Application of Statute of Repose Upheld for Material Supplier Court of Appeals of Wisconsin, August 7, 2018

WISCONSIN — The plaintiff Thomas Mohn alleged that he developed lung cancer from exposure to asbestos while working with insulated turbine blankets supplied by defendant Sprinkmann during the construction of the Genoa power plant in the 1960s. Sprinkman filed a motion for summary judgment on statue of repose grounds, which the trial court granted. The plaintiff appealed, and the Wisconsin Appellate Court affirmed.

Wisconsin’s statute of repose imposed a time limit of ten years for bringing claims related to the improvement of real property. The statute has specific language extending its protections to those involved in the “furnishing of materials for” the construction of the improvements, but left an exception which did not protect manufacturers or producers of defective materials used in the construction of real property improvements. Prior authority in Wisconsin stated that the statute of repose “protects all persons involved in the improvement to real property but does not protect individuals whose liability arises based on conduct occurring prior to or subsequent to the improvement.” The plaintiff argued that the statute of repose did not apply to Sprinkmann because the insulation that it supplied was defective, not its act of furnishing the insulation. In rejecting this argument, the court looked to the plain language of the statute which shielded those who simply furnished materials from long-term liabilities.

The court also considered and rejected Plaintiff’s argument that the statute of repose violated the right to remedy clause of the Wisconsin Constitution, and the equal protection clauses of the US Constitution and the Wisconsin Constitution. The plaintiff argued that application of the statute of repose took away the rights of an individual with injuries due to asbestos exposure before those injuries could manifest.  Plaintiff further argued that the statute of repose created a class of plaintiffs with asbestos-related injuries that take years to manifest, and excluded their claims. The court noted that the statute of repose was a policy choice made by the Wisconsin legislature that extinguished the right of recovery altogether at the end of the repose period, did not violate the right to remedy clause, and did not carve out an exception for latent diseases.

Read the full case decision here.

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