Blue Cross & Blue Shield United v. Heritage Mutual Insurance , 188 Wis. 2d 68 ( 1994 )

SUNDBY, J.

(dissenting). In this case, we hold that the Gurneys' cause of action for Mrs. Gurney's injuries is barred by § 893.54, STATS. We conclude that the period fixed for commencement of an action to recover damages for Mrs. Gurney's injuries was not extended by § 893.12, STATS., which provides:

The period fixed for the limitation for the commencement of actions, if a payment is made as . described in s. 885.285(1), shall be either the period of time remaining under the original statute of limitations or 3 years from the date of the last payment made under s. 885.285(1), whichever is greater.

The dispositive question is whether Heritage Mutual Insurance Company's payment of part of Mrs. Gurney's medical expenses is "a payment... made as described in s. 885.285(1), [Stats.]"

Section 885.285, STATS., provides in part:

Settlement and advance payment of claim for damages. (1) No admission of liability shall be inferred from the following:

(a) ... [A]ny payment made to an injured person ....

In Riley v. Doe, 152 Wis. 2d 766, 449 N.W.2d 83 (Ct. App. 1989), we held that §§ 893.12 and 885.285, STATS., should be looked at as a single act of the legislature. Id. at 770, 449 N.W.2d at 84. We said that the statutes are in pari materia and must be construed together. Id. at 771, 449 N.W.2d at 84. We noted that § 885.285(3) provides that "[a]ny settlement or advance payment under sub. (1) shall be credited against any final settlement or judgment between the parties." Id. (quoting § 885.285(3)). We also said that "[t]he legislature intended that sec. 885.285 apply to a settlement or advance payment between parties." Id.

Heritage Mutual did not dispute the Gurneys' initial claim for their medical expenses. However, Heritage may contest the Gurneys' future claims. The Gurneys may bring an action against Heritage to recover medical-expense damages. They are third-party beneficiaries of the medical expense contract between Lubrication Station, Inc. and Heritage Mutual. See Mercado v. Mitchell, 83 Wis. 2d 17, 28, 264 N.W.2d 532, 538 (1978); Holbrook v. Pitt, 643 F.2d 1261, 1270 & n.16 (7th Cir. 1981).

In Abraham v. Milwaukee Mutual Insurance Co., 115 Wis. 2d 678, 341 N.W.2d 414 (Ct. App. 1983), we held that a payment in advance or settlement of a claim for property damages extended the statute of limitations under § 893.12, STATS., for a personal injury claim if the payment was made within the three-year limitation period provided by § 893.54(1), Stats. Id. at 681, 341 N.W.2d at 416. We said: "Section 893.12 does not specify the types of payment necessary to extend the statute of limitations." Id. I see no reason why payment of medical expenses should not extend the statute of limitations under § 893.12.

The majority concludes, however, that the advance payment made by Heritage Mutual to the Gurneys for their medical expenses was not "any payment made to an injured person" because Heritage Mutual's payment of medical expenses is contractual and does not depend on the liability of its insured for Mrs. Gurney's damages. The majority reaches that conclusion because the introductory clause of § 885.285(1), STATS., provides: "No admission of liability shall be inferred from the following ...." (Emphasis added.) An issue as to Heritage Mutual's liability for the Gurneys' medical expenses could arise in at least two ways. First, Heritage Mutual may contest a claim by the Gurneys on the grounds that Mrs. Gurney's injuries were not caused by the accident. Second, because Heritage Mutual agrees only to pay the "reasonable" medical expenses of an injured person, Heritage Mutual may challenge the reasonableness of future medical expenses the Gurneys may claim. In either case, public policy favors a partial settlement or payment to an injured person without that payment being asserted as an admission of liability. I conclude that Heritage Mutual's payment to the Gurneys constitutes "any payment made to an injured person" and extends the statute of limitations under § 893.12, Stats. For these reasons I respectfully dissent.