author: ANN WALSH BRADLEY, J. DAVID T. PROSSER, J.

text:
    Kristy Haferman, Toby Haferman, Sr., Toby Haferman, Jr., a minor, by his Guardian ad Litem, and Richard H. Schulz, Plaintiffs-Respondents-Petitioners, v. St. Clare Healthcare Foundation, Inc. d/b/a St. Clare Hospital, Wisconsin Hospital Association and Wisconsin Patients Compensation Fund, Defendants, Donald W. Vangor, M.D., and Physicians Insurance Company of Wisconsin, Defendants-Appellants.
    Supreme Court

      No. 2003AP1307.

      Oral argument September 28, 2005.

      Decided December 30, 2005.

    2005 WI 171
    (Also reported in 707 N.W.2d 853.)

      For the plaintiffs-respondents-petitioners there were briefs by Jeremi K. Young and Rasansky Law

      Firm, Dallas, TX; and Richard Schulz and Schulz, Duffey & O'Brien, Milwaukee, and oral argument by Sean Duffey.

    For the defendants-appellants there was a brief by David J. Pliner and Corneille Law Group, LLC, Madison, and Michael B. Van Sicklen, Naikang Tsao and Foley & Lardner LLP, Madison, and oral argument by Naikang Tsao.

    An amicus curiae brief was filed by David E. Mc-Farlane, Sheila M. Sullivan and Bell, Gierhart & Moore, S.C., Madison, on behalf of Wisconsin Patients Compensation Fund.
    An amicus curiae brief was filed by Mitchell Hago-pian, Madison, on behalf of the Wisconsin Coalition for Advocacy.
    An amicus curiae brief was filed by Lynn R. Laufen-berg and Laufenberg & Hoefle, S.C., Milwaukee, on behalf of The Wisconsin Academy of Trial Lawyers, and there was oral argument by Lynn R. Laufenberg.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioners, Toby Haferman, Jr., and his parents ("the Hafermans"), seek review of a published court of appeals decision reversing a circuit court order that allowed Toby's medical malpractice action to proceed as timely filed. The court of appeals concluded that, even though Toby was a developmentally disabled child, the general three-year statute of limitations for medical malpractice actions applied to bar the action as untimely. It determined that other statutes of limitations applicable to children did not, by their plain language, apply to Toby's medical malpractice action.

¶ 2. We agree with the court of appeals that the text of the other statutes precludes their application. However, we disagree that the general three-year statute of limitations applies. We conclude that the legislature has not provided an applicable statute of limitations for a claim against a health care provider alleging injury to a developmentally disabled child. Therefore, Toby's action is not time-barred. We reverse the court of appeals and remand to the circuit court for further proceedings.

H

¶ 3. The Hafermans filed this action on September 4, 2002, against several defendants, including Dr. Donald Vangor, Physicians Insurance Company of Wisconsin, St. Clare Hospital, and Wisconsin Hospital Association. According to the allegations in the complaint, Toby was born on February 10, 1991, making him 11 years old at the time the complaint was filed.

¶ 4. The Hafermans alleged that, as a result of the defendants' negligence on or about the date of Toby's birth, Toby sustained a developmental disability along with other harm. According to the Hafermans, the disability from which Toby suffers is cerebral palsy, which occurred because Toby was denied oxygen to his brain during critical moments just before and after his birth.

¶ 5. St. Clare Hospital and the Wisconsin Hospital Association moved for summary judgment, arguing that Toby's action was barred by the applicable statute of limitations. Dr. Vangor and Physicians Insurance Company of Wisconsin also moved for summary judgment and asserted a statute of limitations defense.

¶ 6. The circuit court denied the motions, after briefing and oral argument. It recognized that Toby's action potentially implicated three statutes of limitations, Wis. Stat. §§893.55, 893.56, and 893.16 (2003-04). In order to put both the circuit court's decision and the court of appeals decision in context, we set forth key portions of each of the statutes.

¶ 7. Section 893.55(1) is the general statute of limitations for actions against health care providers. It includes a three-year limitation period running from the date of injury, along with a discovery rule that is limited by a five-year period of repose:

Except as provided by [subsections that are not relevant here], an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

¶ 8. Section 893.56, entitled "Health care providers; minors actions," generally provides that children must bring claims against health care providers either within the time limits prescribed by § 893.55 or by the age of 10 years, whichever is later. However, § 893.56 specifically appears to except from its purview those children who are under a developmental disability. It reads as follows:

Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

¶ 9. Section 893.16(1) is a tolling statute that may extend a limitation period, including when the person entitled to bring an action is a child. The text of § 893.16(1), however, specifically states that its provisions do not apply to a child's action against a health care provider:

Person under disability. (1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

(Emphasis added.)

¶ 10. The circuit court observed that the interplay of these three statutes created a "very difficult conundrum" as applied to Toby. It attempted to look to § 893.56 as the statute which the legislature had apparently created to govern actions by young children against health care providers, hut determined that § 893.56 could not apply to Toby because it specifically exempts minors with developmental disabilities.

¶ 11. Ultimately, the circuit court reasoned, § 893.16 must apply to Toby in order to avoid what the court viewed as an absurd result if the general three-year statute of limitations in § 893.55 were applied:

The rule of statutory construction that I think is the most appropriate in this particular situation is that we should avoid an interpretation that leads to an absurd or illogical result. And in going from the provisions of Section 893.56, if we were to resort back to § 893.55, we would achieve just that, an absurd and illogical result, because that would require a more disabled child to be controlled by a more restrictive statute of limitations, and that makes absolutely no sense whatsoever.

¶ 12. Thus, in order to avoid what it viewed as an absurd and illogical result, the circuit court felt compelled to rewrite § 893.16. Specifically, the court's construction excised from § 893.16(1) the phrase "except for actions against health care providers." It did so in order to avoid application of the general three-year statute of limitations. As the circuit court explained, application of the general statute would have resulted in Toby being subject to a shorter statute of limitations than would have applied to Toby if he were not developmentally disabled.

¶ 13. After Dr. Vangor and Physicians Insurance Company successfully sought leave to appeal, the court of appeals reversed the circuit court in a split decision. The court of appeals majority, unlike the circuit court, determined that § 893.16(1) could not apply to Toby because the plain language of the statute exempted children who sue health care providers from the statute's tolling provisions.

¶ 14. Rather, the court of appeals majority concluded, the general statute of limitations applied to Toby's action, which had been filed long past the expiration of the three-year period prescribed by § 893.55(l)(a). The court of appeals majority nonetheless recognized that the application of § 893.55 to Toby produced a "troubling" result. Specifically, it noted that "[t]he result in this case is troubling given that the legislature has, through Wis. Stat. § 893.56, provided more time for young children to file medical malpractice suits than the three years provided in Wis. Stat. § 893.55(l)(a)."

f-H HH

¶ 15. The issue we must decide is what statute of limitations applies to a claim against a health care provider alleging injury to a developmentally disabled child. This issue requires that we seek to interpret and apply §§ 893.16, 893.56, and 893.55. It presents a question of law subject to independent appellate review. Hess v. Fernandez, 2005 WI 19, ¶ 36, 278 Wis. 2d 283, 692 N.W.2d 655.

¶ 16. We begin our examination of the statutory provisions by analyzing the constructions of § 893.16 and § 893.56 that the Hafermans and the defendants, respectively, advance. After determining that those constructions cannot be supported by the plain language of the statutes, we turn to the history of the statutes, which the court has previously discussed in Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, and Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849.

¶ 17. Ultimately, we determine that Toby's action is not time-barred because the legislature has not provided an applicable statute of limitations for claims against a health care provider alleging injury to a developmentally disabled child. We note, however, that even in the absence of a statute of limitations, the common law doctrine of laches may, in appropriate cases, be a bar to such claims.

HH HH HH

¶ 18. There is no dispute that if § 893.56 or § 893.55 applies to Toby, his cause of action is time-barred. Conversely, there is no dispute that if § 893.16 applies to Toby, his cause of action was timely.

¶ 19. What is disputed is which of the three statutes of limitations applies to Toby. The Hafermans assert that the applicable statute is § 893.16. In contrast, the defendants assert that the applicable statute is § 893.56. No party advances the application of § 893.55 that the court of appeals embraced.

