Wenke v. Gehl Co.

Citation2004 WI 103,682 N.W.2d 405,274 Wis.2d 220
Decision Date07 July 2004
Docket NumberNo. 01-2649.,01-2649.
PartiesMartin G. WENKE and Dakota M. Wenke, a minor, by his Guardian ad Litem, Lynn R. Laufenberg, Plaintiffs-Appellants-Petitioners, v. GEHL COMPANY, a Wisconsin corporation, Defendant-Respondent.
CourtUnited States State Supreme Court of Wisconsin

For the plaintiffs-appellants-petitioners there were briefs by Lynn R. Laufenberg and Laufenberg & Hoefle, S.C., Milwaukee, and oral argument by Lynn R. Laufenberg.

For the defendant-respondent there was a brief by Francis H. LoCoco, Daniel J. LaFave and Quarles & Brady LLP, Milwaukee, and oral argument by Daniel J. LaFave.

An amicus curiae brief was filed by Colleen D. Ball, Wauwatosa, on behalf of Deere & Company.

An amicus curiae brief was filed by Mark S. Olson and Oppenheimer Wolff & Donnelly LLP, Minneapolis, MN, on behalf of Product Liability Advisory Council, Inc.

An amicus curiae brief was filed by Ralph A. Weber, Beth Ermatinger Hanan and Gass Weber Mullins LLC, Milwaukee, on behalf of Wisconsin Manufacturers and Commerce.

An amicus curiae brief was filed by Ralph A. Weber, Beth Ermatinger Hanan and Gass Weber Mullins LLC, Milwaukee, on behalf of Case LLC.

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William Gleisner, Milwaukee; David M. Skoglind and Aiken & Scoptur, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. DAVID T. PROSSER, J.

This is a review of a published decision of the court of appeals.1 The issue presented is whether Landis v. Physicians Insurance Co., 2001 WI 86, 245 Wis.2d 1, 628 N.W.2d 893, functionally overrules that part of the holding in Leverence v. United States Fidelity & Guaranty, 158 Wis.2d 64, 462 N.W.2d 218 (Ct.App.1990), that distinguishes statutes of limitation from statutes of repose in the application of Wisconsin's "borrowing statute," Wis. Stat. § 893.07.2 This question requires us to consider whether § 893.07 applies equally to foreign statutes of limitation and foreign statutes of repose.

¶ 2. Plaintiff Martin Wenke was severely injured in Iowa in September 1997 while using a baler manufactured by the Gehl Company, a Wisconsin corporation. Gehl sold the baler to another Iowa resident in 1981, and it was subsequently acquired by Wenke. An Iowa statute limiting product liability actions from being commenced more than 15 years after a product "was first purchased"3 precluded Wenke from bringing an action in Iowa to recover on his injuries. Hence, in August 1999 Wenke brought an action in Wisconsin. Gehl asserted that the statute barring the action in Iowa must be borrowed and applied under § 893.07(1) to bar the action in Wisconsin.

¶ 3. The Wisconsin borrowing statute provides that, "If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state." Wis. Stat. § 893.07(1). In light of our analysis in Landis, we conclude that the phrase "period of limitation" in § 893.07 is ambiguous and not susceptible to a plain language application. Therefore, when the court of appeals decided in Leverence that the phrase "period of limitation" was unambiguous and that it absolutely excluded a foreign statute of repose, the court's decision was objectively wrong. ¶ 4. After engaging in the required exercise in statutory interpretation, we conclude that the phrase "period of limitation" in § 893.07 pertains equally to foreign statutes of limitation and foreign statutes of repose. The legislature did not distinguish between these different types of limitation periods when enacting § 893.07. Our interpretation comports with the clear purpose and context of § 893.07, along with a proper understanding of the Judicial Council Committee Note to § 893.07. Accordingly, Wenke's action to recover damages for injuries sustained in Iowa is barred in Wisconsin and was properly dismissed by the circuit court.

I

¶ 5. The facts in this case are not in dispute. On September 12, 1997, Martin Wenke's right arm was severely injured while he was attempting to remove hay from the front end of a Gehl Model RB1450 baler. The injury occurred in Iowa, where Wenke was a resident. The baler was designed and manufactured by the Gehl Company, whose principal business operations are in West Bend, Wisconsin. The baler was first sold by Gehl to another Iowa resident in May 1981. Wenke and his minor son4 commenced this products liability and negligence action in the Circuit Court for Washington County on August 18, 1999, seeking damages related to Martin Wenke's injuries.

