Question of Fact Found Regarding if Asbestos Insulation Supplied by Company Was for Improvement of Real Property as Required Under Wisconsin Statute of ReposeCourt of Appeals of Wisconsin, District One, April 28, 2015
- April 28, 2015
- Joseph J. Welter and Jason A. Botticelli
- Case Decisions,Statute of Repose,Wisconsin
In this case, the plaintiff, Robin Sorenson, filed strict product liability and negligence claims on behalf of herself and the estate of the decedent who worked as an insulator from 1955 to 1997 and died of lung cancer in 2009. One of the defendants, Building Services Industrial Sales, Inc. (BSIS), a supplier of asbestos insulation to the decedent’s employers, moved for — and was granted — summary judgment on the Wisconsin statute of repose, WIS. STAT. § 893.89(2) (2013-14). The plaintiff appealed, arguing that material issues of fact existed regarding whether BSIS was “involved in the improvement of real property” as required under the statute.
After reviewing the record, the court granted the plaintiff’s appeal, stating: “We remand this case back to the circuit court for trial on Sorenson’s claims related to the five worksites described above where Sorenson has presented evidence of repair or maintenance, potentially taking those claims outside the protection of the statute of repose. It is the jury’s province to determine what evidence to believe on the question of whether the work done at these five worksites was repair and maintenance, or was exclusively for new construction. The circuit court will then be able to reach the legal issue of whether the claims related to the work at those worksites are barred by statute of repose.”
The plaintiff also argued that the statute of repose did not apply to his strict product liability and negligence claims since the condition of airborne asbestos is not a “structural defect” under the statute. In his argument, the plaintiff cited numerous cases discussing the interplay between the safe-place statute, WIS. STAT. § 101.11, and the statute of repose, WIS. STAT. § 893.89. The court found this argument to be without merit and held: “To be sure, it is well established in our case law that WIS. STAT. § 893.89 bars safe-place claims resulting from injuries caused by structural defects, but not by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶29, 291 Wis. 2d 132, 715 N.W.2d 598(emphasis added). However, Sorenson does not raise a safe-place claim against BSIS and we are unconvinced by his argument that Mair and § 893.89’s legislative history stand for the proposition that the term ‘structural defect,’ as that term is used in Mair, is equivalent to the [§ 893.89] requirement of a ‘defect or deficiency’ in the construction of an ‘improvement to real property.’ As such, the line of cases setting forth the differences between ‘structural defects’ and ‘unsafe conditions’ is inapplicable.”