Swanson Furniture Co. of Marshfield, Inc. v. Advance Transformer Co.

• Decision Date: 05 January 1982
• Docket Number: No. 81-470,81-470
• Citation: 105 Wis.2d 321,313 N.W.2d 840
• Parties: SWANSON FURNITURE COMPANY OF MARSHFIELD, INC., a corporation, Lawrence W. Swanson, and Iowa National Mutual Insurance Company, Plaintiffs-Appellants, v. ADVANCE TRANSFORMER COMPANY, a corporation, General Electric Company, acorporation, and Scott & Fetzer Company, a corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 840

313 N.W.2d 840

105 Wis.2d 321

SWANSON FURNITURE COMPANY OF MARSHFIELD, INC., a corporation, Lawrence W. Swanson, and Iowa National Mutual Insurance Company Plaintiffs-Appellants, v. ADVANCE TRANSFORMER COMPANY, a corporation, General Electric Company, acorporation, and Scott & Fetzer Company a corporation, Defendants-Respondents.

No. 81-470.

Supreme Court of Wisconsin.

Submitted on Briefs Dec. 3, 1981.

Decided Jan. 5, 1982.

Thomas N. Hayden and Zappen, Meissner, Oestreicher, Craig & Hayden, Marshfield, and Mark J. Feinberg, David E. Bland and Robins, Zelle, Larson & Kaplan, Minneapolis, Minn., for plaintiffs-appellants.

John Theiler Bode and Hippenmeyer, Reilly, Arenz, Molter, Bode & Gross, S. C., Waukesha, for Advance Transformer Co.

James E. Garvey and Garvey, Anderson, Kelly & Ryberg, S. C., Eau Claire, Wright W. Brooks, Martin N. Burke, Winthrop A. Rockwell and Faegre & Benson, Minneapolis, Minn., for General Elec. Co.

Hiram D. Anderson, Jr., Stevens Point, for Scott & Fetzer Co.; Thomas W. Bertz and Anderson, Fisher, Shannon, O'Brien & Rice, Joseph R. Pfiffner, Stevens Point, of counsel.

STEINMETZ, Justice.

This court granted the petition to bypass the court of appeals filed by the plaintiffs.

There are two issues raised in this appeal. They are:

(1) Whether sec. 893.155, Stats. 1977, ¹ applies to manufacturers of a product and its component parts incorporated into an improvement to real property. The trial court answered "yes." We disagree and, therefore, reverse.

(2) Whether sec. 893.155, Stats. 1977, can constitutionally be applied to bar appellants' remedy for an injury sustained. The trial court answered "yes." We do not reach the issue in this case; however, the court ruled in U. S. Fire Insurance Co. v. E. D. Wesley Co., --- Wis.2d ---, 313 N.W.2d 883, 1982, on the same issue.

This action was commenced by filing a summons and complaint on February 27, 1979, against Advance Transformer Company, General Electric Company and Scott & Fetzer Company. The complaint was amended pursuant to the trial court's order of July 2, 1979. The plaintiffs allege the defendants are liable under a product liability theory and liable both strictly and in negligence. The defendant, Scott & Fetzer Company, succeeded the John Virden Company which manufactured florescent light fixtures which were subsequently installed in the Swanson furniture store when it was built in 1964-1965. The Advance Transformer Company and General Electric Company manufactured ballasts which were incorporated into the manufactured fixtures.

Construction of the building was completed in 1964-1965, and the fixtures which are the subject of this action were installed by Thomas Electric Company.

The record is totally devoid of any evidence indicating that any of the defendants dealt directly with the plaintiff, Swanson; rather, the record indicates that no defendant had a direct relationship with the construction of the one-story building.

The suit is for damages resulting from a fire in the Swanson furniture store in Marshfield, Wisconsin, on June 17, 1976. The building and contents were insured by Iowa National Mutual Insurance Company. The amended complaint alleged that the fire was the result of a defective light fixture installed in the basement of the furniture store. Iowa National Mutual sues on a subrogation basis for its payment pursuant to a policy of insurance, and Lawrence W. Swanson and the Swanson Furniture Company of Marshfield, Inc., sue for damages sustained not compensable under the policy.

The defendants brought motions for summary judgment which were granted by the trial court and judgment dismissing the plaintiffs' complaint and amended complaint was granted on January 21, 1981. The trial court held that sec. 893.155, Stats. 1977, applied to defendants' and plaintiffs' causes of action and that the statute was constitutional. The significant finding of the statute's application to these defendants was: "The Court therefore finds that the defendants herein were suppliers of material to improvement of real property ...." (Emphasis added.)

The record establishes that none of the defendants dealt directly with the plaintiff, Swanson, or even with the electrical contractor who actually installed the florescent light fixtures within the furniture store. There is no evidence that indicates the fixtures at issue here or the ballasts within them were manufactured, designed, or supplied specifically for the construction of the Swanson furniture store or even that any of the defendants knew where the fixtures would ultimately be installed.

The case points out directly the selectivity exercised by the legislature in the classification of persons protected by the limitation umbrella of sec. 893.155, Stats. 1977.

This court found the predecessor sec. 893.155, Stats. 1971, ² unconstitutional in Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 383-84, 225 N.W.2d 454 (1975), and in so ruling stated:

"We also conclude that sec. 893.155, Stats., is unconstitutional, because it grants immunities to the class of defendants protected therein on a classification basis that is unreasonable and denies other possible defendants equal protection of the laws, under the constitution of the United States...."

At 391, 225 N.W.2d 454 of Kallas, supra, the court stated:

"We ... conclude that the legislative classification that gives special protection to the protected group is unreasonable. While there are public policy reasons that might justify a limitations period that takes into consideration those who are engaged in the construction business, there appears no reason why only a very restricted class of those thus occupied is protected by the statute." (Emphasis added.)

Sec. 893.155, Stats. 1971, was then amended in 1976 and the following changes were made:

(1) "(L)and surveying" and "materials" were added to the list of services which might be performed as an improvement to property.

(2) "(S)ubstantial completion" was added and "performance or furnishing of such services" was deleted.

(3) The sentence which previously made the statute inapplicable to owners or persons in control was omitted. However, it did not list them in the protected group.

(4) A provision was added allowing an extension of six months if the injury occurred more than five but less than six years after completion. ³

These defendants do not argue that the statute is unconstitutional; they would not benefit from that holding. Instead, they argue that they are included within the protected classification.

The plaintiffs argue the section is unconstitutional, as an alternative to their primary position, which is that these defendants are not included in the protected class of the statute. Since we agree with the plaintiffs' primary position, we do not consider the constitutional argument.

If the statute is clear and unambiguous on its face, this court will not look to outside aids in applying it. The clear meaning of the statute in this case is supported by the legislature's findings and intent as expressed in the enabling act for sec. 893.155, Stats. 1977.

In ch. 335, Laws of 1975, sec. 1(a), the legislature said:

"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 (sic) 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."

This statement of intent of the legislature is consistent with the plain and clear meaning of the statute that it be applicable to:

(1) Injury to person or property.

(2) Damages arising out of the defective and unsafe condition of an improvement to real property.

(3) Any person performing or furnishing the design, land surveying, planning, supervision of construction, materials or construction of such improvement to real property.

None of the defendants fall within the protected class. There is no proof the light fixture in question was designed for this construction or even in contemplation of the construction.

The evidence in this case is that the fixtures were manufactured without any particular project considered. They were sold for use to be determined by someone else later in the commercial chain. They were not designed nor manufactured as an improvement...