), interpreting Kellner, requires a notary public to expressly affirm or acknowledge that an oath or affirmation occurred under section 893.82(5).

“We conclude that Kellner sets forth two requirements in order for a notice of claim to be properly ‘sworn to’ under Wis. Stat. § 893.82(5),” Justice Bradley wrote. “To the extent that Newkirk appears to expand those requirements, it misapplied Kellner.”

“Kellner’s holding does not require in a notice of claim that an authorized person be the one making the statement that an oath or affirmation occurred,” Justice Bradley noted.

While the supreme court acknowledged that petitioners’ notices of claims were sufficient, absent the notary public’s acknowledgement, they urged future petitioners to include the acknowledgement anyway, “to promote certainty and to avoid unnecessary litigation.”

“The Kellner court likewise emphasized a greater need for certainty in order to avoid a case-by-case analysis of whether a claimaint has complied with the requirements of Wis. Stat. § 893.82(5),” noted Justice Bradley, suggesting the statutory form under section 706.07(8)(c).

“Any jurat in the statutory form described above unambiguously complies with the mandates of Kellner and Wis. Stat. 893.82(5),” Justice Bradley concluded for the court.

Attorneys

The petitioners were represented by: Daniel Rottier, Timothy Trecek, and Rhonda Lanford of Habush, Habush & Rottier S.C., Milwaukee; Ronald Curtis of Curtis Law Office, Milwaukee; and Michael Egelhoff of Egelhoff Law Offices, Wauwatosa. Assistant Attorney General John Glinski represented respondent Jimmy Boyd in his capacity as a state agent.