¶ 20. The fundamental goal of statutory interpretation is to discern the intent of the legislature. Storm, 265 Wis. 2d 169, ¶ 15. In seeking to achieve this goal, we must begin with the statutory language. Hess, 278 Wis. 2d 283, ¶ 36.

¶ 21. We examine first the Hafermans' assertion that § 893.16 applies and test that assertion in light of the plain language of the statute. Section 893.16, which may extend a limitation period for a child entitled to bring an action that accrues while the child is under the age of 18, provides as follows:

Person under disability. (1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

(Emphasis added.)

¶ 22. The Hafermans argue that § 893.16 applies to Toby as a "person under disability." They assert that Toby is under two disabilities: (1) the disability of minority, and (2) the disability of being developmentally disabled. Under the plain language of § 893.16, the Hafermans assert, Toby may bring his claim until two years after "the disability" ceases. By "the disability," the Hafermans apparently mean Toby's developmental disability because they say that a child whose only "disability" is minority is subject to § 893.56.

¶ 23. In reality, however, the Hafermans' construction of § 893.16 is not a plain language construction at all. Were we to apply § 893.16 to Toby, either under the Hafermans1 construction or some other construction, we would, at a minimum, have to rewrite the statute to do one of two things. Either we would have to write in "developmentally disabled" as an additional category of disability that is not presently included in the statutory language, or we would have to strike out the entire phrase "except for actions against health care providers" from § 893.16 so that the statute could apply to Toby based on his "disability" of minority. We would thus be rewriting the statute in a manner that appears to directly contravene the legislative intent. The plain language of the statute manifests the intent to exclude from its tolling provisions actions brought by children against health care providers.

¶ 24. We turn next to the defendants' assertion that § 893.56 is the applicable statute of limitations and examine that assertion in light of the statute's plain language. Section 893.56, entitled "Health care providers; minors actions," provides:

Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

(Emphasis added.)

¶ 25. Section 893.56 plainly and unambiguously excludes children who are "under disability by reason of. .. developmental disability." In order to apply § 893.56 to Toby, we would, at a minimum, have to strike out the words "developmental disability" from the statute. Again, we would be rewriting the statute in a manner that appears to directly contravene the legislative intent as manifest from the statute's plain language, here to exclude developmentally disabled children from the statute's reach.

¶ 26. Despite our reading of the plain language of § 893.56, the defendants maintain that § 893.56 applies to Toby, thereby barring Toby's cause of action because it was filed after he reached the age of 10. They argue that § 893.56 can be given an "alternative" construction that subjects Toby to the statute but avoids any need for the court to rewrite the statute.

¶ 27. Specifically, the defendants begin their "alternative" construction of § 893.56 with the premise that the legislature intended §§ 893.56 and 893.16 to be read in a complementary fashion. Next they assert that, under § 893.16(3), a "disability" (including minority) for purposes of § 893.16 tolling must predate the accrual of the cause of action. According to the defendants, the court therefore should not ask whether Toby had a developmental disability at the time he filed suit; instead, they assert, the court must ask whether Toby had a developmental disability at the time the cause of action accrued. Because he did not, the defendants argue, the exclusionary phrase in § 893.56 "drops out," and the 10-year repose period in § 893.56 applies.

¶ 28. At oral argument, the defendants further developed their "alternative" construction. They asserted that the phrase "who is not under disability by reason of insanity, developmental disability or imprisonment" in § 893.56 was merely a "placeholder" for the legislature. According to the defendants, this was the legislature's "inartful" way of showing that a minor with some other disability may be able to receive additional tolling under § 893.16, but only if the other disability predated the accrual of the child's cause of action.

¶ 29. The defendants asserted at oral argument that their construction "does no violence" to the statutes. In truth, however, it requires the court to rewrite both § 893.16 and § 893.56.

¶ 30. First, the defendants' "alternative" construction would require the court to write the phrase "at the time his or her cause of action accrued" into § 893.56. Under the defendants' construction, § 893.56 would actually read as follows:

Any person under the age of 18, who is not under disability by reason of'insanity, developmental disability or imprisonment at the time his or her cause of action accrued, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later....

Second, the defendants' construction would require the court to write in "developmentally disabled" as a disability that is generally eligible for tolling under § 893.16. According to the defendants, § 893.16(1) should actually provide as follows:

If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill or developmentally disabled, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

¶ 31. Thus, the defendants' proffered "alternative" construction of § 893.56 requires us to rewrite not only § 893.56 but also § 893.16. Just as we have rejected the Hafermans' assertion that § 893.16 applies to Toby by its plain language, we also reject the defendants' assertion that § 893.56 can be applied to Toby without rewriting the statutes. In short, neither the Hafermans' construction of § 893.16 nor the defendants' construction of § 893.56 passes muster under the plain language of the statutes.

¶ 32. We recognize, of course, as do the parties, that the legislature intended for §§ 893.16 and 893.56 to work together. See Storm, 265 Wis. 2d 169, ¶ 26 ("[l]anguage in § 893.16 and in § 893.56 . . . strongly indicates that they are meant to apply in tandem"); id., ¶ 30 ("the exception for minors in § 893.16(1) creates symmetry between these two statutes").

¶ 33. Unfortunately, however, reading the statutes together does not supply a plain-language answer to the question of whether the legislature intended for either § 893.16 or § 893.56 to apply in a case such as this one. In Aicher, the court previously noted the apparent gap with which we are now faced: "Aicher correctly reads Wis. Stat. § 893.56 to exclude the developmentally disabled, and she also correctly notes that Wis. Stat. § 893.16 does not provide the developmentally disabled with an extension for filing medical malpractice actions." Aicher, 237 Wis. 2d 99, ¶ 73.

¶ 34. This gap was also recognized in Zielke v. Wausau Memorial Hospital, 529 F. Supp. 571 (W.D. Wis. 1982), the case on which the circuit court relied. In Zielke, a federal district court observed that "[t]he interplay of these two statutes is somewhat abstruse because 'developmental disability' is not one of the disabilities covered under [the statute that is now § 893.16] . . . ." Zielke, 529 F. Supp. at 577.

¶ 35. The problem created by this gap as identified in Aicher and Zielke is that the court is left without any clear guidance in the language of the statutes as to what the legislature intended with regard to the limitation period for claims against health care providers alleging injury to developmentally disabled children. In an attempt to discern the legislative intent, we must delve deeper into the history of the statutes as discussed in Storm and Aicher.

¶ 36. Before 1977, there was no statute like § 893.56. However, a predecessor statute to § 893.16(1), Wis. Stat. § 893.33, did exist prior to 1977. It provided tolling for all children in most types of actions, including actions against health care providers, until the age of majority plus one year.

¶ 37. Then, in 1977, the legislature simultaneously amended § 893.33 (now § 893.16(1)) and created Wis. Stat. § 893.235 (now § 893.56). See ch. 390, Laws of 1977. As amended, § 893.33 excluded tolling for actions against health care providers brought by children:

893.33 Persons under disability. Ifapersonentitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof be, at the time the cause of action accrued, either
(1) Within the age of 18 years, except for actions against health care providers; or
(2) Insane; or
(3) Imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than his natural life, the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases.

(Emphasis added.)

¶ 38. As this court observed in Aicher, the bill that led to the creation of § 893.56 (then § 893.235) "tracked precisely" the language of § 893.33 in that the bill referred to insanity and imprisonment but made no reference to "developmental disability." Aicher, 237 Wis. 2d 99, ¶ 73 n.19. However, the Senate inserted a handwritten floor amendment that added the phrase "developmental disability" before the final bill was enrolled. See id.; ch. 390, Laws of 1977, Legislative drafting file.

¶ 39. The act that simultaneously created § 893.56 (then § 893.235) and amended § 893.16(1) (then § 893.33), is a one-page act. It was entitled "AN ACT to amend 893.33(1); and to create 893.235 of the statutes, relating to time limitations on actions against health care providers brought by or on behalf of minors."

¶ 40. Five legislative findings accompanied the act:

(a) The number of suits and claims for damages arising from professional patient care has increased tremendously in the past several years and the size of judgments and settlements in connection therewith has increased even more substantially, especially in the case of minors.
(b) The effect of the increasing frequency of judgment and settlements and the increasing size of these judgments and settlements, particularly in the case of minors, has been to cause the insurance industry uniformly and substantially to increase the reserves it has established to provide for potential liability arising from suits by and on behalf of minors.
(c) These increased reserves have resulted in increased insurance costs which have been passed on to health care providers in the form of higher premiums and to patients in the form of higher charges for health care services and facilities.
(d) That the interests of minor children can be adequately and fully protected by adopting the same time limit for bringing actions as applies to adults, except in the case of very young children.
(e) That the interests of very young minor children can be adequately and fully protected by extending the time limits in which actions may be brought to age 10.

