The Wisconsin Supreme Court recently clarified that noncompliance with the notice of claim statute is an affirmative defense and not a jurisdictional prerequisite to filing suit.1 When defending a government agency, such as a municipality or its employees, it is important to be familiar with the requirements of the notice of claim statute and how to address non-compliance with those requirements.
Requirements of Wis. Stat. § 893.80
The “notice of claim statute” refers to the requirements of Wis. Stat. § 893.80. Prior to filing suit against a government agency, a plaintiff must comply with the statutory (1) notice of injury requirement and (2) notice of claim requirement.2 Collectively, these two requirements are referred to in case law and colloquially as the “notice of claim statute.”3
The notice of injury requirement mandates that, within 120 days of the event that gives rise to the claim, a plaintiff must serve written notice of the circumstances of the claim on the governmental agency.4 While the statutory language actually uses the word “claim” rather than “injury,” “‘notice of injury’ is the label which the case law has put on this component of the statute.”5 Prior to filing suit, a plaintiff must also serve upon the governmental entity “a claim containing the address of the claimant and an itemized statement of the relief sought.” This is known as the notice of claim requirement.
These two requirements serve different government interests. The notice of injury requirement puts the governmental entity on notice of the claim and provides the opportunity to “investigate and evaluate” appropriate next steps.”6 The notice of claim requirement affords governmental entities the opportunity to either resolve the claim pre-suit or to appropriately budget and plan for litigation.7
Wis. Stat. § 893.80(1d)(a) does create an exception to these general requirements where a governmental entity has actual notice. Under the actual notice exception, a plaintiff who failed to timely file a notice of injury as required may still proceed with a suit against the governmental entity provided, the governmental entity (1) had actual notice of the claim and (2) was not prejudiced by the delay or failure to give the notice as required.8
An affirmative defense is “a defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim even if all allegations in the complaint are true.”9 “The essence of affirmative defenses is to concede that while the plaintiff may otherwise have a good cause of action, the cause of action no longer exists because some statute or rule permits defendant to avoid liability for the acts alleged.”10
Wis. Stat. §802.02(3) requires that affirmative defenses be timely asserted in a responsive pleading. While the statute lists examples of affirmative defenses including within the scope of this rule, the statute also “explicitly provides that the list is nonexhaustive.”11 Where a defendant fails to timely raise these issues in a responsive pleading, the avoidance or affirmative defense is deemed waived and may not later be raised.12 This is a statutorily defined waiver.13
In 2019, the Wisconsin Supreme Court decided Maple Grove County Club, which involved a conflict between a Sanitary District and a Country Club. While the County Club initially operated the sewer system, the town in which the facilities were located eventually assumed those duties. Thus, at the time of the suit, the Sanitary District was a governmental entity.
After the expiration of a lease agreement, a dispute arose between the parties. The County Club served the Sanitary District with a document titled “Notice of Circumstances of Claim Pursuant to Wis. Stat. § 893.80(1)(a).” Approximately three years later, the County Club filed suit against the Sanitary District. The Sanitary District answered and cross-claimed against the Country Club. In its answer to the complaint, the Sanitary District denied the County Club’s allegations that the County Club had complied with the notice of claim statute, but did not affirmatively plead that the County Club had failed to comply with the statute.14
In a motion for summary judgment, the Sanitary District argued that the Notice of Circumstances of Claim filed by the County Club was defective for two reasons: (1) it was untimely and (2) it did not contain an itemized statement of relief sought. The County Club countered that the Sanitary District had not affirmatively plead non-compliance and, accordingly, had waived the defense. The Circuit Court agreed with the Sanitary District, finding that the notice had been filed more than 120 days after the event giving rise to the claim and was incomplete.15
Hearing the case on an interlocutory appeal, the court of appeals determined that the Sanitary District did not waive its notice of claim defense by failing to plead it, although the court made that decision with significant reservations.16 The court of appeals concluded that it was bound to follow Lentz v. Young,17 which made “a broad and unqualified holding that a defendant may raise an affirmative defense by motion.”18 Accordingly, the court of appeals determined that the Sanitary District preserved its defense by raising it in a motion for summary judgment. However, the court did question whether the Lentz decision applied prior caselaw in a manner that was inconsistent with statute.
On appeal, the Supreme Court reversed the court of appeals’ decision and held that noncompliance with the notice of claim statute, which is set forth in Wis. Stat. § 893.80(1d) but is not specifically referenced as an “avoidance or affirmative defense” in Wis. Stat. § 802.02(3), “is an affirmative defense that must be set forth in a responsive pleading.19 The Court further held that where the defendant “failed to set forth the defense in its answer and has not amended its answer to include it, such a defense is deemed waived.”20 Ultimately, the Maple Grove court “explained that Lentz was wrongly decided because it allows a defendant to initially raise by motion an affirmative defense not listed in § 802.06(2).”21
Although noncompliance with the notice of claim statute is not specifically enumerated in Wis. Stat. § 802.02(3), the Wisconsin Supreme Court has now affirmatively stated that it is an affirmative defense. A governmental entity who has not raised noncompliance with the notice of claim statute will not be permitted to raise it, for the first time, by motion since it is not one of the ten defenses set forth under Wis. Stat. § 802.06.
- Maple Grove County Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43, 386 Wis.2d 425, 926 N.W.2d 184
- Wis. Stat. § 893.80(1)
- Maple Grove County Club Inc., 2019 WI 43, ¶ 27.
- Wis. Stat. § 893.80(1d)(a).
- Vanstone v. Town of Delafield, 191 Wis.2d 586, n.5, 530 N.W.2d 16 (Ct. App. 1995).
- Id.at 593.
- Elandt v. Waupaca Cty., 2020 Wisc. App. LEXIS 70, *7, 2020 WL 718283 (unpublished).
- Id., ¶ 40 (quoting Wis. Stat. § 802.02(3)).
- Brown v. Ehlert, 255 Mont. 140, 146, 841 P.2d 510 (1992)
- Wis. Stat. 802.02(3).
- Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶ 33, 325 Wis.2d 135.
- Maple Grove County Club Inc., 2019 WI 43, ¶ 14.
- Id., ¶ 17.
- Id., ¶ 18-19; citing Maple Grove County Club, Inc. v. Maple Grove Estates Sanitary Dist., 2018 Wisc. App. LEXIS 405, ¶ 1 (unpublished).
- 195 Wis.2d 457, 536 N.W.2d 451 (Ct. App. 1995).
- Maple Grove County Club Inc., 2019 WI 43, ¶ 21 (internal citations omitted).
- 2019 WI 43, ¶ 3.
- Id., ¶ 56.
- Am. Family Mut. Ins. Co. v. Bell-Johnson, 2019 Wisc. App. LEXIS 317, *13-14 (unpublished).