Peter v. Sprinkmann Sons Corp.

• Decision Date: 27 January 2015
• Docket Number: No. 2014AP923.,2014AP923.
• Citation: 360 Wis.2d 411,860 N.W.2d 308
• Parties: Pamela PETER, individually and as Personal Representative of the Estate of Donald O. Peter, Plaintiff–Appellant, v. SPRINKMANN SONS CORPORATION, Defendant–Respondent, Metropolitan Life Ins. Co., Defendant, United Health Care Service, Subrogated Defendant.
• Court: Wisconsin Court of Appeals

360 Wis.2d 411

860 N.W.2d 308

Pamela PETER, individually and as Personal Representative of the Estate of Donald O. Peter, Plaintiff–Appellant

v.SPRINKMANN SONS CORPORATION, Defendant–RespondentMetropolitan Life Ins. Co., DefendantUnited Health Care Service, SubrogatedDefendant.

No. 2014AP923.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 4, 2014.

Opinion Filed Jan. 27, 2015.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Steven R. Penn and Jill A. Rakauski of Penn Rakauski, Racine.

On behalf of the defendant-respondent, the cause was submitted on the brief of James A. Niquet, Laura E. Schuett and Stacy K. Luell of Crivello Carlson S.C., Milwaukee.

Before KESSLER and BRENNAN, JJ., and THOMAS CANE, Reserve Judge.

Opinion

CANE, J.

¶ 1Pamela Peter appeals the summary judgment order dismissing her claim against Sprinkmann Corporation seeking damages in an asbestos case involving the death of her husband, Donald Peter.The circuit court ruled that her claim was barred by Wis. Stat. § 893.89, the construction statute of repose.Peter claims that § 893.89, does not bar her claim because: (1) the damages exception in § 893.89(4)(d), allowing claims for “[d]amages that were sustained before April 29, 1994” applies because Donald's exposure to asbestos occurred long before April 29, 1994; and (2) Sprinkmann's work with the asbestos insulation that allegedly gave Donald mesothelioma was routine maintenance and repairs, not improvement to real property.We agree with Sprinkmann that Peter's claim does not fall within the exception to the statute, but reject its argument that its work was an improvement to real property.Therefore, we reverse the summary judgment order and remand for further proceeding consistent with this opinion.

BACKGROUND

¶ 2 In 1959, Donald started work as a maintenance machinist at the Pabst Brewery.He worked in the Pabst “Bottle House” for over thirty-six years.During that time, Sprinkmann had an agreement with Pabst to install, maintain, and repair the asbestos insulation on the steam pipes on the various pieces of equipment used in production.In May 2012, Donald was diagnosed with malignant pleural mesothelioma.Donald sued Sprinkmann alleging that his exposure to Sprinkmann's “installation, removal and maintenance of asbestos containing pipe and block insulation at Pabst Brewery” caused his injury.After Donald died in October 2013, his wife amended the complaint to add a wrongful death claim.

¶ 3 Sprinkmann's Vice–President, Ralph Van Beck, testified at his deposition that the insulation on the soakers and pasteurizer machines in the Bottle House were in need of “constant repair” and Sprinkmann had at least one full-time employee whose only job was to repair insulation at Pabst.Another Sprinkmann employee testified at deposition that Sprinkmann had an employee who worked at Pabst “100% of the time” doing repairs to the pipe insulation until 1979 when Sprinkmann lost the Pabst contract.

¶ 4 During discovery, Sprinkmann produced over 20,000 documents that detailed the work it performed at Pabst, most of which were “job files” that specifically related to the maintenance and repair work it did in the Pabst Bottle House.

¶ 5 Sprinkmann filed a motion seeking summary judgment on two grounds: (1) Peter cannot show that Sprinkmann's products caused Donald's injuries; and (2) the construction statute of repose bars Peter's claims.The circuit court agreed with Sprinkmann that the statute barred Peter's claims and dismissed the action.The circuit court ruled that the damages exception in the statute of repose did not apply and that Sprinkmann's work was improvement to real property.It did not address causation.Peter now appeals.

DISCUSSION

A.Standard of Review.

¶ 6We review a grant of summary judgment independently, applying the same standards as the circuit court.