(Emphasis added.)

¶ 41. What is most noteworthy about the act's title and the legislative findings is that they do not indicate any intent to provide a shorter statute of limitations for children who are developmentally disabled than for those who are not developmentally disabled. At the same time, the findings indicate that the legislature viewed the act as first limiting the overall applicable time period for medical malpractice actions by children, but then "extending" these newly-created time limits for "very young children."

¶ 42. This court has previously summarized much of this history in Storm:

The legislature has indicated an express intent to curtail the application of § 893.16 to medical malpractice actions with respect to minors. Section 893.16 excludes children under the age of 18 that are bringing actions against health care providers from the tolling provisions of the statute. See Wis. Stat. § 893.16(1). The reason for this exclusion is that there is a specific statute for medical malpractice actions by minors[,] Wis. Stat. § 893.56.... The exception for claims by minors against health care providers was added when § 893.56 [then § 893.235] was created. See Ch. 390, Laws of 1977.

Storm, 265 Wis. 2d 169, ¶ 30 (footnotes omitted).

¶ 43. In light of this history, we return to the issue of what statute of limitations the legislature intended to apply to a claim against a health care provider alleging injury to a developmentally disabled child. As our citations above to Aicher and Storm indicate, this court has previously addressed the legislative intent behind §§ 893.56 and 893.16.

¶ 44. In Aicher, we concluded that the correct interpretation of § 893.56 reveals that the developmentally disabled are excluded from the statute. After reviewing the text of the statute and tracing the legislative history, the Aicher court stated:

Wisconsin Stat. § 893.56 has remained unchanged from July 1, 1980, until the present. It provides in part that, "Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action . .. within the time limitations under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later."

Aicher, 237 Wis. 2d 99, ¶ 71 (emphasis in original).

¶ 45. Relying on the text of the statute and its legislative history, we concluded: "Aicher correctly reads Wis. Stat. § 893.56 to exclude the developmentally disabled . . . ." Id., ¶ 73 (emphasis added).

¶ 46. Shortly after Aicher, we again had an opportunity to interpret § 893.56, this time in the context of examining the exception for the disability of "insanity" (mental illness). Our interpretation remained the same. We concluded that "the statute specifically exempts minors suffering under a disability by reason of mental illness ...." Storm, 265 Wis. 2d 169, ¶ 32 (emphasis added).

¶ 47. Now, the defendants would have us change our interpretation. They would have us conclude that we were in error in Aicher when we determined that the developmentally disabled are excepted from § 893.56. Likewise, they would have us retract our interpretation in Storm where we concluded that those suffering from mental illness are exempted from § 893.56.

¶ 48. We see no good reason to confess error in Aicher or retract our interpretation in Storm. The plain language of § 893.56, together with its legislative history, dictated our interpretation of the statute in Aicher and Storm, and the plain language and legislative history dictate the same interpretation today. Those who are disabled by developmental disabilities or mental illness are not covered by the limitation set forth in § 893.56 because they are, and were intended to be, specifically exempted from that statute.

¶ 49. The court also interpreted § 893.16 in both Aicher and Storm. We determined in Aicher that "Wis. Stat. § 893.16 does not provide the developmentally disabled with an extension for filing medical malpractice actions." Aicher, 237 Wis. 2d 99, ¶ 73. Then, in Storm, we determined as follows:

The legislature has indicated an express intent to curtail the application of § 893.16 to medical malpractice actions with respect to minors. Section 893.16 excludes children under the age of 18 that are bringing actions against health care providers from the tolling provisions of the statute.

Storm, 265 Wis. 2d 169 (emphasis added).

¶ 50. The Hafermans, however, would now have the court change our interpretation of § 893.16. They would have us conclude that we were mistaken in Aicher when we determined that § 893.16 does not apply to the developmentally disabled. Further, they would have us overrule our determination in Storm that § 893.16 does not apply to children under the age of 18 bringing actions against health care providers.

¶ 51. Just as we see no reason to confess error in Aicher or retract our interpretation in Storm with respect to § 893.56, we see no reason to think we were mistaken in Aicher or to overrule our determination in Storm with respect to § 893.16. Neither those who are under the age of 18 nor the developmentally disabled are covered by the tolling provisions set forth in § 893.16.

¶ 52. Accordingly, we decline to rewrite either § 893.16 or § 893.56. We determine that by the plain language of the statutes and their legislative history, neither § 893.16 nor § 893.56 applies to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider.

¶ 53. The court of appeals majority avoided rewriting the statutes because it concluded that the general three-year statute of limitations, § 893.55, must apply to Toby in the absence of another applicable statute of limitations. We note that no party advances this conclusion by the court of appeals majority. Even the court of appeals majority acknowledged that its conclusion was "troubling."

¶ 54. We disagree with the conclusion of the court of appeals majority that § 893.55 is applicable here. The legislature could not have intended that developmentally disabled children bringing actions against health care providers would be subject to a shorter statute of limitations than would other children bringing medical malpractice actions.

¶ 55. This court has already observed that the exclusion of developmentally disabled children from both § 893.16 and § 893.56 was likely intended to give such children more time rather than less time:

We suspect that this discrepancy is the result of oversight rather than purposeful discrimination. It is likely that the legislature's intent was to extend the period of filing for persons with developmental disabilities, not reduce it.

Aicher, 237 Wis. 2d 99, ¶ 73.

¶ 56. Thus, much like the court of appeals dissent and the circuit court, we determine that the application of § 893.55 to claims against health care providers alleging injury to a developmentally disabled child would work an absurd and illogical result that the legislature could not have intended. We follow the "fundamental rule of statutory construction that any result that is absurd or unreasonable must be avoided." Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997); accord Hamilton v. Hamilton, 2003 WI 50, ¶ 39, 261 Wis. 2d 458, 661 N.W.2d 832; State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987).

¶ 57. We are compelled to determine, based on this rule, that § 893.55 does not apply to claims against health care providers alleging injury to a developmentally disabled child. Cf. South Milwaukee Sav. Bank v. Barczak, 229 Wis. 2d 521, 535, 600 N.W.2d 205 (Ct. App. 1999) (quoting Saunders v. DEC Int'l, Inc., 85 Wis. 2d 70, 74, 270 N.W.2d 176 (1978)) ("Reviewing courts must interpret statutes of limitations so that 'no person's cause of action will be barred unless clearly mandated by the legislature.' ").

¶ 58. Accordingly, we further determine that the legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. This determination is the only determination the court is able to reach without either rewriting the statutes or working an absurd and illogical result.

¶ 59. We cannot act in the legislature's stead. The gap in the statutes of limitations was previously brought to the attention of the legislature in Zielke, 529 F. Supp 571, and again in Aicher. We once again bring to the attention of the legislature this gap in the statutory scheme.

¶ 60. As a final note, we observe that, even in the absence of legislative action, the affirmative defense of laches remains available in an appropriate case. The court has stated the elements for laches as follows:

For laches to arise, there must be unreasonable delay, lack of knowledge on the part of the party asserting the defense that the other party would assert the right on which he bases his suit, and prejudice to the party asserting the defense in the event that the suit is maintained.

Watkins v. Milwaukee County Civil Serv. Comm'n, 88 Wis. 2d 411, 422, 276 N.W.2d 775 (1979). More recently, the court of appeals stated the elements similarly:

For laches to bar a claim, an unreasonable delay must occur, the plaintiff must know the facts and take no action, the defendant must not know the plaintiff would assert the right on which the suit is based, and prejudice to the defendant must occur.

Policemen's Annuity & Benefit Fund v. City of Milwaukee, 2001 WI App 144, ¶ 20, 246 Wis. 2d 196, 630 N.W.2d 236 (quoting Jensen v. Janesville Sand & Gravel Co., 141 Wis. 2d 521, 529, 415 N.W.2d 559 (Ct. App. 1987)).

