Funk v. Wollin Silo & Equipment, Inc., 86-2089

• Decision Date: 14 February 1989
• Docket Number: No. 86-2089,86-2089
• Citation: 435 N.W.2d 244,148 Wis.2d 59
• Parties: Wayne W. FUNK and Ruth M. Funk, Plaintiffs-Appellants, v. WOLLIN SILO & EQUIPMENT, INC. and Heritage Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 244

435 N.W.2d 244

148 Wis.2d 59

Wayne W. FUNK and Ruth M. Funk, Plaintiffs-Appellants, v. WOLLIN SILO & EQUIPMENT, INC. and Heritage Mutual Insurance Company, Defendants-Respondents.

No. 86-2089.

Supreme Court of Wisconsin.

Argued Oct. 4, 1988.

Decided Feb. 14, 1989.

David B. Feingold, argued, Michael D. O'Brien, and Feingold & Bates, Janesville, on briefs (in Court of Appeals), for plaintiffs-appellants.

Arthur P. Simpson, argued, and Snodgrass & Simpson, Milwaukee, on briefs (in Court of Appeals), for defendants-respondents.

Lawrence Bensky, Richard M. Burnham, and LaFollette & Sinykin, Madison, amicus curiae, for Wisconsin Housing and Economic Development Authority.

D.J. Weiss, and Johnson, Weis, Paulson & Priebe, S.C. Rhinelander, amicus curiae, for Wisconsin Academy of Trial Lawyers.

HEFFERNAN, Chief Justice.

This is an appeal from a judgment of the circuit court for Rock county taken on the certification of the court of appeals, which judgment dismissed the Funks' complaint alleging damages caused by the negligent construction of a silo by Wollin Silo & Equipment, Inc. (hereinafter Wollin).

The circuit court dismissed the action because it concluded that, under sec. 893.89, Stats., ¹ the period within which the action could be brought had expired. Because this court in Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454 (1975), held a somewhat similar predecessor statute unconstitutional, the court of appeals expressed doubt whether the deficiencies noted in Kallas had been sufficiently corrected and therefore certified the case to this court.

The question presented is one of law: Is sec. 893.89, Stats., unconstitutional because its classification scheme violates the equal-protection clauses of the United States Constitution and the Constitution of the State of Wisconsin? We conclude that the equal-protection clauses are violated and the statute is unconstitutional. ²

We reverse the circuit court and remand the case for further proceedings.

The agreed facts are that the Funks contracted with Wollin to build a silo on their property. It is agreed that the silo was an "improvement to real property" and was substantially completed on August 6, 1977. On April 2, 1984, almost seven years later, Wayne Funk fell and was injured. He alleges that the fall and injuries were proximately caused by the negligence of Wollin and that the silo ladder was defective when it was installed by Wollin. ³ Action was commenced against Wollin on June 17, 1986. Wollin answered, asserting that the plaintiffs' claims were barred by sec. 893.89, Stats. Summary judgment for the defendant, dismissing the plaintiffs' complaint, was entered on October 23, 1986. The file reveals only an order for judgment and judgment. No opinion of the circuit court is to be found in the record. Appeal was timely taken by the Funks. The appeal was accepted by this court on the certification of the court of appeals.

Wayne and Ruth Funk (hereinafter Funk) argue that present sec. 893.89, Stats., like its somewhat similar predecessor statute, sec. 893.155, Stats. (1965), ⁴ found to be violative of equal protection in Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454 (1975), is also unconstitutional.

The principal attack on the Kallas statute was on the basis of the violation of equal protection, because the special protection of the statute was afforded to "those persons who perform and furnish the 'design, planning, supervision of construction or construction' of improvements to real property--[but not to] other classes, such as materialmen, who are ignored by the statute, and owners and occupants, who are specifically excepted." Kallas, 66 Wis.2d at 389, 225 N.W.2d 454.