¶ 6. On January 28, 2000, Gehl moved for summary judgment on grounds that Iowa's statute of repose prohibited Wenke's claim. Gehl argued that Iowa's statute of repose provides that no products liability action may be commenced more than 15 years after the product at issue was purchased.5 Gehl argued that Leverence, which previously held that Wisconsin's borrowing statute has no application to a foreign state's statute of repose, was erroneously decided. The circuit court, Richard Becker, Judge, denied Gehl's summary judgment motion, concluding that Leverence controlled. Gehl unsuccessfully sought interlocutory review of that decision.

¶ 7. On June 8, 2001, Gehl filed a motion for reconsideration based upon this court's decision in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis.2d 99, 613 N.W.2d 849. Aicher upheld the constitutionality of two Wisconsin statutes of repose, and Gehl argued that the Aicher holding undercut the Leverence decision. Judge Patrick J. Faragher, who had been assigned to the case in April 2000, denied the motion. Judge Faragher opted to defer to Judge Becker's determination, noting that Leverence did not rely solely on the constitutional concerns expressed in Beard v. J.I. Case Co., 823 F.2d 1095 (7th Cir.1987), and resolved in Aicher, but rather was based on a plain language interpretation that § 893.07 applies only to statutes of limitation.

¶ 8. On July 17, 2001, Gehl renewed its motion for reconsideration of the summary judgment decision based upon this court's July 3, 2001, decision in Landis. Gehl argued that the Landis decision equated statutes of limitation with statutes of repose for some purposes, nullifying the "plain language" analysis of Leverence. After a hearing on August 6, 2001, the circuit court concluded that it must follow the holding of Landis where it conflicts with Leverence. Thereafter, the circuit court dismissed the action and Wenke appealed.

¶ 9. After submission of the parties' briefs, the court of appeals certified the action to this court. The issue certified was whether Landis functionally overruled the holding of Leverence. Sitting with six justices, this court was divided equally on whether to affirm or reverse the circuit court's judgment. Accordingly, the court vacated the order granting certification and remanded the case to the court of appeals.

¶ 10. On remand, the court of appeals affirmed the circuit court's decision to dismiss the action. It determined that Landis eliminated the distinction between statutes of limitation and statutes of repose that had been perceived in Leverence and, accordingly, concluded that Landis had functionally overruled Leverence. Wenke v. Gehl Co., 2003 WI App 189, ¶ 23, 267 Wis.2d 221, 669 N.W.2d 789. The court of appeals concluded that Landis, a decision of this court, superseded Leverence, a decision of the court of appeals, and therefore it was bound to follow Landis to the extent that it conflicted with Leverence. Id., ¶ 24, 462 N.W.2d 218.

¶ 11. The court of appeals decision noted that the legislature did not distinguish between statutes of limitation and statutes of repose. Id., ¶ 20, 462 N.W.2d 218. Therefore, the reference to a "foreign period of limitation" in § 893.07 included both statutes of limitation and statutes of repose. Wenke, 267 Wis.2d 221, ¶ 20, 669 N.W.2d 789. The court of appeals held that the circuit court was correct in concluding that it must borrow Iowa's fifteen-year period of repose, which barred Wenke's claim. Wenke, 267 Wis.2d 221, ¶ 20, 669 N.W.2d 789.6

¶ 12. Wenke then petitioned this court for review. We affirm.

II

¶ 13. By enacting Wis. Stat. § 893.07, the Wisconsin legislature limited the time within which foreign causes of action may be brought in Wisconsin courts. Section 893.07 is relatively straightforward:

Application of foreign statutes of limitation. (1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.
(2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.

¶ 14. Section 893.07 operates as a legislative choice of law, directing Wisconsin courts to apply either the limitations law of the state where the cause of action arose or Wisconsin's limitations law, whichever is shorter. Guertin v. Harbour Assurance Co. of Bermuda, 141 Wis.2d 622, 631, 415 N.W.2d 831 (1987); see also Scott v. First State Ins. Co., 155 Wis.2d 608, 613, 456 N.W.2d 152 (1990)

. In the context of tort claims, the term "foreign cause of action" refers to claims that are premised on injuries sustained outside of Wisconsin. See Faigin v. Doubleday Dell Pub. Group, Inc., 98 F.3d 268, 269 (7th Cir.1996) (applying Wisconsin law); Guertin, 141 Wis.2d at 630.

¶ 15. The issue we must address is whether § 893.07 operates differently when the applicable foreign limitation period is one of repose rather than limitation. Specifically, are foreign statutes of repose excluded from application under § 893.07, even if the foreign repose period precludes the action from ever being commenced in the...

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