IV

¶ 61. In sum, we conclude that the legislature has not provided a statute of limitations for a claim against a health care provider alleging injury to a developmentally disabled child. Therefore, Toby's action is not time-barred. We reverse the court of appeals and remand to the circuit court for further proceedings consistent with this opinion.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

DAVID T. PROSSER, J.

¶ 62. (dissenting). The issue presented in this case is what statute of limitations applies to a developmentally disabled person under the age of 18 who brings an action against a health care provider alleging that the provider's acts or omissions caused the person's developmental disability. The majority concludes that the legislature failed to set out an applicable statute of limitations for this situation. I conclude that a developmentally disabled person must bring his or her action within one of the time limitations under Wis. Stat. § 893.55, or by the time the person reaches the age of 10 years, whichever period is longer. Because my analysis produces a different result from the majority's analysis, I respectfully dissent.

ANALYSIS

¶ 63. This case exposes an obvious legislative mistake, which renders the legislature's blueprint for certain litigants ambiguous. Under the circumstances, this court is required to devise a response that will carry forward legislative objectives.

¶ 64. Wisconsin Stat. § 893.55(1) (2003-04) provides:

893.55 Medical malpractice; limitation of actions; limitation of damages; itemization of damages.
(1) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

¶ 65. This is the statute of limitations that governs most malpractice actions against health care providers. It embodies a three-year limitation period "from the date of the injury," or a one-year limitation period "from the date the injury was discovered" so long as the discovery date is not "more than 5 years from the date of the act or omission." Under this statute, a claimant may opt for the more favorable of the two limitation periods.

¶ 66. The legislature has created exceptions to the limitation periods in this medical malpractice statute. See, e.g., Wis. Stat. §§ 893.22, 893.55(2) and (3), and 893.56. It has also created statutes that toll these limitation periods. See, e.g., Wis. Stat. §§ 655.44(4) and 893.16(1).

¶ 67. This case involves the interplay among Wis. Stat. §§ 893.55, 893.56, and 893.16(1). Wisconsin Stat. § 893.56 creates an exception to § 893.55(1) for some medical malpractice actions by minors. It states:

893.56 Health care providers; minors actions. Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section. (Emphasis added.)

¶ 68. Wisconsin Stat. § 893.16(1), a tolling statute for persons under a "disability," affects medical malpractice actions by persons who are mentally ill. It reads:

(1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

¶ 69. The underlined language in § 893.56 would make perfect sense if it tracked the tolling provisions in § 893.16. Unfortunately, it does not. Section 893.56 uses the term "insanity," whereas § 893.16 uses the terms "mentally ill" and "mental illness." Section 893.56 includes the terms "developmental disability" and "imprisonment" but these terms do not appear in § 893.16.

¶ 70. The historical record explains the inconsistency. In 1977 Representative Tom Hanson introduced 1977 Assembly Bill 705 at the request of "The Malpractice Committee." The bill sought to create a new section, 893.235, that would read:

893.235 Health Care Providers; Minors Actions. Any person under the age of 18, who is not under disability by reason of insanity or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by, a person who is licensed, certified, registered or authorized to practice as a health care provider under state law within the time limitation under s. 893.295(1) or by the time that person reaches the age of 8 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

This proposed section was to become the predecessor of § 893.56.

¶ 71. 1977 Assembly Bill 705 also amended an existing section, § 893.33, which would thereafter read in part:

893.33 Persons under disability. If a person entitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof be, at the time the cause of action accrued, either
(1) Within the age of 18 years, except for actions against health care providers; or
(2) Insane; or
(3) Imprisoned on a criminal charge ... the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases.

Wis. Stat. § 893.33 (1977-78) (emphasis added showing new language). This section was the predecessor of § 893.16. If Assembly Bill 705 had passed exactly as introduced, the predecessors to §§ 893.16 and 893.56 would have tracked each other perfectly to create a coherent system of limitations and tolling periods.

¶ 72. The intended symmetry was short-lived, however, because of a legislative mistake that occurred on March 2, 1978. 1977 Assembly Bill 705 was introduced on April 27, 1977. It was debated and passed the Assembly on September 14, 1977, with one amendment. The Senate debated the bill on March 2, 1978. As in the Assembly, there was a heated dispute in the Senate over the age limitation in what is now § 893.56. Should it be 8, as in the original bill? Should it be 13, as provided in the amendment adopted by the Assembly? Or, should it be 10, as proposed in Senate Amendment 1? The controversy was so spirited in the Senate that a motion to refer the bill back to committee lost on a tie vote.

¶ 73. Immediately after the Senate adopted Senate Amendment 1, Senator Dale McKenna offered Senate Amendment 2, an unrelated, handwritten amendment adding "developmental disability" as a "disability" in proposed § 893.235 (now § 893.56). The amendment was adopted on a voice vote. Senator McKenna never attempted to amend then-existing § 893.33 (now § 893.16), so that the newly created section (§ 893.235) and the old statute (§ 893.33) would track each other and work together. His amendment destroyed any symmetry in the law.

¶ 74. The Assembly subsequently battled over Senate Amendment 1, ultimately concurring in it; but the Assembly either did not notice or did not act to fix the problem created by Senator McKenna's Senate Amendment 2.

¶ 75. We have no direct evidence of Senator McKenna's actual intent. He presumably intended that all minors with developmental disabilities have additional time to file their actions against health care providers. If this were his intent, he failed to effect that intent by also amending the tolling statute (§ 893.33). He could have intended simply to recognize "developmental disability" as a legal disability without thinking through the implications of his action. He could have intended to create a defect in the bill that would, when discovered, jeopardize its passage by requiring the bill to return to the Senate. He could have intended to legislate a shorter limitation period for minors with developmental disabilities than for other minors. Although this last motivation for the amendment is unlikely, the effect of the McKenna amendment was to treat part of the class of minors with developmental disabilities less favorably than all other classes of children.

¶ 76. This brings us to the issue at hand. The court of appeals concluded that the applicable statute in this case is Wis. Stat. § 893.55(1)(a). Haferman v. St. Clare Healthcare Found., 2004 WI App 206, ¶¶ 1, 13, 272 Wis. 2d 156, 689 N.W.2d 636. It noted that, "The result in this case is troubling given that the legislature has, through Wis. Stat. § 893.56, provided more time for young children to file medical malpractice suits than the three years provided in Wis. Stat. § 893.55(1)(a)." Id., ¶ 13, n.5. The dissenting judge, Charles Dykman, declared this result "absurd." Id., ¶ 15 (Dykman, J., dissenting).

¶ 77. The present majority provides a sound analysis until it reaches § 893.55:

The court of appeals majority avoided rewriting the statutes because it concluded that the general three-year statute of limitations, § 893.55, must apply to Toby [Haferman] in the absence of another applicable statute of limitations. ...
We disagree with the conclusion of the court of appeals majority that § 893.55 is applicable here. The legislature could not have intended that developmentally disabled children bringing actions against health care providers would be subject to a shorter statute of limitations than would other children bringing medical malpractice actions.

Majority op., ¶¶ 53-54.

¶ 78. "We are compelled to determine ..." the majority continues, "that § 893.55 does not apply to claims against health care providers alleging injury to a developmentally disabled child." Id., ¶ 57. "Accordingly, we further determine that the legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child." Id., ¶ 58.

¶ 79. The majority's resolution of the issue is unpersuasive and creates new problems.

¶ 80. First, it is a mistake to reject § 893.55 so quickly. Applying § 893.55(l)(a) or (b) to a developmentally disabled child for an alleged injury from medical malpractice that occurs on or after the child's seventh birthday is not discriminatory because the child will be treated exactly the same as all other minors who are not "insane." Moreover, § 893.55(2) and (3) will assist any minor in specific circumstances.

¶ 81. The only time a problem arises under § 893.55(l)(a) is when the statute is applied to a developmentally disabled child for an alleged injury from medical malpractice before the child's seventh birthday. In that situation, the developmentally disabled child is given less time to file suit than almost all other children of the same age. This result is indisputably discriminatory.

¶ 82. The statutory language that creates the "as applied" problem for young children is the phrase "developmentally disabled" in § 893.56 because that phrase excludes young developmentally disabled children from the benefits of the statute. The presumed good intentions behind the phrase cannot save it from its irrational and discriminatory effect in cases of developmentally disabled children under age seven. As applied to these children, the phrase is unconstitutional as a denial of equal protection of the law.