Applying the five criteria then recently restated in Dane County v. McManus, 55 Wis.2d 413, 423, 198 N.W.2d 667 (1972), which must be satisfied to sustain a legislative classification against an equal-protection attack, we concluded that classification violated the constitutions of the State of Wisconsin and of the United States. We in part relied upon the analysis of Mr. Justice Walter Schaefer in Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967). Writing for the Illinois Supreme Court, he stated, " 'If ... the objective of the statute is to require that trials of actions based upon defects in construction be held within a relatively short time after the work is completed, that objective is achieved ... in a discriminatory fashion.' " Kallas, 66 Wis.2d at 389, 225 N.W.2d 454. Skinner went on to point out that others in the construction process were not protected--materialmen and suppliers. Additionally, " 'Not only is the owner or person in control given no immunity; the statute takes away his action for indemnity against the architect or contractor.' " Kallas, at 390, 225 N.W.2d 454.

On the basis of Skinner, the Hawaiian case of Fujioka v. Kam, 55 Hawaii 7, 514 P.2d 568 (1973), and our own classification analysis, we held "that the legislative classification that gives special protection to the protected group is unreasonable." Kallas, 66 Wis.2d at 391, 225 N.W.2d 454.

We did, however, state that, "there are public policy reasons that might justify a limitations period that takes into consideration those who are engaged in the construction business." Kallas, at 391, 225 N.W.2d 454.

The legislature in 1975 attempted to revise sec. 893.155, Stats., in a manner that would meet the strictures of the Kallas equal-protection analysis. It failed in that attempt. The revised statute now appearing as sec. 893.89 suffers from substantially the same deficiencies as the earlier one.

Section 893.89 Stats., provides as follows:

893.89 Action for injury resulting from improvements to real property. No action to recover damages for any injury to property, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, land surveying, planning, supervision of construction, materials or construction of such improvement to real property, more than 6 years after the substantial completion of construction. If the injury or defect occurs or is discovered more than 5 years but less than 6 years after the substantial completion of construction, the time for bringing the action shall be extended 6 months.

The legislature in 1975, in amending sec. 893.155, Stats., made specific findings and a statement of intent as follows:

(1) Findings. The legislature finds that:

(a) Subsequent to the completion of construction, persons involved in the planning, design and construction of improvements to real estate lack control over the determination of the need for, the undertaking of and the responsibility for maintenance, and lack control over other forces, uses and intervening causes which causes stress, strain, wear and tear to the improvements and in most cases have no right or opportunity to be made aware of or to evaluate the effect of these forces on a particular improvement or to take action to overcome the effect of these forces.

(b) It is in the public interest to set a point in time following the substantial completion of the project after which no action may be brought for errors and omissions in the planning, design and construction of improvements to real estate, whether these errors and omissions have resulted or may result in injury or not. This legislation is determined to be in the public interest and in the interest of equating the rights to due process between prospective litigants in the area of planning, design and construction of improvements to real property in an equitable manner.

(2) Intent. In this act, the legislature intends that:

(a) This act shall bar any action for defects, unsafe conditions, errors and omissions in the planning, design or construction of improvements to real estate after the times limited in this act.

(b) This act shall not deprive any person of any rights or remedies such person may have against persons other than those enumerated in this act for damages to property or injury to persons resulting from defective or unsafe conditions of improvements to real estate.

(c) A cause of action, for the purposes of section 893.14 [see, now, § 893.10] of the statutes, shall be deemed to accrue as of the time of the alleged wrongful act. Laws 1975, c. 335.

Thus, under the amended statute "land surveying" and "materials" were added to the itemization of services that might be performed as improvements to real property and, hence, were protected activities. The new statute substituted the initiating time as "substantial completion of construction" in place of the words of the earlier statute, "performance or furnishing of such services." Omitted from the statute was the sentence which provided, "This limitation shall not apply to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective or unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action." Also, a grace period was provided which allows an extension of six months within which to bring an action "[i]f the injury or defect occurs or is discovered more than 5 years but less than 6 years after the substantial completion of construction."

The substantive effect of the change, insofar as classification is concerned, is merely to add surveyors and material suppliers to the protected class. Owners and occupiers of land are still in the non-protected class. This deficiency alone places the new statute within the proscription of Kallas. Although the body of the statute no longer specifically excepts owners or occupants, the attached finding (2)(b) states that any...