Work Performed by Insulation Contractor was Maintenance, Not Improvement, to Real Property; Wisconsin Statue of Repose Did Not Bar Asbestos Claims U.S. District Court for the Eastern District of Wisconsin, January 6, 2016

In a follow-up decision from yesterday’s report regarding the summary judgment granted to Foster Wheeler, Sprinkmann Sons Corporation also moved for summary judgment.  The Wisconsin federal court denied this motion.

The decedent was a steamfitter; two co-workers testified regarding their work with the decedent at various industrial facilities. They overhauled turbines and tanks, and removed/installed insulation. Sprinkmann was an insulation contractor for at least two of these facilities and moved for summary judgment based on: (1) no evidence Decedent was exposed to Sprinkmann asbestos-containing products; (2) Wisconsin’s construction statute of repose; and (3) lack of evidence regarding punitive damages.

First, regarding causation, the court provided an extensive review of the evidence presented in holding that that there was enough evidence to suggest that Sprinkmann performed work for at least two of the sites testified to by the co-workers. Second, the Wisconsin statute of repose precludes claims for injury brought more than ten years after the date of substantial completion of an improvement to property. There is an exception for claims brought due to damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property. The court found that:  “…on this record, the court cannot definitively say that Sprinkmann’s work constituted an improvement rather than repair or maintenance. Because the purpose of the statute of repose is to protect contractors who are involved in permanent improvements to real property, the statute of repose does not apply to bar Ahnert’s action.”  Third, the court found that the plaintiff created a genuine issue of material fact regarding notice of asbestos-related dangers; Sprinkmann’s owner and son died of mesothelioma by the late 1960s, Sprinkmann had access to literature identifying asbestos as a toxic substance, and Sprinkmann employees filed workmen compensation claims for asbestos diseases since 1956.  However, a ruling on this matter was premature.

Read the full decision here.


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