¶ 83. Second, the majority creates a new problem not because it wants to treat some developmentally disabled children the same as other children but because it decides to treat all developmentally disabled children more favorably than other children.

¶ 84. If a health care provider's negligence caused a child to become developmentally disabled at birth and the child brought suit eight years later, the members of this court would have no difficulty striking down the "developmentally disabled" exclusion in § 893.56 because the disparate treatment of developmentally disabled children would be obvious and correctable. We would employ the same equal protection analysis that Amy Aicher attempted to use to challenge § 893.56, although she was not developmentally disabled.

¶ 85. The majority resolves the issue here by giving Toby Haferman more time to file suit than we gave Amy Aicher. Indeed, the majority opinion gives all developmentally disabled children more favorable treatment than other children. To illustrate, when a 12-year-old is injured through medical malpractice, the child is governed by the provisions of § 893.55. When a 12-year-old developmentally disabled child is injured through medical malpractice, the child now has no statute of limitations at all.

¶ 86. In contrast, if we were to strike the phrase "developmentally disabled" in § 893.56, we would put developmentally disabled children on the same footing as other children. The legislature could grant these children more generous treatment if it enacted legislation to do so.

¶ 87. Third, by creating a special category for developmentally disabled persons under the age of 18, the court disregards the legislative finding that "the interests of very young minor children can be adequately and fully protected by extending the time limits in which actions may be brought to age 10." See Majority op., ¶ 40 (quoting 1977 A.B. 705, § 1). The court also creates a potential problem in relation to "imprisoned" minors who are injured from malpractice, inasmuch as these minors now have the same status as developmentally disabled children; that is, they are excepted from § 893.56 but are not covered in § 893.16.

¶ 88. Although it relies on the ambiguity of the statutes to reach its decision, the majority fails to provide any policy rationale why developmentally disabled children should be treated more favorably than other children. A developmentally disabled child is not expected to file suit personally. Rather, an action in behalf of such a child will be brought by the parent, guardian, or other person having custody of the child, as provided in § 893.56. The majority provides no explanation of why the parent, guardian, or other person having custody of a developmentally disabled child should not be bound by a statute of limitations in filing a medical malpractice suit.

¶ 89. Application of § 893.55 to developmentally disabled children under 7 violates equal protection of the law. But § 893.55 applies only because § 893.56 excepts minors with developmental disabilities from its purview. Therefore, the exception in § 893.56 is unconstitutional as applied. Striking this exception would eliminate the constitutional infirmity of these statutes and sidestep the bizarre conclusion that no statute of limitations applies to minors with developmental disabilities.

¶ 90. The majority authorizes suit in this case more than IIV2 years after the child's alleged injury and boasts in doing so that it has avoided rewriting the statute. Majority op., ¶ 58. This is not judicial restraint. It is not judicial restraint because it disregards completely the purpose of statutes of limitation in medical malpractice actions. Excising unconstitutional language from an obviously defective statute is the common sense solution and is no more problematic than removing a ruptured appendix from an otherwise healthy body.

¶ 91. I therefore respectfully dissent.

¶ 92. I am authorized to state that Justices JON E WILCOX and PATIENCE DRAKE ROGGENSACK join this opinion.

        See Haferman v. St. Clare Healthcare Found., 2004 WI App 206, 277 Wis. 2d 156, 689 N.W.2d 636 (reversing an order of the circuit court for Sauk County, Daniel S. George, Judge).

       The complaint also alleged a claim by Toby's parents for loss of companionship and medical expenses.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted. At times, we refer to Wis. Stat. §§ 893.55, 893.16, and 893.56 generically as statutes of limitations, even though at least some aspects of the statutes may be more properly characterized as a statute of repose or as a tolling provision.

       The circuit court relied on a federal court decision that used a similar approach in a case presenting nearly identical facts. See generally Zielke v. Wausau Mem'l Hosp., 529 F. Supp. 571 (W.D. Wis. 1982).

       The quoted language comes from the final published version of the court of appeals decision. See Haferman, 277 Wis. 2d 156, ¶ 13 n.5. Prior to publication, the court of appeals majority had initially gone further, characterizing the result as "absurd and illogical."

       The court of appeals determined that there were no facts of record establishing Toby is mentally ill, and the Hafermans are not disputing that determination in this court. We note that, for purposes of § 893.16, mental illness is defined as "a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them." Storm v. Legion Ins. Co., 2003 WI 120, ¶ 46, 265 Wis. 2d 169, 665 N.W.2d 353. The condition of mental illness under § 893.16 may overlap the concept of developmental disability, "but it is not congruent with developmental disability." Id., ¶ 48.

       Section 893.16(3) provides that "[a] disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues." The court of appeals has on at least one prior occasion given the defendants' interpretation to § 893.16(3). See Carlson v. Pepin County, 167 Wis. 2d 345, 352, 481 N.W.2d 498 (Ct. App. 1992). Here, the court of appeals relied on § 893.16(3) as interpreted in Carlson as a secondary reason why § 893.16 could not apply to Toby. We need not reach the question of § 893.16(3)'s applicability because we determine based on the statute's plain language and legislative history that § 893.16(1) cannot apply here regardless of the operation of § 893.16(3).

       The predecessor statute, Wis. Stat. § 893.33 (1975), read as follows:
      893.33 Persons under disability. If a person entitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof be, at the time the cause of action accrued, either
      (1) Within the age of 18 years; or
      (2) Insane; or
      (3) Imprisoned. .., the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases.

       The dissent focuses on the legislature's insertion of "developmental disability" into § 893.56 without any corresponding change to § 893.16. Describing this as a "legislative mistake," the dissent then attempts to "devise a response" by staging its own re-enactment of historical events. Dissent, ¶¶ 63, 70-75.
      In the end, the dissent's re-enactment of historical events is of little assistance because the statutory analysis it employs is inconsistent with our case law on statutory interpretation. See, e.g., State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶¶ 45-52, 271 Wis. 2d 633, 681 N.W.2d 110. After describing the handwritten floor amendment offered by Senator McKenna, the dissent laments: 'We have no direct evidence of Senator McKenna's actual intent." Dissent, ¶ 75. The dissent then explores several possible motivations of the senator. In focusing on the "actual intent" of one member of the senate, the dissent answers the wrong question. The question is not: what was the intent of a single legislator? Rather, the question is: what was intended by the legislature as a whole, given the language of the statutes?

       The dissent relegates Aicher v. Wisconsin Patients Compenation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, to a footnote in an attempt to downplay its significance. We note that our interpretation of the legislative intent as set forth in Aicher differs from that advanced by the dissent today. Five years ago, the court in Aicher concluded that the legislative intent was to give developmentally disabled children more time to file than that given to non-developmentally disabled children. Now, in striking out language from § 893.56, the dissent concludes that the legislative intent was to give developmentally disabled children the same time as other children. See dissent, ¶ 89.

       The application of § 893.55 to claims against health care providers alleging injury to developmentally disabled children may also be foreclosed by the equal protection clauses of the federal and state constitutions. Having determined, however, that § 893.55 does not apply here because its application would produce an absurd result that must be avoided, we need not address this constitutional question.

       The dissent attacks our conclusion as lacking in "judicial restraint." Dissent, ¶ 90. We think this odd under the circumstances for at least three reasons.

        First, the dissent reaches out and unnecessarily decides constitutional questions.
      Second, it rewrites the statutory scheme.
      Third, the dissent makes a policy choice in the legislature's stead while acknowledging that it is unclear whether this is the choice the legislature would have made. Apparently, the dissent has forgotten its recent admonition that the court is not meant to function as a "super-legislature." Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, ¶ 204, 284 Wis. 2d 573, 701 N.W.2d 440 (Prosser, J., dissenting).

       See discussion in ¶ 75, infra.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       1997 Wisconsin Act 133 amended Wis. Stat. § 893.16(1) by changing "insane" and "insanity" to "mentally ill" and "mental illness" and striking the words "imprisoned" and "imprisonment."

       Subsections (2) and (3) of the section are printed above to show the new language in context. Because these two subsections had been enacted previously, they did not appear in 1977 Assembly Bill 705. This helps to explain the legislative "mistake" described in ¶ 73, infra.

