Haferman v. St. Clare Healthcare Foundation, Inc.

DYKMAN, J.

¶ 15. (dissenting). There is one thing upon which all three judges on this panel agree: The result the majority reaches is absurd. Majority at ¶ 13. Where we differ is on what to do about it.

¶ 16. Wisconsin Courts have been declaring the meaning of statutes for some time. See Kensler v. Brunett, 1 Pin. 112, Bur. 5 (Wis. Terr. 1841) (stating that fees of justice of the peace and not all costs before the justice are embraced in statute). See also State ex *168rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 53, 271 Wis. 2d 633, 681 N.W.2d 110 (determining that the statute providing remedies for refusal to prosecute was unambiguous because the word refusal had a common and accepted meaning). Over the years, Wisconsin courts have developed various rules for ascertaining the meaning of statutes. One of these rules is that we are to search for the legislature's intent in enacting a statute. See School Directors of Pelican v. School Directors of Rock Falls, 81 Wis. 428, 51 N.W 871 (1892) (holding that when courts know the mischief the legislature intended to remedy, it is their duty to construe a statute to suppress the mischief); see also State v. Jackson, 2004 WI 29, ¶ 12, 270 Wis. 2d 113, 676 N.W.2d 872 (averring that a court's goal in interpreting a statute is to discern its legislative intent).

¶ 17. A long-standing and well-accepted corollary to the requirement that we search for legislative intent is that we apply statutes as they were written, unless to do so would lead to an absurd result that did not reflect the legislature's intent.1 State v. Carchidi, 187 Wis. 438, 443, 204 N.W 473 (1925); see also, State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309 (1993). Since the majority agrees that its result is absurd, it would seem that we all should have searched for a meaning that did not reach an absurd result. Unfortunately, the majority has not done so.

¶ 18. Were I writing for the majority, I would *169analyze Wis. Stat. §§ 893.55 and 893.56 (2001-02)2 to find all of their possible meanings. I agree with the majority that in suits against health care providers, the statute of limitations is three years from the date of injury or one year from the date the injury is discovered, with a maximum time of five years from the date of the injury. That is the unambiguous rule of § 893.55.

¶ 19. There is an exception to the rule of Wis. Stat. § 893.55 in Wis. Stat. § 893.56. The exception is that the statute of limitations for children under the age of ten is either (1) the limitation of § 893.55; or (2) the date on which they reach ten years of age, whichever is longer. I conclude that this exception is unambiguous. The legislative intent behind this exception is obvious: Children under the age of ten cannot be expected to recognize concepts of duty, breach, causation and damages that are the foundation of Wisconsin's negligence law. They should therefore be given extra time to begin suits against health care providers who injure them.

¶ 20. But there is an exception to the exception. It provides that the only children who are within the exception to the rule of Wis. Stat. § 893.55 are those who are not under disability caused by insanity, developmental disability or imprisonment. That's where the trouble starts. The majority concludes that the only interpretation of this exception is that children who are insane, developmentally disabled or imprisoned are not entitled to the ten-year statute of limitations. Instead, they must bring their negligence actions within a maximum of five years from the date of injury.

*170¶ 21. The majority doesn't explain why the legislature would choose to penalize children who fall within these three categories. The rational result would be to give those children more time to seek redress for their injuries. Having given the matter considerable thought, I cannot discover a reason why insane, developmentally disabled or imprisoned children would be required to bring their negligence suits in half the time allotted to children not under those disabilities. This interpretation assumes a punitive and irrational legislature, an explanation I do not accept.

¶ 22. But there is another way to interpret Wis. Stat. § 893.56. A rational legislature could have concluded that while most children might need a longer limitations period than adults to bring negligence lawsuits, some children might need even more time due to a disability other than age. It is irrational and absurd to conclude that the legislature intended to benefit all children except those who are insane, developmentally disabled or imprisoned. The "stitch" dropped by the legislature was to specifically provide an extended statute of limitations for those excepted in § 893.56, though it is obvious that this provision was intended. The solution from reading the two statutes I have discussed together with Wis. Stat. § 893.16 is that the legislature intended to benefit children under the three categories of disability more than other children, but that even those children must bring negligence suits by no later than their eighteenth birthday or within the limits of Wis. Stat. § 893.55, whichever is longer.

¶ 23. The problem with the majority's interpretations of the various statutes it examines is that it adopts a rigid rule which it imports from cases such as Kalal: If a statute is unambiguous, we will follow it. Period. But where the majority goes astray is by ending its *171analysis there. We have noted that "[i]f the language of the statute is clear and unambiguous, we normally apply it to the facts at hand without further analysis." Gasper v. Parbs, 2001 WI App 259 ¶ 8, 249 Wis. 2d 106, 637 N.W.2d 399 (emphasis added).

¶ 24. "However, the plain language of a statute should not be construed in a manner that leads to absurd or unreasonable results." Gasper, 249 Wis. 2d 106, ¶ 8. If a statute leads to an absurd result, "[t]he court may insert or reject words necessary or reasonably inferable." State v. Gould, 56 Wis. 2d 808, 812, 202 N.W.2d 903 (1973). Accord, Pfingsten v. Pfingsten, 164 Wis. 308, 313, 159 N.W. 21 (1916); State v. Williams, 198 Wis. 2d 516, 534, 544 N.W.2d 406 (1996); State v. Berndt, 161 Wis. 2d 116, 123, 467 N.W.2d 205 (Ct. App. 1991); State v. Cole, 2003 WI 59, ¶ 32, n.33, 262 Wis. 2d 167, 663 N.W.2d 700. "Obeisance to legislative intent is so important that we may even insert words in a statute when that is necessary to avoid conflicting provisions and an absurd result that the legislature did not intend." U.S. Bank National Assn. v. City of Milwaukee, 2003 WI App 220, ¶ 8, 267 Wis. 2d 718, 672 N.W.2d 492. That is what I would do. From the statutes examined here, I conclude that the legislature intended children who are insane, developmentally disabled or imprisoned to have until age eighteen or a later time permitted by Wis. Stat. § 893.55 to bring negligence action against health care providers.

¶ 25. I do not think it necessary to recommend that the legislature address , something it has already addressed, albeit imperfectly. The legislative intent to benefit persons under a disability is obvious; it is only the imperfect drafting of the statute that led to the result the majority chooses. Courts have remedied problems like the one before us on many occasions in *172the past, and I would do so here. Because the majority does not, I respectfully dissent.

A LOIS search for the words "absurd result" yielded 276 cases in which this term was used. An analysis of the first forty of these cases revealed that that phrase was used in the context of statutory interpretation seventeen times.

All. references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.