PREREQUISITES TO BRINGING ACTION AGAINST LOCAL AND STATE GOVERNMENTAL BODIES
By Attorney Robert A. Mich, Jr.
July, 2011
By Attorney Robert A. Mich, Jr.
July, 2011
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
In last month’s article, I addressed some of the issues associated with bidding on public projects. I’ll focus this month on some of the issues that may arise after an engineer is successfully awarded a contract on a public project. Most projects move along without any serious issues. However, in cases where there is a dispute involving a municipal governmental body that cannot be resolved informally, careful attention must be paid to the procedural requirements which are prerequisites to filing suit.
Before a lawsuit may be brought against a municipal body, Wisconsin Statutes §893.80 requires a claimant to provide written notice of the circumstances of the claim within 120 days after the event giving rise to the claim. Although failure to give the notice will not bar the claim if the municipal body had actual notice of the claim and there is no prejudice, the better practice is to file such a notice of circumstances of claim to avoid disputes over whether the municipality had actual notice. In addition, a claim containing an itemized statement of the damages or other relief sought must be presented to a clerk for the municipal body. Because the amount of damages may not be immediately known, parties will often file the itemized claim for damages after the notice of circumstances of claim. The governmental body will then have an opportunity to investigate and either pay out or disallow the claim. If the governmental body does not act on the claim within 120 days after it is presented, the claim is deemed disallowed and the claimant may then file suit. If the claim is disallowed, the claimant must bring suit no later than six months from the date of service of the notice of disallowance.
Wis. Stat. §893.80 provides other limitations on claims that can be brought against municipal governmental bodies, offices, and employees. Generally speaking, tort claims against those entities shall not exceed $50,000.00, and punitive damages are not allowed. Claims also are not permitted for acts committed by governmental officials “in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” This provision has been interpreted to mean that whenever governmental officials exercise some degree of discretion in performing their duties, they will not be held liable for those decisions. However, this does not preclude claims for failure to perform ministerial duties, which are duties expressly imposed by statute or administrative code and which do not involve exercise of discretion.
There is a separate statute, Wis. Stat. §893.82, which provides for a similar procedure when pursuing claims against state employees. This statute also requires that the claimant provide notice within 120 days of the circumstances giving rise to the claim, which must be served on the attorney general by certified mail. The limit for claims against state employees is $250,000.00. Generally speaking, the State of Wisconsin itself is immune from suit. That immunity is sometimes waived, particularly in the context of construction and other procurements.
Parties should always look first to the express terms of their contract with governmental bodies to determine how to proceed with a claim. Contractual provisions may waive or modify statutory requirements which would otherwise be required. When contracts with governmental bodies are silent on the subject, the wisest move is to make sure that the claimant is following the appropriate statutory prerequisites to bringing suit. Consultation with legal counsel is recommended where questions arise as to the appropriate procedure and requirements.
Before a lawsuit may be brought against a municipal body, Wisconsin Statutes §893.80 requires a claimant to provide written notice of the circumstances of the claim within 120 days after the event giving rise to the claim. Although failure to give the notice will not bar the claim if the municipal body had actual notice of the claim and there is no prejudice, the better practice is to file such a notice of circumstances of claim to avoid disputes over whether the municipality had actual notice. In addition, a claim containing an itemized statement of the damages or other relief sought must be presented to a clerk for the municipal body. Because the amount of damages may not be immediately known, parties will often file the itemized claim for damages after the notice of circumstances of claim. The governmental body will then have an opportunity to investigate and either pay out or disallow the claim. If the governmental body does not act on the claim within 120 days after it is presented, the claim is deemed disallowed and the claimant may then file suit. If the claim is disallowed, the claimant must bring suit no later than six months from the date of service of the notice of disallowance.
Wis. Stat. §893.80 provides other limitations on claims that can be brought against municipal governmental bodies, offices, and employees. Generally speaking, tort claims against those entities shall not exceed $50,000.00, and punitive damages are not allowed. Claims also are not permitted for acts committed by governmental officials “in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” This provision has been interpreted to mean that whenever governmental officials exercise some degree of discretion in performing their duties, they will not be held liable for those decisions. However, this does not preclude claims for failure to perform ministerial duties, which are duties expressly imposed by statute or administrative code and which do not involve exercise of discretion.
There is a separate statute, Wis. Stat. §893.82, which provides for a similar procedure when pursuing claims against state employees. This statute also requires that the claimant provide notice within 120 days of the circumstances giving rise to the claim, which must be served on the attorney general by certified mail. The limit for claims against state employees is $250,000.00. Generally speaking, the State of Wisconsin itself is immune from suit. That immunity is sometimes waived, particularly in the context of construction and other procurements.
Parties should always look first to the express terms of their contract with governmental bodies to determine how to proceed with a claim. Contractual provisions may waive or modify statutory requirements which would otherwise be required. When contracts with governmental bodies are silent on the subject, the wisest move is to make sure that the claimant is following the appropriate statutory prerequisites to bringing suit. Consultation with legal counsel is recommended where questions arise as to the appropriate procedure and requirements.