       In 2000 in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 73, 237 Wis. 2d 99, 613 N.W.2d 849, the court stated: "We suspect that this discrepancy is the result of oversight rather than purposeful discrimination. It is likely that the legislature's intent was to extend the period of filing for persons with developmental disabilities, not reduce it." If these speculative comments were correct, the McKenna amendment would represent a classic example of good intentions not being sufficient to overcome contradictory statutory language.

       The Chapter 51 mental health statutes were revised in 1976, during Senator McKenna's senate term. This legislation included the first definition of "developmental disability." See § 11, ch. 430, Laws of 1975; Wis. Stat. § 51.01(5). In 1978 the legislature was still in the process of working the term "developmental disability" into the statutes.

       This possibility is not implausible. Senator McKenna voted to reject Senate Amendment 1 (meaning that he favored age 13 over age 10 in proposed Wis. Stat. § 893.235); he voted to refer the bill back to the Committee on Judiciary and Consumer Affairs; and he voted to non-concur in 1977 Assembly Bill 705, meaning that he voted to defeat the bill. See Wis. S. Journal 1873-74 (Mar. 2, 1978).

        See Aicher, 237 Wis. 2d 99.

       The majority opinion correctly recounts the five legislative findings that accompanied ch. 390, Laws of 1977. Majority op., ¶ 40. Although the majority notes the legislative intent to limit actions by minors against health care providers, it finds "noteworthy" that these legislative findings do not "provide a shorter statute of limitations for children who are developmentally disabled[.]" Id., ¶ 42. Equally noteworthy, however, is that the findings do not provide a longer statute of limitations for developmentally disabled children. By focusing on a finding that does not exist, the majority lays the foundation upon which it disregards the overriding legislative intent at work in the late 1970s: limiting the time period in which all persons could bring medical malpractice actions.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    Edward Baumann and Elite Protection Specialists, LLC, Plaintiffs, v. Matthew F. Elliott and Security Arts Corporation, Defendants-Appellants, Cincinnati Insurance Company, Intervenor-Respondent.
    Court of Appeals

      No. 2004AP2177.

      Submitted on briefs May 16, 2005.

      Decided July 20, 2005.

    2005 WI App 186
    (Also reported in 704 N.W.2d 361.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Joseph J. Voelkner of Olsen, Kloet, Gunderson & Conway of Sheboygan.
    On behalf of the intervenor-respondent, the cause was submitted on the brief of Stephanie L. Dykeman of Litchfield Cavo of Brookfield.
    Before Anderson, EJ., Brown and Nettesheim, JJ.
   BROWN, J.

¶ 1. This case comes to us on summary judgment. The court found that an insurer had no duty to indemnify its insured or to provide him with a defense in an action for defamation of character because the policy required an "occurrence" to trigger coverage for "personal injury." The defendant claims the court should have limited its duty-to-defend analysis to the "four corners" of the plaintiffs complaint and that even if the policy does not cover the allegations in the complaint, we should read coverage into his policy because coverage limited to "accidental" defamation is illusory. We hold that a court need not confíne itself to the "four corners" of a plaintiffs complaint when deciding whether an insurance policy requires an insurer to defend the policyholder where it has already determined that the insurer has no duty to indemnify. The duty to defend exists only where coverage remains fairly debatable, and no debate remains once the court has resolved the coverage issue. We further hold that the "four corners" analysis may look to the ad damnum clause for clarification of the factual allegations where the allegations are otherwise sufficient to state a claim. Finally, we conclude that "negligent defamation" is not a contradiction in terms and Wisconsin law recognizes the possibility of recovery by a plaintiff even where the defendant does not deliberately and intentionally defame the plaintiff. For these reasons, we affirm.

¶ 2. Edward Baumann, the Chief of Police of the Village of Pewaukee, and his security firm, Elite Protection Specialists, LLC (EPS), filed a complaint on December 23, 2003, against Matthew F. Elliott and Security Arts Corporation (SAC), Elliott's competing business. The complaint also named Elliott's insurer, later identified as Cincinnati Insurance Company (Cincinnati). The complaint stated three causes of action against the defendants: (1) tortious interference with contracts and prospective contracts, (2) defamation, and (3) threats to injure or accuse of a crime.

¶ 3. The pertinent allegations in the complaint read:

JURISDICTION AND VENUE
10. [T]he acts committed by Defendant, Elliott and SAC were published in new[s] media primarily circulated in Waukesha County ....
FIRST CAUSE OF ACTION:
TORTIOUS INTERFERENCE
11. Paragraphs 1 th[r]ough 10 are hereby incorporated by reference as if set forth at length.
14. That EPS entered into contracts and had prospective contracts with various entities to provide security services for special events, including, but not limited to events such as, Summerfest and the Harley-Davidson 100th Anniversary Celebration.
15. The Defendant, Elliott interfered with the said contracts and prospective contracts, by intentionally interfering with the relationship between EPS and their prospective clients. Further, Defendant, Elliott acting as an agent for SAC intentionally interfered with the relationship between EPS and their prospective clients.
16. That the intentional interference by Elliott and SAC resulted in EPS suffering damages for unrealized revenues and profits, along with damages to its reputation and marketability in the marketplace.
SECOND CAUSE OF ACTION:
DEFAMATION
19. Paragraphs 1 th[r]ough 18 are hereby incorporated by reference as if set forth at length[.]
20. That Defendants, Elliott and SAC made false, defamatory statements to persons other than the Plaintiff, Baumann, that were not privileged, that directly and proximately harmed Baumann’s reputation, thereby deterring third parties for [sic] associating and conducting business with Baumann and EPS.
21. That Defendants, Elliott and SAC made false, defamatory statements to persons other than the Plaintiff, EPS, that were not privileged, that directly and proximately harmed EPS's reputation, thereby deterring third parties for [sic] associating and conducting business with Bau-mann and EPS.
22. That the Defendants^] false defamatory comments include, but are not limited to, allegations that Plaintiff Baumann abused his public office, as police chief of Pewaukee. That EPS and Baumann personally, were taking cash payments for rendering security services. And that, EPS and Baumann was [sic] having its employees perform their EPS duties in police issued uniforms.
THIRD CAUSE OF ACTION!;] THREATS TO INJURE OR ACCUSE OF CRIME
25. Paragraphs 1 th[r]ough 24 are hereby incorporated by reference as if set forth at length.
26. That Defendant, Elliott, maliciously threatened and accused Plaintiff, Baumann of a crime and threatened injury to Baumann's profession, intentionally and specifically for his own pecuniary advantage, contrary to Wis. Stat. § 943.30.
28. That Defendant, SAC, through its agent, Elliott, maliciously threatened and accused Plaintiff, Baumann of a crime and threatened injury to Baumann's profession, intentionally and specifically for his own pecuniary advantage, contrary to Wis. Stat. § 943.30.

¶ 4. Elliott tendered the defense of the matter to Cincinnati. Cincinnati assigned counsel to defend Elliott but did so under a reservation of rights. Cincinnati's answer to the complaint denied that its policy provided coverage, and Cincinnati subsequently moved for summary judgment.

¶ 5. The motion sought a declaration that Cincinnati had no duty to defend or indemnify Elliott. Cincinnati relied on language in its policy. Coverage E provides for coverage and a duty to defend "[i]f a claim is made or a suit is brought against any 'insured' for damages because of... 'personal injury'... arising out of an occurrence to which this coverage applies." The policy defines "personal injury" in relevant part as "injury to others arising out of libel, slander, defamation of character." It defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in . .. 'personal injury.'" Cincinnati explained that although the complaint alleges defamation, a "personal injury" which the policy covers, it did not allege an "occurrence," which is required in order to trigger personal injury coverage. Occurrences, it asserted, do not include knowing, intentional defamation, as alleged in the complaint.

¶ 6. Elliott did not contest that the complaint failed to allege an occurrence. Instead, he asserted that the coverage was illusory if an occurrence was required to trigger indemnity for personal injury. The circuit court rejected this argument. Accordingly, it granted summary judgment on behalf of Cincinnati, declaring that Cincinnati had no duty to defend the suit or to indemnify Elliott should he incur liability.

