Ortman v. Jensen & Johnson, Inc.

• Decision Date: 04 February 1975
• Docket Number: Nos. 351 and 352,s. 351 and 352
• Citation: 66 Wis.2d 508,225 N.W.2d 635
• Parties: Karen L. ORTMAN, Individually and as special admnx. of the Estate of Marc L. Ortman, Deceased, et al., Appellants, v. JENSEN AND JOHNSON, INC., a Wisconsin Corp., Defendant, Kenneth Trulson, Respondent. Harry C. RYNNING, Individually and as special admr. of the Estate of James R. Rynning, Deceased, et al., Appellants, v. JENSEN AND JOHNSON, INC., a Wisconsin Corp., Defendant, Kenneth Trulson, Respondent.
• Court: Wisconsin Supreme Court

Page 635

225 N.W.2d 635

66 Wis.2d 508

Karen L. ORTMAN, Individually and as special admnx. of the Estate of Marc L. Ortman, Deceased, et al., Appellants, v. JENSEN AND JOHNSON, INC., a Wisconsin Corp., Defendant, Kenneth Trulson, Respondent.

Harry C. RYNNING, Individually and as special admr. of the Estate of James R. Rynning, Deceased, et al., Appellants, v. JENSEN AND JOHNSON, INC., a Wisconsin Corp., Defendant, Kenneth Trulson, Respondent.

Nos. 351 and 352.

Supreme Court of Wisconsin.

Feb. 4, 1975.

Curtis M. Kirkhuff, Madison, for appellants.

Kluwin, Dunphy, Hankin & McNulty, Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

Ortman and Rynning died on August 13, 1969. The appellant, Karen L. Ortman, is the surviving widow of Marc L. Ortman, and special administratrix of his estate. Appellant, Harry C. Rynning, is the father of James R. Rynning, and special administrator of his estate. The actions for pain and suffering of the decedents and wrongful death were originally commenced solely against the design engineers for the project, Jensen and Johnson, pursuant to the third-party action section of the Workmen's Compensation Act, sec. 102.29, Stats. By amended summons and complaint, Kenneth Trulson (hereinafter respondent) was joined as a defendant in the actions by the appellants on March 21, 1973. The respondent was an officer and director of F.P.&T. Construction Company (hereinafter F.P.&T.), general contractor for the job, and employer of the decedents.

The respondent demurred to the amended complaints, alleging that the actions against him were not commenced within the three-year statute of limitations provided by sec. 893.205(2), Stats., and in the alternative, that the amended complaints failed to state cause of action against the respondent.

By orders dated May 18, 1973, the trial court sustained the demurrers, finding that the six-year statute of limitations established in sec. 102.29, Stats., was not applicable to the instant actions. Therefore, the trial court did not consider the alternative grounds for demurrer which alleged the amended complaints failed to state a cause of action against the respondent.

The complaints allege that F.P.&T. entered into a contract with the village of Darien as general contractor for the construction of sewer and water extensions. Pursuant to the contract, the decedents and the respondent were engaged in installing a pipe in a trench in August 13, 1969. A concrete retaining wall collapsed, the trench caved in, and both Ortman and Rynning were killed. The complaints further allege that the respondent, in addition to being a co-employee, was the supervisor of the decedents at the job site.

The following issues are considered dispositive of this appeal:

1. Do appellants' amended complaints state causes of action against the respondent?

2. Are the appellants' causes of action against the respondent barred by the three-year statute of limitations, provided by sec. 893.205, Stats.?

CAUSE OF ACTION.

The complaints allege that the respondent was negligent in the following respects:

'a. In failing to install necessary shorting in the excavation of the trench prior to permitting (decedent) to go down into the trench to work.

'b. In failing to take all reasonable precautions to insure the safety of (decedent) as provided for by the rules and regulations of the Department of Industry, Labor & Human Relations.

'c. In permitting (decedent) to descend into the trench when said defendant knew or should have known in the exercise of ordinary care that said trench was unsafe because the concrete wall and sides of the trench were not properly shored.

'd. In failing to recognize that such trench constituted a dangerous place of employ by reason of the heavy concrete retaining wall which abutted the trench and which contained no shoring at the time of the accident.

'e. In failing to carry out the terms and written employment contract between the Village of Darien, Jenson & Johnson, and F.P.&T. Construction Corporation, which required shoring to be placed in excavations of the nature and type that (decedent) was working in at the time he was killed.'

