Interpreting Wisconsin's Borrowing Statute

by Shirley A. Wiegand

Imagine that a Wisconsin corporation manufactures and ships paper products throughout the United States. On one particular shipment, the company negligently loads a semi-trailer with the paper products. A Wisconsin trucker drives the vehicle from Wisconsin to New Jersey to deliver the product. In Pennsylvania, the driver opens the rear of the truck to check on his load and the paper products fall on him, causing serious injury. Wisconsin's personal injury statute of limitations is three years. Assume that Pennsylvania's is two years. If the Wisconsin driver sues the Wisconsin corporation in a Wisconsin court two-and-a-half years after his injury, will the Pennsylvania statute of limitations bar his action?

Prior to the 1970s, courts faced with a case involving interstate connections chose between two options. They might apply choice of law principles to determine which statute of limitation applied. This is the approach recommended by the Uniform Conflict of Laws-Limitations Act, approved in 1982 by the National Conference of Commissioners on Uniform State Laws.1 It "treats statutes of limitations as substantive, to be governed by the limitations law of a state whose law governs other substantive issues inherent in the claim," regardless of whether or not the forum's law would be shorter or longer. But states were more likely instead to consider statutes of limitation to be "procedural" and therefore apply their own statute of limitations. Needless to say, this often led to forum shopping, with the plaintiff searching for an available forum with the longest limitations period. Beginning in the 1970s, states began to pass "borrowing statutes," so called because they direct courts to borrow the statute of limitations of other states under specified circumstances, thereby avoiding a complex choice of law analysis2 and discouraging forum shopping.

Prior to 1979, Wisconsin's borrowing statute applied only to personal injury cases. When an injury occurred outside the state and a statute of limitations at the place of injury was shorter than Wisconsin's three-year period, that shorter period applied unless the plaintiff was a Wisconsin resident. For plaintiffs who were Wisconsin residents, the longer Wisconsin period applied.3

In 1979, the Wisconsin Legislature adopted section 893.07. The statute provides that for actions "brought in this state on a foreign cause of action," the action cannot be maintained if either Wisconsin's or the foreign state's statute of limitations has expired.4 In other words, when a cause of action is considered "foreign" because of events that occur outside of Wisconsin, the court will consider the statutes of limitation of both states and apply the shorter of the two. Residency is no longer relevant; both Wisconsin and out-of-state residents will be barred by the shorter limitations period if the action is deemed "foreign." In the example above, if the cause of action is deemed foreign because the injury occurred in Pennsylvania, the action will be barred by Pennsylvania's shorter period of limitations regardless of the residence of either the plaintiff or defendant.

Wisconsin's borrowing statute reflects a statutory choice of law decision. Courts have noted that it eliminates the need to apply what is often a difficult and imprecise choice of law theory in a case involving more than one state. It is designed to reduce forum shopping, prevent stale claims, expeditiously advance litigation, and avoid "uncertainty in assessing the timeliness of bringing an action in this state without the necessity of a court hearing to make such a determination, thereby preserving scarce judicial resources."5

Wisconsin's current borrowing statute honors these values at the expense of others. Suppose that drivers of two vehicles are from Wisconsin, both heading south on Interstate Highway 94. They are involved in a car crash seconds after they cross the Wisconsin-Illinois border. Wisconsin's applicable statute of limitations is three years. Because the Illinois statute of limitations is two years,6 the action will be barred after two years under section 893.07. Although the Wisconsin Legislature has determined that stale claims arise only if an action is brought after three years, the result in this case means that this Wisconsin plaintiff must bring the action against a Wisconsin defendant within two years because the Illinois Legislature has determined that two years is more appropriate. Though the statute eliminates uncertainty - the shorter of the limitations periods applies - it may seem illogical to apply the Illinois statute of limitations in a Wisconsin court simply because the two residents crashed less than a mile over the border. Nevertheless, the state legislature has determined, as it must for all legislation, that some values prevail at the expense of others.