¶ 7. Elliott appeals. He first contends that the circuit court improperly relied on evidence outside of the "four corners" of the complaint when it determined that the complaint did not give rise to Cincinnati's duty to defend. He relies on Elliott v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403 (1992). The supreme court in Elliott stated that the duty to defend is "predicated on allegations in a complaint which, if proved, would give rise to recovery under the terms and conditions of the insurance policy." Id. at 320-21. This duty exists independent of the merits of the claim, so it makes no difference whether the plaintiff ultimately recovers. See id. at 321. It is the nature of the claim that controls. Kenefick v. Hitchcock, 187 Wis. 2d 218, 232, 522 N.W.2d 261 (Ct. App. 1994). Any doubts about coverage must be resolved in favor of the insured. Elliott, 169 Wis. 2d at 321. Because our focus is on the complaint, courts refer to this rule as the "four corners" analysis.

¶ 8. We review de novo whether an insurance company has a duty to defend its insured. Grube v. Daun, 173 Wis. 2d 30, 72, 496 N.W.2d 106 (Ct. App. 1992). We hold that Elliott does not control this case. The insurer in Elliott refused to provide a defense on the merits pending the outcome of the circuit court's coverage decision, despite the fact that coverage was "fairly debatable," because it unilaterally decided its policy afforded no coverage. See Elliott, 169 Wis. 2d at 317-18. Grube made clear that an insurer should not make an independent determination of this sort but rather should first submit the issue to the court. Grube, 173 Wis. 2d at 75. An insurer may raise the coverage issue in a variety of ways: (1) It may seek a declaratory judgment; (2) it may enter into an agreement with the insured to defend while retaining the right to challenge coverage; (3) similarly, it may afford a defense under a reservation of rights, as Cincinnati did in this action; (4) finally, it may seek a bifurcated trial, in which the court decides the coverage issue in a separate action from the action on the merits of the complaint. See id. at 75.

¶ 9. The insurer breaches its duty to defend if it refuses to provide a defense before the court decides the issue of coverage, Elliott, 169 Wis. 2d at 318, but the duty to defend ends once the court resolves the coverage issue in favor of the insurer. See Kenefick, 187 Wis. 2d at 235 ("[WJhere the insurer disputes coverage, its duty to defend continues only 'until the issue of coverage is resolved.'"). Although we recognized that the insurer in Kenefick initially had a duty to defend, based on the "four corners" analysis, see id. at 232, we emphasized that the duty did not continue past the point when the circuit court decided coverage, id. at 235 ("[A]n insurer may be required to furnish a free defense to its insured prior to the determination of coverage" (citation omitted.)). In Kenefick, the insurer sought a bifurcated trial so that the court could adjudicate coverage prior to the trial on liability and damages. See Kenefick, 187 Wis. 2d at 233-35. The circuit court resolved the coverage issue in favor of the insurer on summary judgment. Id. at 221-22. We held that the plaintiffs could seek recovery of the expenses they incurred in litigating the liability and damage claims "up to the time those proceedings were stayed pending resolution of the coverage issues." Id. at 222.

¶ 10. This result should not come as a surprise, given the purpose of the "four corners" analysis. We employ that test to ensure that insurers do not frustrate the expectations of their insureds by resolving the coverage issue in their own favor while coverage remains fairly debatable. See Elliott, 169 Wis. 2d at 322-23. Once the circuit court resolves the question of indemnity in the insurer's favor, however, coverage is no longer open to debate. An insurer need not defend a suit in which it has no economic interest. School Dist. of Shorewood v. Wausau Ins. Cos., 170 Wis. 2d 347, 364, 488 N.W.2d 82 (1992).

¶ 11. Here, the circuit court resolved the indemnity question in Cincinnati's favor. Based on that ruling, Cincinnati no longer had any economic interest in Baumann's suit against Elliott. The absence of a duty to defend follows from that finding.

¶ 12. Even if we assume that the circuit court should have limited its duty-to-defend analysis to the "four corners" of the complaint, it reached the correct result. Elliott concedes that the "occurrence" prerequisite to personal injury coverage purports to afford coverage only for negligent defamation. No fair reading of this complaint reveals such a claim. Rather, the allegations assert intentional, willful, malicious defamation. In setting forth its second cause of action, defamation, para. 19 of the complaint specifically incorporates the allegations related to its first cause of action, which alleges intentional interference with EPS' business relationships. Paragraph 19 is fatal to Elliott's position that the complaint does not allege intent to defame because it makes clear that the first and second causes of action arise from the same set of facts.

¶ 13. Similarly, the third cause of action reincorporates in para. 25 all of the factual allegations relating to the first two claims. This third cause of action alleges that Elliott threatened the plaintiffs' professional reputations and accused them of criminal activity "intentionally and specifically for his own pecuniary advantage." Taken together, the averments in the complaint accuse Elliott of defaming the plaintiffs, by accusing them of illegal behavior, for the specific purpose of realizing a pecuniary advantage. Indeed, we cannot see how one could interpret them to assert anything other than calculated, willful defamation of the plaintiffs.

¶ 14. The prayer for relief further bolsters our conclusion that the complaint specifically alleges wanton and willful, malicious conduct by Elliott. Paragraph D of that section prays "[flor a judgment for this Court against Defendants ... awarding Plaintiffs ... punitive damages, for the Defendants['] malicious, wanton and willful, defamation of Baumann and EPS."

¶ 15. Elliott protests that we may not consider the prayer for relief because it does not constitute a substantive part of the complaint. He cites our decision in Midway Motor Lodge of Brookfield v. Hartford Insurance Group, 226 Wis. 2d 23, 593 N.W.2d 852 (Ct. App. 1999), in support of that proposition. In Midway, we reaffirmed that "the ad damnum clause is not a substantive part of the complaint" and "is nothing more than an 'asking price.'" Id. at 35-36. In Midway, the ad damnum clause demanded "incidental and consequential damages suffered as a result of [the defendant's] negligence." Id. at 35. We held that Midway had failed to plead what actual loss or damages it suffered as a result of the defendant's negligence. Id.

¶ 16. We reject Elliott's argument. We acknowledge that the purpose of an ad damnum clause is merely to state the plaintiffs "asking price." See id. at 35-36; State Bar of Wisconsin, Wisconsin Civil Litigation Forms Manual, 2-9 (1999) ("A complaint must contain a prayer for relief, which is a demand for judgment for the relief the plaintiff seeks."). However, we know of no authority in this state that prohibits a court from considering language in the prayer for relief that clarifies allegations stated elsewhere in the complaint.

¶ 17. Midway does not definitively resolve that issue. Although the ad damnum clause in that case arguably alleged that the plaintiff had suffered incidental and consequential damages, these allegations by themselves would not have satisfied notice-pleading requirements. Compare Midway, 226 Wis. 2d at 35 (purpose of "notice pleading" to give defendant a fair idea of what the complaint is about and that some basis for recovery exists and liberal construction not a tool to supply missing and forgotten elements), with id. at 37 ("Midway failed [within the four corners of its complaint] to plead with sufficient specificity a 'loss of use of tangible property.'"). They were merely conclusory, and the rest of the complaint contained no allegations that would support the conclusion that the plaintiff had suffered incidental and consequential damages.

¶ 18. We note that our "asking price" language in Midway comports with 61A Am. Jue. 2d Pleading § 152 (2004). Section 152 explains that although (1) "[a] prayer for relief is not an allegation in a complaint which requires an answer, and is not part of the plaintiffs' cause of action," and (2) the prayer for relief does not cure an otherwise insufficient pleading, it is nonetheless a relevant portion of the pleading that "can be of value to clarify and support the pleading's allegations." Midway involved an "otherwise insufficient pleading" within the meaning of § 152. Here, by contrast, the ad damnum clause's characterization of Elliott's defamation of EPS and Baumann as "malicious, wanton and willful" is supported by factual allegations in the body of the complaint. Although the section of the complaint specifically discussing defamation did not use magic words like "wanton and willful," "malicious," "purposeful," or "intentional," we have already explained why a fair reading of the complaint as a whole warrants the conclusion that the plaintiffs accuse Elliott of intentional defamation. We hold that we may rely on the ad damnum clause to clarify the allegations set forth in the remainder of the complaint.