We are of the opinion that the decision of the trial court should be affirmed, not for the reasons stated, but because the amended complaints fail to state causes of action.

In Kruse v. Schieve (1973), 61 Wis.2d 421, 213 N.W.2d 64, this court considered its previous decisions as they related to actions where the third party is also an officer of the employer. ¹ In Kruse this court expressed its concern that sec. 102.29, Stats., not be used to sue an officer of the employer, and thereby circumvent the immunity provided the employer under sec. 102.03(2). ² Thus, the rule was stated that when the third-party suit is brought against an officer of the employer, it must affirmatively appear that the action is brought against him in his capacity as co-employee. The acts upon which the cause of action is based must be acts of the individual in the capacity of a co-employee and they must be affirmative acts which increase the risk of injury to the employee. Allegations of mere supervisory responsibility or acts only amounting to a failure to provide a safe place of employment are not sufficient. Kruse v. Schieve, supra, page 428, 213 N.W.2d 64.

Construing the allegation of the complaints liberally, Volk v. McCormick (1969), 41 Wis.2d 654, 165 N.W.2d 185, they do not meet the requirements of Kruse v. Schieve, supra. The allegations in the present complaints state that the respondent was actually engaged in the process of installing the pipe in the ditch with the decedents when the ditch collapsed. It is further alleged that the respondent was then acting as supervisor and co-employee of the decedents. However, there is no allegation of any affirmative act of negligence by the respondent which increased the risk of injury. Kruse v. Schieve, supra, 6 Wis.2d page 428, 213 N.W.2d 64. The allegations merely state that the trench was unsafe because of improper shoring and that the respondent permitted the decedents to enter the trench knowing it was unsafe. In effect, the complaint alleges nothing more than the respondent's failure to "provide his employees with a safe place to work, i.e., safe conditions." Kruse v. Schieve, supra, page 428, 213 N.W.2d page 68.

Therefore, we conclude that the demurrers should have been sustained for the reason that the complaints fail to state causes of action. We are also of the opinion that the plaintiffs should be allowed thirty days after remand in which to further plead.

STATUTE OF LIMITATIONS.

It is alleged that at the time of the accident there was in effect a policy of insurance issued by United States Fidelity and Guaranty Company which provided coverage for injury or death caused by the negligence of the respondent personally. United States Fidelity and Guaranty Company was also F.P.& T.'s workmen's compensation carrier. On March 6, 1970, the appellants sent a notice to F.P.&T. and United States Fidelity and Guaranty Company that the actions were being commenced against Jensen and Johnson, Inc. The United States Fidelity and Guaranty Company at no time notified the appellants that, in addition to being the workmen's compensation carrier for F.P.&T., it also provided liability insurance for the acts, errors and omissions of the respondent.

The appellants contend that the present actions are governed by the provisions of sec. 102.29, Stats. That section provides, in relevant part:

'102.29 Third party liability. (1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe, his personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employe or his dependents to recover compensation. . . .

'. . .

'(4) If the insurance carrier of the employer and of the third party shall be the same, . . . the insurance carrier of the employer shall promptly notify the parties in interest and the department of that fact; . . .

'(5) If the insurance carrier of the employer and of the third party are the same . . . and the insurer fails to commence a third party action, within the 3 years allowed by s. 893.205, the 3-year statute of limitations in s. 893.205 shall not be pleaded as a bar in any action commenced by the injured employe herein against any such third party subsequent to 3 years from the date of injury, but prior to 6 years from such date of injury, provided that any recovery in such action shall be limited to the insured liability of the third party . . .. This subsection shall not apply if the insurance carrier has complied with sub. (4).'

The respondent, however, contends that sec. 893.205, Stats., applies to the instant case. That section provides, in relevant part:

'893.205 Within 3 years. Within 3 years:

'(1) An action to recover damages for injuries to the person for such injuries . . ..

'(2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another where death resulted on or after July 1, 1955.'

If the respondent is correct in his assertion, then the present actions are barred by virtue of the fact that the actions were not commenced against the respondent within three years after the date of the accident.

The trial court, in ruling on the demurrers, found that sec. 102.29(5), Stats., did not apply because the policy of insurance issued by United States Fidelity and Guaranty Company only covered the respondent for negligence while he was acting in the capacity of a...