The court's task then is to interpret and apply the borrowing statute as enacted. However, the statute does not define a "foreign" cause of action. Nor does it indicate whether or not foreign tolling statutes or statutes of repose also should be borrowed when applying a foreign statute of limitations. In the example above involving two drivers who crash in Illinois, Wisconsin's current borrowing statute directs the court to apply the shorter Illinois two-year statute of limitations if the action is foreign. But what if the plaintiff is only 19 when he is injured and Illinois has a tolling statute that tolls the statute of limitations for anyone under the age of 21 at the time of injury? Does the Wisconsin court follow that as well, rather than its own tolling statute, section 893.16, that applies only to one who is injured prior to the age of 18?

The Wisconsin courts have now had more than 20 years to interpret section 893.07. This article traces the statute's development and interpretation as reflected in the cases that have been decided since 1979. The courts have now defined "foreign" cause of action for both tort and contract cases and have determined that neither foreign tolling statutes nor statutes of repose will be borrowed along with foreign statutes of limitation.

What is a Foreign Cause of Action?

Wisconsin's borrowing statute applies only if the cause of action is "foreign"; if it is not foreign, Wisconsin will apply its own statute of limitations. Section 893.07's predecessor specifically applied only to tort actions: "injuries to the person, received without this state." The new statute does not clearly state whether it applies to both tort and contract actions, nor whether "foreign" simply replaced "injuries ... received without this state."

The first court to interpret Wisconsin's new borrowing statute did so in 1982. In Office Supply Co. v. Basic/Four Corporation,7 the Eastern District of Wisconsin conducted a "center-of-gravity" choice of law analysis8 to determine whether or not a cause of action was foreign. (In federal diversity cases, federal courts apply the substantive law of the state in which they sit, including its choice of law analysis, and "[t]he law of the forum state ... controls the choice of which statute of limitations applies.")9 The court found that the contract cause of action was not foreign because Wisconsin had significant contacts with the contract; therefore, the borrowing statute was inapplicable and Wisconsin's longer statute of limitations applied. By conducting a choice of law analysis to determine if the borrowing statute applied, however, the court disregarded the raison d'être of the borrowing statute - to avoid complex and uncertain choice of law analysis.

In 1987, the Seventh Circuit Court of Appeals corrected this mistake in two cases decided that year. In both Johnson v. Deltadynamics Inc.10 and Beard v. J.I. Case Co.,11 the court, without engaging in any choice of law analysis, held that the Wisconsin borrowing statute applied because the cases involved a foreign cause of action. The court in Johnson recognized that the new statute expanded its reach from personal injury actions to all actions. Furthermore, since the injury occurred in Indiana, the tort constituted a foreign cause of action. In Beard, since the injury occurred in Tennessee, the action also was foreign. In both cases then, Wisconsin's borrowing statute directed application of the shorter statute of limitations.

The first state court decision to discuss section 893.07 was Guertin v. Harbour Assurance Company.12 It involved a Wisconsin truck driver injured in a slip and fall off a semi-trailer in Illinois. He sued numerous defendants, most of whom were Wisconsin residents, after the Illinois two-year statute of limitations had run but before Wisconsin's three-year statute had run. Guertin argued that the court should conduct a choice of law analysis to determine whose statute applied. He urged the court to apply a "grouping or assessment of significant contacts" analysis, which, he argued, would lead the court to conclude that this case did not involve a foreign cause of action because of its significant contacts with Wisconsin. The Wisconsin Supreme Court disagreed. It held that the borrowing statute applied because the injury arose in another state. In this case, the Illinois statute of limitations barred the action.

The Guertin plaintiff also asserted that the law violated the federal Equal Protection Clause and Article 1, section 1 of the Wisconsin Constitution,13 in that it denied some Wisconsin residents the benefit of their own state's statute of limitations solely because their injury occurred out of state. The court noted a "strong presumption of constitutionality of statutes" and that "a statute will be sustained if there is any reasonable basis upon which the legislation may reasonably rest." Applying a rational basis test, the court found that the two classes of plaintiffs are 1) those injured within the state, regardless of whether or not they are Wisconsin residents; and 2) those injured outside the state, regardless of whether or not they are Wisconsin residents. The rational basis for the distinction is to "obviate[] uncertainty where more than one statute of limitation might apply, protecting all parties by the creation of a bright line rule which allows predictability in an area previously fraught with confusion." This satisfied the rational basis test. Finally, the court noted that when an injury occurs in Wisconsin so that the borrowing statute is inapplicable, Wisconsin courts should apply their own statute of limitations.14

