In 2016, the Wisconsin Supreme Court barred a woman from suing a state employee whose negligence resulted in bodily injury and damages to her property. Even though the woman had done everything in her power to comply with state requirements, the court dismissed her case because she delivered her notice of claim the wrong way.
The dismissal doesn’t seem too outlandish until you realize that serving the notice the “right way” was impossible. If you’re confused, you’re not alone. So, we did a little digging, and here’s what we turned up.
A Fairly Straightforward Story
Despite the complications that would follow, the facts of the case were pretty clear-cut.
In 2010, an employee of the Wisconsin Department of Health Services was traveling for work when he set off a series of rear-end collisions that resulted in injuries to a woman and damages to her car. After the accident, the woman filed a property damage claim with the Wisconsin Attorney General to receive compensation.
The claimant followed all standard procedures for filing a claim by serving the notice upon the attorney general by personal service (hand delivery), which has long been considered the gold standard of providing notice. The state processed her claim without issue, but the claimant received minimal compensation.
The accident victim then decided to file a negligence claim against the driver, and that’s where things became complicated.
What Does the Statute Say?
According to Wisconsin law, anyone who wishes to sue a state employee must provide written notice to the attorney general before filing suit. While that is reasonable enough, the statute specifies that all claimants must “strictly” comply with the statute’s requirements—and therein lies the problem.
At the time of the case, Wisconsin Statute 893.82(5) stated that “the notice… shall be served upon the attorney general at his or her office in the capitol by certified mail.” When the driver moved to dismiss the case, he argued that the claimant did not strictly comply with the statute because she served her notice by personal service rather than by certified mail.
If that strikes you as a little nitpicky, it gets worse. By the time the injured woman filed her claim, the attorney general had stopped receiving certified mail at his office in the capitol. So, the accident victim could not have delivered notice in the strict manner specified by the statute—even if she had tried.
Nevertheless, the Wisconsin Court of Appeals dismissed the case because the claimant failed to strictly comply with the statute.
Strict vs. Substantial Compliance
Frustrated but not defeated, the injured woman brought her case to the Wisconsin Supreme Court. Unfortunately, the court offered no help.
The claimant argued that she had fulfilled the purpose of the statute since the attorney general received “actual notice” of the claim. Furthermore, the injured woman argued that personal service constituted “stricter compliance,” or more effective service than certified mail—especially since the attorney general’s office had stopped receiving mail. Had the claimant attempted to serve her notice via certified mail, the attorney general may not have received it at all.
Yet the court remained unmoved. Five of the seven justices voted to uphold the ruling that the appeals court issued and further asserted that “strict compliance requires exactly following the words of the statute.”
So, according to the court, the accident victim could not sue the driver whose negligence resulted in her injuries simply because she had not served her notice the proper way, even though no one could have literally or strictly complied with the statute.
The court did offer a kernel of sympathy, however. “The result in this case is harsh, and we are sympathetic to Sorenson’s unfortunate situation,” the court conceded, adding, “her remedy simply does not lie with us.”
The absurdity of this result blows us away. With that said, we are grateful to report that a similar fate will never again fall on other Wisconsinites, since the state legislature recently changed the statute’s wording to read: “The notice… shall be served upon the attorney general at his or her office in the capitol or at the department of justice by personal service or by certified mail.”
While this claimant may not have received the compensation she deserved, we hope she is relieved to know that no one else will experience the same frustration she did.