In Southport Commons, LLC v. DOT (2019AP130), the Court of Appeals District II held that claimants must file against the Department of Transportation (DOT) within three years after damage from DOT construction occurs, not after damage is discovered, according to Wis. Stat. § 88.87(2)(c).

Southport filed this lawsuit alleging damages from when DOT relocated an I-94 frontage road so that it bisected Southport’s property. DOT relocated the frontage road in 2008-09, but Southport didn’t learn of the damages until it received a survey and wetland delineation of its property 2016. Southport filed this lawsuit in 2017.

DOT argued the lawsuit was barred by § 88.87(2)(c), which allows property owners to file for damages from DOT “within three years after the alleged damage occurred.” Southport argued its lawsuit was timely because it filed within three years of discovering the damage.

Based on the plain language of the statute, the court rejected Southport’s argument that the three-year limitation period begins when damage is discovered. Other Wisconsin statutes of limitations distinguish between when damages are “discovered” and when they “occur.” Section § 88.87(2)(c) specifies the limitation begins upon occurrence, not discovery.

The court distinguished this case from Pruim v. Town of Ashford, where the court used “discovered” and “occurred” interchangeably. In that case, the discovery and occurrence happened contemporaneously, so the Pruim decision did not address the question at hand in Southport’s case.