In 1995, the Wisconsin federal district court in Terranova v. Terranova15 determined when a contract cause of action is foreign, thus implicating the borrowing statute. The court followed the lead of Guertin and held that a contract cause of action is foreign when the breach occurs outside of the state. Here the defendants were residents of Wisconsin and Michigan. The plaintiffs were residents of California. The causes of action arose when two groups of family members terminated their business relationship and entered into an "Agreement and Plan of Separation and Reorganization." The agreement divided various assets, resulting in a large California tax assessment against some of the parties to the contract. The actions were all based on the "defendants' alleged failure either to disclose to plaintiffs the California tax liability before the separation agreement was executed or to indemnify plaintiffs for any portion of the liability."16

The court held that the contract causes of action were not foreign, because although the plaintiffs resided in California when they demanded indemnification, the Wisconsin defendants rejected the plaintiffs' demands in Wisconsin. Thus, because the borrowing statute was not implicated, Wisconsin was free to apply its own six-year statute of limitations.

In 1998, the Wisconsin Supreme Court adopted Terranova's reasoning. In Abraham v. General Casualty Co.,17 Abraham, a Florida resident, was insured by General Casualty, a company licensed to do business and having its principal place of business in Wisconsin. He was struck and injured by a vehicle while riding his bicycle in Florida. General Casualty refused to provide certain underinsured benefits to Abraham, prompting him to sue. General Casualty responded by raising Florida's five-year statute of limitations that it claimed applicable under Wisconsin's borrowing statute.18

The court first held that even though the present statute does not specifically mention contract causes of action, its legislative history clearly makes the statute applicable in contract actions. Next, the court affirmed the Guertin test for determining when the state's borrowing statute applies in tort cases: "[T]he place of the tortious injury ... is the decisive factor for causes of action sounding in tort: If a party is injured outside the state of Wisconsin, the injured's claim in tort is a 'foreign cause of action.'"19 For contract cases, "a claim sounding in contract is a 'foreign cause of action' when the final significant event giving rise to a suable claim occurs outside the state of Wisconsin." The court recognized that "in certain factual situations ... even this test would not be without ambiguity."20 Nevertheless, the court opted for a test that would yield certainty in most circumstances.

Turning to the facts in the case, the court found that the breach of contract occurred in Wisconsin, where the insurer rejected the plaintiff's claim. The cause of action was not foreign, and Wisconsin was free to apply its own statute of limitations. Thus, whether a cause of action is foreign depends entirely upon where the last event takes place that gives rise to a cause of action; for tort, the place of injury, and for contract, the breach.

Relationship of the Borrowing Statute to Tolling and Repose Statutes

Another question now answered by Wisconsin courts is whether laws that relate to statutes of limitation, for example, statutes of repose or tolling statutes, accompany the foreign statute of limitations when it is borrowed.

Statutes of limitation and statutes of repose frequently are confused. Unlike a statute of limitations that bars the filing of an action if the plaintiff does not file suit within a specified period of time after a cause of action accrues, "a period of repose bars a suit a fixed number of years after an action by the defendant (such as manufacturing a product), even if this period ends before the plaintiff suffers any injury." 21 Thus, the plaintiff may be time-barred from filing a cause of action even before it accrues.

Although the Wisconsin Supreme Court has yet to address the issue, decisions by Wisconsin's state and federal courts of appeals suggest that foreign statutes of repose do not follow foreign statutes of limitation under section 893.07. In 1987 the Seventh Circuit Court of Appeals in Beard v. J.I. Case Company22 held that the borrowing statute required use of the foreign statute of limitation, but not the foreign period of repose. In Beard, a Tennessee farmer was injured in Tennessee by a corn picker allegedly defectively designed in Wisconsin. Although he filed his action only four months after his injury, a Tennessee statute of repose bars product liability actions if they are not filed within 10 years from the date the product was first purchased for use or consumption. In the case of this specific corn picker, no action could have been brought after 1960, because the corn picker was first purchased in 1950.

