Decedent’s Work Falls Outside Wisconsin’s Statute of Repose; Summary Judgment Denied U.S. District Court for the Eastern District of Wisconsin, May 11, 2017
This matter stems from a series of filings. In 2010, plaintiffs Daniel and Beverly Ahnert filed an asbestosis claim on February 25, 2010. That case was transferred to Multidistrict Litigation in the Eastern District of Pennsylvania. Two and a half years later, Beverly Ahnert, as the executrix of the estate of Danial Ahnert, filed a new complaint in the Easter District of Wisconsin alleging that Daniel Ahnert passed away as a result of an asbestos related disease. This matter deals with defendant Sprinkmann Sons, Inc. and Employers Insurance Company of Wisconsin’s Motion for summary judgment on issues not addressed in the case pending in the MDL in the Eastern District of Pennsylvania, specifically causation and punitive damages. The remaining issue related to the application of the Wisconsin Construction Statute of Repose and the Safe Place Act (CSOR).
On January 6, 2016 the Eastern District of Wisconsin denied Sprinkmann’s motion for summary judgment, finding that genuine issues of material fact preclude summary judgment on the issue of whether Wisconsin’s CSOR bars the plaintiffs’ claims. CSOR (Wis. Stat. § 893.89), limits the time in which a plaintiff may bring an action for injury resulting from improvements to real property. The purpose of the CSOR is to “provide protection from long-term liability for those involved in the improvement to real property.” The exposure period runs ten years from the date immediately following the substantial completion of the improvement (Citation omitted).
The primary issue in this matter is what constitutes an improvement. The Wisconsin Supreme Court has defined an improvement as a “permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable.” To prevail on the motion for summary judgment, then, Sprinkmann had the burden of establishing that its work was an improvement, as defined by case law. Sprinkmann attempted to classify decedent’s work of removing and installing insulation at a plant constituted an “improvement.” The court did not agree. The court found that a fact-finder could determine that removing old insulation and replacing it was simply maintenance. Depending on the type of insulation, this work could need to be repeated periodically over the years. This is a factual issue and Sprikmann has not provided sufficient facts to establish that their work is an improvement as required by CSOR. As such, Sprinkman did not meet their burden of establishing that the CSOR bars the plaintiffs’ claims as a matter of law.