Defendant’s Summary Judgment Upheld by Wisconsin Appellate Court Finding That the 10-Year Statute of Repose Barred Appellant’s Claims Court of Appeals Wisconsin, January 22, 2020

WISCONSIN – In this appellate action, Jacqueline Nooyen, the plaintiff, sought to appeal the circuit court’s decision to grant summary judgment to the defendants, Wisconsin Electric Power Company, Madison Gas and Electric Company, Wisconsin Power & Light Company, and Wisconsin Public Service Corporation.

The plantiff’s husband, the decedent, was a career pipefitter who, between 1970 and 1973, was involved in the original construction of two nuclear power plants owned by the defendants. On December 2, 2016, the decedent was diagnosed with mesothelioma as a result of his exposure to asbestos. The plaintiff and the decedent filed a lawsuit on February 17, 2017, alleging the defendants were responsible for the decedent’s mesothelioma because they violated the safe place statute, WIS. STAT. Section 101.11. The decedent passed away on July 19, 2018 and the plaintiff amended the complaint adding the decedent’s estate. In October 2018, the defendants filed a motion for summary judgment arguing that the plaintiff’s safe place claims were barred by the construction statute of repose. The circuit court granted the defendants’ motion.

On appeal, the court explained that the safe place statute “is a negligence statute that imposes a heightened duty on employers and owners of places of employment and public buildings to construct, repair, or maintain buildings safely,” while the “construction statute of repose sets forth ‘the time period during which an action for injury resulting from improvements to real property must be brought.’” The court further explained that exposure period means “the 10 years immediately following the date of substantial completion of the improvement to real property.” Sec. 893.89(1).

In analyzing the relationship between the safe place statute and the construction statute of repose, the court cited Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598 finding that “the construction statute of repose ‘bars safe place claims resulting from injuries caused by structural defects, but not by unsafe conditions associated with the structure, beginning ten years after a structure is substantially completed.’” The appellate court, in applying the 10-year limit on the plaintiff’s claims, stated that the injuries suffered by the decedent were caused by structural defects because “[a] defect is structural if it arises ‘by reason of the materials used in construction or from improper layout or construction.’” Barry v. Employers Mut. Cas. Co., 2001 WI 101, Paragraph 28, 245 Wis. 2d 560, 630 N.W.2d 517. In this case, the materials were asbestos-containing products.

The plaintiff further argued that the construction statute of repose should not be applied in this case because doing so improperly bars her claims retroactively. The court was not convinced, stating that the plain language of the construction statute of repose shows that the legislature intended the statute to apply in cases such as this one.

The appellate court also rejected the plaintiff’s final argument that the construction statue of repose barring her safe place claims is unconstitutional because it violates her constitutional right to a remedy. The appellate court, relying on Kohn v. Darlington Cmty. Sch., 2005 WI 99, Paragraph 13, 283 Wis. 2d 1, 698 N.W.2d 794, found that the Wisconsin Constitution “’confers no legal rights’ and instead ‘applies only when a prospective litigant seeks a remedy for an already existing right.’” Here, the plaintiff had no claim against the defendants until the decedent’s diagnosis, which occurred after the 10-year exposure period set forth in the construction statute of repose. Accordingly, the plaintiff possessed no right of recovery at the time she commenced the lawsuit. Therefore, the appellate court held that barring her claims did not violate her constitutional right to a remedy.

Read the case decision here.