The defendant argued that because Wisconsin would apply the Tennessee statute of limitations under its borrowing statute, it must also apply the Tennessee statute of repose. The Seventh Circuit disagreed. It noted that Wisconsin courts had long demonstrated resistance to statutes of repose, finding that they presented "grave constitutional concerns"23 under the Remedy for Wrongs provision of the Wisconsin Constitution. Article I, section 9 of the Wisconsin Constitution guarantees "[e]very person ... a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character...." On more than one occasion, the Wisconsin Supreme Court had avoided applying even its own statutes of repose on this ground.24 The Seventh Circuit therefore followed Wisconsin's lead, holding that although the Tennessee statute of limitations applied in this case, the Tennessee statute of repose did not. The case was therefore not time-barred.

It is important to note that statutes of repose may receive more favorable treatment today. In Aicher v. Wisconsin Patients Compensation Fund,25 decided just last year, the Wisconsin Supreme Court demonstrated great deference to a statute of repose, finding that "the legislature may sever a person's claim by a statute of limitations or a statute of repose when the person has had no possibility of discovering the injury - when the person has been blameless in every respect. These decisions represent judicial deference to the stated policy of the legislature."26 The effect of this ruling was to reject suggestions in other recent opinions that statutes of repose might be unconstitutional.27 It is thus possible that courts in the future will be more amenable to accept foreign statutes of repose, but likely not. Wisconsin courts apparently are willing to give deference to the Wisconsin Legislature, but they may not be willing to do so to foreign legislatures.

A court of appeals decision offers an additional ground for courts to reject foreign statutes of repose. In Leverence v. United States Fidelity & Guaranty,28 decided in 1990, the Wisconsin Court of Appeals, citing Beard approvingly, held that foreign statutes of repose would not accompany a borrowed statute of limitations. It noted that Wisconsin's borrowing statute refers to periods of "limitation," not periods of "repose," so by definition and in plain language it necessarily does not include foreign statutes of repose.

Tolling statutes have received similar treatment. Scott v. First State Insurance Company29 involved the interplay between section 893.07 and 893.16(1), which provides, "If a person entitled to bring an action is, at the time the cause of action accrues, ... under the age of 18 years ... the action may be commenced within 2 years after the disability ceases...." In this case, an 11-year-old was injured on his family's Canadian farm by a barn cleaner designed, manufactured, or sold in Wisconsin. He filed suit six years later at the age of 17. The tolling statute of Alberta, Canada, did not apply to minors in the actual custody of a parent, so it did not toll the limitations period. There was little doubt that the Canadian statute of limitations applied to this foreign cause of action. The only question was whether or not Wisconsin was also obligated to borrow the Canadian tolling statute.

The court examined the language of the tolling statute and concluded that "[s]ection 893.16(1) makes no distinction between a domestic and foreign cause of action; it expressly states that the tolling provisions apply to a person entitled to bring an action who is a minor when the cause of action accrued."30 Rejecting the holdings of numerous courts in other states,31 the Wisconsin Supreme Court held that Wisconsin's borrowing statute, section 893.07, borrows only a foreign statute of limitations and not its tolling statute. Thus, the applicable Wisconsin tolling statute tolled Alberta's two-year period of limitation until the plaintiff reached the age of majority, and the action remained viable.

Unresolved Questions

Although the borrowing statute has been clarified, it remains subject to criticism. First, results reached by the statute's application may appear illogical and unfair. Why should a Wisconsin plaintiff suing a Wisconsin defendant for an injury that fortuitously occurred just across the Wisconsin border lose the benefit of a longer Wisconsin statute of limitations?

Second, locating the place of the final event that gives rise to a claim may be difficult. Where does a contract breach occur? One might imagine an airline passenger in flight above Lake Michigan between Milwaukee and Detroit telephoning or emailing a message that constitutes a breach. Where does the breach occur? Is an action on the breach a foreign cause of action? In a breach conveyed by mail, where does the breach occur - where it is sent or where it is received?