Smith v. Dodgeville Mut. Ins. Co.,212 Wis.2d 226, 232, 568 N.W.2d 31(Ct.App.1997).We must examine the pleadings to determine whether the claims have been stated, and then determine whether any material factual issues have been presented.Id. at 232–33, 568 N.W.2d 31.Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Wis. Stat. § 802.08(2).¹Here, the material facts are undisputed with regard to these issues.

¶ 7 The issue is whether the construction statute of repose bars Peter's lawsuit either because Sprinkmann's work was an improvement to real property or because the lawsuit does not fall within the statute's damages exception.Interpretation of a statute is a question of law we review without deference to the circuit court.Barry v. Employers Mut. Cas. Co.,2001 WI 101, ¶ 17, 245 Wis.2d 560, 630 N.W.2d 517.When we interpret a statute, we try “to ascertain and give effect to the statute's intended purpose.”SeeWenke v. Gehl Co.,2004 WI 103, ¶ 32, 274 Wis.2d 220, 682 N.W.2d 405.To do so, we start with the language of the statute.State ex rel. Kalal v. Circuit Court for Dane Cnty.,2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110.We give the statutory language “its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.”Id.We reject an interpretation that leads to an absurd or unreasonable result and we try to give “reasonable effect to every word, in order to avoid surplusage.”Id.,¶ 46.Moreover, if “a legal term has a well-settled meaning within the law of the jurisdiction, it is presumed that the legislature intended to convey such meaning when using that term in the statute.”Thomas v. Iowa Nat'l Mut. Ins. Co.,132 Wis.2d 18, 23, 390 N.W.2d 572(Ct.App.1986).

¶ 8The statute involved, Wis. Stat. § 893.89, provides in pertinent part:

Action for injury resulting from improvements to real property.(1)In this section, “exposure period” means the 10 years immediately following the date of substantial completion of the improvement to real property.

(2) Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property.This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.

....

(4)This section does not apply to any of the following:

(a) A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.

(b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.

(c) An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.

(d)Damages that were sustained before April 29, 1994.

(Emphasis added.)

B.Damages exception.

¶ 9 The first issue is whether the damages exception in Wis. Stat. § 893.899 applies.When the legislature enacted the construction statute of repose, it carved out an exception to ensure that the new statute did not extinguish any then-existing valid claims.The exception provides: “(4)This section does not apply to any of the following: ... (d) Damages that were sustained before April 29, 1994.”

¶ 10 Both parties observe that this exception has resulted in split decisions in our circuit courts.Some circuit courts have found that the exception removes asbestos cases from the statute of repose bar based on expert testimony opining that the plaintiff's lungs were damaged at the time he or she was exposed to asbestos.In other words, damages occur at the time the plaintiff inhales the asbestos fibers and long before any symptoms or diagnosis of mesothelioma.Other circuit courts, however, have ruled that the damages exception in the statute of repose does not save the asbestos cases because “damages” in Wis. Stat. § 893.89(4)(d) means legally actionable damages.In other words, the plaintiff must show that he or she could have sued before April 29, 1994.

¶ 11 As these asbestos cases filter into the court system, plaintiffs argue that their damages did occur before April 29, 1994, based on their expert's opinion that their lungs were physically damaged at the time of exposure.Because asbestos exposure occurred before April 1994, the plaintiffs' reason that their cases fall under the damages exception and are not barred by the statute's ten-year repose period.In response, the defendants in these cases contend that the term “damages” in the statute of repose requires that the plaintiff have legally actionable damages before April 29, 1994.Based on the defendant's position, an asbestos plaintiff would not have a legally cognizable action until he or she showed symptoms of or was diagnosed with mesothelioma, which does not occur until thirty or forty years after exposure.Accordingly, by the time a plaintiff showed symptoms, the statute of repose had already passed and therefore barred any asbestos claim stemming from improvement to real property.

¶ 12 Peter makes the argument here that her husband was damaged long before April 29, 1994, as evidenced by her expert's opinion that physical injury occurs when a person is exposed to and inhales asbestos fibers.Peter submitted evidence showing that Donald worked in a building at Pabst where he was exposed to and...