Court Holds That Litigants Must Strictly Comply With Notice of Claim Statute For Suing State Employees
In a recent decision, Sorenson v. Batchelder, 2016 WI 34, the Wisconsin Supreme Court ruled that a litigant was barred from suing a state employee because she delivered her notice of claim to the attorney general by personal service rather than certified mail, as required by Wisconsin’s notice of claim statute, Wis. Stat. § 893.82. The Court held that claimants must strictly and literally comply with the notice of claim statute. In short, the only acceptable manner of serving a notice of claim against a state employee is to send it via certified mail to the attorney general’s capitol office. No other method of service is acceptable. Failure to follow this statutory mandate bars a claim against a state employee.
The facts of this case are straightforward. Sorenson alleged she was physically injured and sustained property damage in an automobile accident with Batchelder, a state employee. Before bringing suit, Sorenson served a notice of claim on the attorney general by sending a process server to the attorney general’s office at the state capitol. An employee in the Attorney General’s office accepted service and acknowledged receipt of the notice of claim. The notice was then forwarded to the attorney general’s Main Street office, where it was processed and signed for by another state employee. This is the same practice that is followed when a notice of claim is delivered to the attorney general’s capitol office by certified mail. The State of Wisconsin denied liability, but paid Sorenson a minimal amount for her property damage claim.
Sorenson then sued Batchelder for negligence. Batchelder moved to dismiss, claiming that Sorenson improperly served the notice of claim. The circuit court denied the motion, reasoning that the notice of claim was delivered to the attorney general’s capitol address, as required by statute. The Wisconsin Court of Appeals reversed because Sorenson did not strictly comply with the notice of claim statute. The Wisconsin Supreme Court accepted review.
Wisconsin law provides that, before claimants can sue a state employee, they must, among other things, provide written notice to the attorney general within 120 days of the event giving rise to the claim. The statute specifies that this notice “shall be served upon the attorney general at his or her office in the capitol by certified mail.” The purpose of this requirement is to provide the attorney general with adequate time to investigate and compromise claims. The statute specifies that claimants must “strictly” comply with the requirements of the statute. Previous cases ruled that “substantial compliance” it is not sufficient. For instance, sending a notice of claim to the attorney general’s business address across the street from the capitol does not satisfy the statute.
The Wisconsin Supreme Court agreed with the court of appeals that Sorensen did not strictly comply with the notice of claim statute. According to the Court, strict compliance with the statute requires literal compliance. The Court rejected Sorenson’s argument that she strictly complied with the statute by providing notice in a manner that accomplished the purposes set forth in the statute. The Court stated that “substantial compliance”—i.e. fulfilling the purposes of the statute— does not equate to strict compliance. The Court further stated that it was irrelevant that the attorney general had actual notice of the claim and that the notice was processed in the same manner it would have been processed if it were served by certified mail. “Simply stated, Sorenson cannot strictly comply with the plain language of § 893.82(5) by substantially fulfilling the purposes of § 893.82 . . . .”
The Court stated that its ruling was based on the text of the statute and its legislative history. A previous version of the notice of claim statute provided that it should be liberally construed, and courts interpreting the prior statute concluded that substantial compliance was sufficient. However, when the statute was amended to its current form, the legislature specifically stated that strict compliance was required. The Court also reasoned that substantial compliance was not sufficient because allowing substantial compliance would create a new level of litigation in every case involving the notice of claim statute. According to the Court, requiring strict and literal compliance “promotes a ‘simple, orderly, and uniform way of conducting legal business.’”
Next, the Court rejected Sorenson’s argument that personal service constituted “stricter compliance” with the statute than serving notice via certified mail. Sorenson argued that personal service was better than service via certified mail and should therefore be sufficient. The Court declined to follow a federal court decision and previous state court of appeals’ decision that adopted this doctrine, stating: “holding that personal service constitutes ‘stricter compliance’ than service by certified mail would require us to override the statute’s plain language when the legislature has so clearly chosen the mode of service necessary to satisfy Wis. Stat. § 893.82(5). We decline to do so.”
Finally, the Court rejected Sorenson’s argument that following the express language of the statute would lead to an “absurd” result. “Simply because another mode of service seemingly would fulfill these stated purposes does not give rise to an absurd result. The legislature specifically chose the acceptable mode of service, Wis. Stat. § 893.82(5), and we may not second guess its choice.”
A person with a claim against a state employee must serve a notice of claim on the attorney general at his or her office in the state capitol by certified mail. No other form of service is acceptable.
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