Two examples illustrate the problem. In Faigin v. Doubleday Dell Publishing Group,32 the Seventh Circuit Court of Appeals had to determine where the tort of defamation arises. A sports agent claimed he had been defamed by one of his former clients, a football player, in the athlete's autobiography. He sued Doubleday Dell Publishing Group in Wisconsin's federal court. If the borrowing statute were found applicable, the one-year statutes of limitations found in other relevant states might apply. Otherwise, Wisconsin's two-year statute of limitations would permit the case to be brought. The court had to determine if the cause of action was foreign.

The plaintiff lived in California; Doubleday is a Delaware corporation with its principal place of business in New York. (Two other defendants, the football player and his cowriter, both from New York, had been dismissed previously for lack of personal jurisdiction.) Both California and New York have one-year statutes of limitation for defamation. The district court found that the plaintiff had received injury in Wisconsin; at least 41 copies of the book had been sold there and the sports agent conducted some business there; thus, his reputation in the state had been harmed. But the district court had noted that most of the harm occurred outside Wisconsin; of all books sold, "less than two-tenths of one percent were sold to Wisconsin's bookstores.... [T]he district court concluded that when the plaintiff's injury has occurred in more than one state, it amounts to a 'foreign' cause of action governed by Wisconsin's borrowing statute, notwithstanding the fact that Wisconsin is one of the states in which injury occurred."33 The district court therefore had applied the borrowing statute and dismissed the action as untimely filed.

The Seventh Circuit disagreed. The borrowing statute "asks one question: did the injury occur inside Wisconsin? The answer here is yes, if not exclusively." That makes the borrowing statute inapplicable and Wisconsin's statute of limitations applicable. The dissenting judge noted that the plaintiff was clearly engaging in forum shopping in this case; the majority agreed. Nevertheless, the court noted that forum shopping was "nothing new" in libel cases. Furthermore, Wisconsin could legislatively shorten its two-year statute of limitations if it so chose.34

Contract cases can present the same interpretive difficulties. In Ristow v. Threadneedle Insurance Company,35 the Wisconsin Court of Appeals was called upon to determine where the last suable event took place in a contract dispute. A Wisconsin resident was injured in South Carolina. He settled with a South Carolina insurer for $75,000 but never received the settlement check. In determining whether or not the borrowing statute applied, the court had two choices. Did the cause of action arise in South Carolina when the insurance company failed to send the check, or did it arise in Wisconsin when Ristow failed to receive the check? The court chose the former, relying in part upon the wording of the complaint itself, which read: Defendants "breached the oral contract ... by failing to forward a check to the" plaintiff.36 One wonders whether the result would have been the same had the plaintiff alleged that "Plaintiff failed to receive payment, constituting a breach of the oral contract."

Conclusion

Under section 893.07, courts have determined that a tort cause of action is foreign if the injury takes place outside of Wisconsin. A contract cause of action is foreign if the final significant event that gives rise to a suable claim, generally the breach, occurs outside of Wisconsin. Courts also have determined that when they borrow a foreign statute of limitation, they do not borrow the foreign statute of repose or tolling statute.

Although the courts' interpretation of section 893.07 cannot provide clear and certain resolution in all cases, it significantly facilitates early resolution in the majority of cases in which a place of injury (for tort) or breach of contract can be accurately located. If one values certainty, predictability, and efficiency, section 893.07 as interpreted marks a substantial improvement over Wisconsin courts' past choice of law analysis. If one values rationality, it falls short on occasion, though it demonstrates a marked improvement over the parochial application of forum law. Courts appear to be quite comfortable with the choice the Legislature has made to favor certainty and efficiency over rationality and therefore not to treat statutes of limitation as substantive and subject to choice of law analysis. Their decisions over the past 20 years have clarified the law and provided needed guidance to practitioners.

Endnotes

1 Unif. Confl. of Laws-Limitations Act § 2, 12 ULA 158 (1996).

2 For a thorough discussion of Wisconsin's choice of law development, see Shirley A. Wiegand, Officious Intermeddling, Interloping Chauvinism, Restatement (Second), and Leflar: Wisconsin's Choice of Law Melting Pot, 81 Marq. L. Rev. 761 (1998).