¶ 19. Elliott argues that even if the complaint does allege only intentional defamation, we should read the policy to cover intentional acts because otherwise the "occurrence" prerequisite to "personal injury" coverage renders coverage for defamation illusory. He contends that defamatory statements can never be accidental because "[d]efamatory statements, in and of themselves, must have an element of malice in order to be actionable." He cites to Polzin v. Helmbrecht, 54 Wis. 2d 578, 196 N.W.2d 685 (1972), presumably, relying on the following language:

[A] finding of malice by the jury obviates any conditional privilege. The finding of malice by the jury "takes the question of conditional privilege out of the case." Inasmuch as malice, either [express] or implied, is an essential element of actionable libel in Wisconsin, the instruction on a conditional privilege would never be appropriate because if there is no malice there is no cause of action, and if there is malice the privilege does not apply. Thus the question to be determined when there is a conditional privilege is really malice, and that determination was made by the jury.

Polzin, 54 Wis. 2d at 584-85 (footnotes omitted).

¶ 20. Coverage is illusory only when we cannot foresee liability in any imaginable set of circumstances. See Link v. General Cas. Co. of Wis., 185 Wis. 2d 394, 400, 518 N.W.2d 261 (Ct. App. 1994). Whether an insurance policy affords illusory coverage presents a question of law for our independent review. See Hinrichs v. American Family Mut. Ins. Co., 2001 WI App 114, ¶ 14, 244 Wis. 2d 191, 629 N.W.2d 44. Likewise, construing the policy alleged to be illusory presents a legal question that we review de novo. See Link, 185 Wis. 2d at 398 (standard of review for interpreting an insurance contract).

¶ 21. Elliott apparently reads Poizin's assertion that "if there is no malice there is no cause of action," Polzin, 54 Wis. 2d at 585, to mean (1) where there is a cause of action, there is malice and (2) where there is malice, the defendant specifically and deliberately intends to injure the plaintiff. We cannot accept the latter proposition because it ignores the relevant definitions of malice. Two types of malice exist in the context of common-law defamation actions: express (malice in fact) and implied (constructive, imputed as a matter of law). Express malice exists when a defendant publishes libelous statements "from motives of ill will, envy, spite, revenge, or any other bad or corrupt motives against the person." Id. at 587-88 & n.16. Constructive or implied malice, on the other hand, does not mean the defendant acted with ill will but rather that he or she published a defamatory statement without any lawful excuse. Williams v. Hicks Printing Co., 159 Wis. 90, 101, 150 N.W. 183 (1914). Williams states:

[I]n general, malice is an essential element of libel, but not, necessarily, malice in the sense of actual ill will and intent to injure, constructive malice, so called,— perpetration of the act without lawful excuse — is sufficient. One need not go further on the subject of malice in proving a charge of libel than to prove the publication, unless the situation is such as to fall within the field of conditional privilege, and then malice in law is circumstantially rebutted and malice in fact, or express malice, as it is otherwise called, is required.

Id. (emphasis added).

¶ 22. Williams makes clear that neither concept of malice is categorically inconsistent with the concept of an "occurrence," as defined in the Cincinnati policy. Williams states that accident and inadvertence do not afford a defense to the publisher of a defamatory statement because they "are not inconsistent with malice in law arising, as a legal result, from the perpetuation of the act of publishing." Id. Negligence is therefore consistent with the concept of implied malice. Further, Williams makes clear that in some special situations, negligence also coincides with the definition of express malice. Where the defendant asserts a conditional privilege, for example, the law expands the normal "bad or corrupt motives" definition of express malice to include negligence:

If a published article naturally tends [to have a defamatory effect], as suggested, the right to recover general damages follows as [a] matter of course, in the absence of truth as a justification or circumstances of legal excuse, this, as indicated, not including mere negligence, accident, good faith, good motives, or sense of duty, except as said, in the field of conditional privilege where something more than implied malice is required. General damages, which so follow, may be added to by exemplary damages, upon proof of that [express] malice which overcomes the protection of conditional privilege.

Id. at 101-02 (emphases added); see also Calero v. Del Chem. Corp., 68 Wis. 2d 487, 499, 228 N.W.2d 737 (1975) ("When the defendant has established a prima facie case of privilege, it ordinarily devolves upon the plaintiff to rebut this showing by proof of actual malice, want of good faith, or due care, etc." (Citations omitted; second emphasis added.)); Denny v. Mertz, 106 Wis. 2d 636, 674, 318 N.W.2d 141 (1982) (Abrahamson, J., dissenting) (noting that although defamation is in general a strict liability tort, "the application of the doctrines of 'conditional privilege' and 'abuse of privilege' means that the law of defamation in operation is not a strict liability tort but is a tort based on negligence." (Emphasis added.)).

¶ 23. The foregoing discussion demonstrates that a plaintiff may sometimes recover from a defendant even when the defendant publishes a defamatory statement by failing to exercise due care, i.e., negligently. Mere negligence usually will only justify compensatory damages (because only implied malice exists), whereas punitive damages require a showing of various types of ill will or corrupt motives that demonstrate malice in fact. Simple negligence, without more, may also satisfy the "malice in fact" requirement of express malice in special situations, e.g., where the defendant asserts a conditional privilege.

¶ 24. Because the parties agree that the Cincinnati policy purports to offer coverage for negligent defamation, we conclude that the "occurrence" requirement in the policy precludes coverage only for defamation in the following circumstances: (1) ordinary cases where the plaintiff proves express malice or (2) conditional privilege situations where the plaintiff proves express malice upon a showing of fault exceeding negligence. It does not deny coverage where a plaintiff proves that Elliott abused a qualified privilege by failing to exercise due care, nor does it deny coverage where a plaintiff can recover without showing express malice, i.e., where Elliott does not put conditional privilege at issue. Thus, we deem the policy nonillusory.

¶ 25. We affirm the circuit court's decision. Because the Wisconsin law of defamation would allow a plaintiff to recover against Elliott without proving wanton and willful, deliberate defamation, we can conceive of some circumstances in which his insurance agreement would require Cincinnati to indemnify him. The policy is therefore not illusory, and we will not read it to cover intentional acts of defamation. We determine that the plaintiffs complaint alleges only purposeful and malicious defamation, based on the allegations in the body of the complaint, alone and as clarified by the prayer for relief. Further, the court's determination that Cincinnati had no duty to indemnify Elliott provided an independent ground for its conclusion that Cincinnati has no duty to defend Baumann's action against Elliott.

By the Court. — Order affirmed.

       Although the briefs and the record represent that Bau-mann is the Chief of Police of the City of Pewaukee, we judicially notice that he is in fact the Chief of Police of the Village of Pewaukee. We therefore refer to him as the latter.

         Kenefick v. Hitchcock, 187 Wis. 2d 218, 232, 522 N.W.2d 261 (Ct. App. 1994), decisively refutes Elliott's argument that indemnity determinations necessarily must follow a trial on the merits. Kenefick specifically mentions a bifurcated trial in which the court resolves the issue of coverage prior to a trial on the merits. See id. at 233-35; cf. Grube v. Daun, 173 Wis. 2d 30, 75, 496 N.W.2d 106 (Ct. App. 1992) (insurer may seek a bifurcated trial on the issue of coverage).

       Although we need not decide the issue here, we note that some jurisdictions do look to the prayer for relief as a source of substantive allegations, even where the complaint is otherwise insufficient, when the prayer contains substantive allegations that would have been sufficient had they been properly placed elsewhere in the complaint. See Treat v. Los Angeles Gas & Elec. Corp., 213 E 263 (Cal. Ct. App. 1923) (relying solely on ad damnum clause as source of substantive allegation that deceased son contributed to his parents' support); cf. Hudson Ave. Drive-In Inc. v. M & L Amusement Corp., 223 N.Y.S.2d 344, 346-47 (N.Y. Sup. Ct. 1962) (ordering plaintiff to make more definite an allegation appearing for first time in ad damnum clause but noting that, "While the location of this allegation is not appealing artistically, misplacement is not an unduly grave defect.").

       "Express malice" used to be referred to as "actual malice," but when the United States Supreme Court decided New York

        Times Co. v. Sullivan, 376 U.S. 254 (1964), it introduced a new concept known as "actual malice." See id. at 279-80. This constitutional concept differs from "express malice," see Polzin v. Helmbrecht, 54 Wis. 2d 578, 588, 196 N.W.2d 685 (1972) (explaining the difference), although older Wisconsin cases such as Polzin sometimes use the term "actual malice" to refer to both "express malice" and the separate constitutional "actual malice" standard. For the sake of clarity, we have changed references to "actual malice" to "express malice" where the court refers to the common-law concept.