3 Wisconsin Statutes section 893.205 provided that "no action to recover damages for injuries to the person, received without this state," could be brought in a Wisconsin court if the limitations statute of the state in which the injury occurred had expired, "unless the person so injured shall, at the time of such injury, have been a resident of this state. Wis. Stat. § 893.205(1)(1977), repealed by 1979 Wis. Chap. 323.

4 Wis. Stat. § 893.07.

5 Guertin v. Harbour Assur. Co., 141 Wis. 2d 622, 631-32, 415 N.W.2d 831 (1987).

6 735 Ill. Comp. Stat. 5/13-202 (2000).

7 Office Supply Co. v. Basic/Four Corp., 538 F. Supp. 776 (E.D. Wis. 1982).

8 See Wiegand, supra note 2, for a discussion of Wisconsin's choice of law analysis.

9 Erie R. Co. v. Tompkins, 304 U.S. 64 (1928); Klaxon v. Stentor Mfg. Co., 313 U.S. 487 (1941); McMahon v. Pennsylvania Life Ins. Co., 891 F.2d 1251 (7th Cir. 1989).

10 Johnson v. Deltadynamics Inc., 813 F.2d 944 (7th Cir. 1987).

11 Beard v. J.I. Case Co., 823 F.2d 1095 (7th Cir. 1987).

12 Guertin v. Harbour Assurance Co.,141 Wis. 2d 622, 415 N.W.2d 831 (1987).

13 "All people are borne equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."

14 Guertin, 141 Wis. 2d at 634-35, 415 N.W.2d at 835-36.

15 Terranova v. Terranova, 883 F. Supp. 1273 (W.D. Wis. 1995).

16 Id. at 1277.

17 Abraham v. General Casualty Co., 217 Wis. 2d 294, 576 N.W.2d 46 (1998).

18 Id. at 297-98, 576 N.W.2d at 48.

19 Id. at 304, 576 N.W.2d at 51.

20 Id. at 311 n.7, 576 N.W.2d at 54 n.7.

21 Beard v. J.I. Case Co., 823 F.2d 1095, 1097 n.1 (7th Cir. 1987) (emphasis added).

22 Id. at 1095.

23 See United States Fire Ins. Co. v. E.D. Wesley Co., 105 Wis. 2d 305, 313 N.W.2d 833 (1982).

24 See, e.g., Rosenthal v. Kurtz, 62 Wis. 2d 1, 213 N.W. 2d 741 (1974); Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 225 N.W.2d 454 (1975); United States Fire Ins. Co., 105 Wis. 2d at 305, 313 N.W.2d at 833. See also Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997), overruled by Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 40; 237 Wis. 2d 99, 120; 613 N.W.2d 849, 862.

25 Aicher, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849 (2000).

26 Id. at 50, 237 Wis. 2d at 125; 613 N.W.2d at 864.

27 See Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d at 41, 564 N.W.2d at 662.

28 Leverence v. United States Fidelity & Co., 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990).

29 Scott v. First State Ins. Co., 155 Wis. 2d 608, 456 N.W.2d 152 (1990). See also Jarrett v. Andrews, 1999 U.S. App. LEXIS 1603 (7th Cir. 1999).

30 Scott at 615, 456 N.W.2d at 155.

31 Id. at 616-17, 456 N.W.2d at 156, citing cases from the Second, Sixth, and Ninth Circuit Courts of Appeals and from Illinois, New York, and Michigan. The court noted that "the various borrowing statutes are dissimilar." 155 Wis. 2d at 617, 456 N.W.2d at 156.

32 Faigin v. Doubleday Dell Publishing Group, 98 F.3d 268 (7th Cir. 1996).

33 Id. at 269-70.

34 Id. at 272.

35 Ristow v. Threadneedle Ins. Co., 220 Wis. 2d 644, 583 N.W.2d 452 (Ct. App. 1998).

36 Id. at 652, 583 N.W.2d at 455.

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