Wascher v. ABC Ins. Co.
Decision Date | 09 February 2022 |
Docket Number | Appeal No. 2020AP1961 |
Citation | 401 Wis.2d 94,972 N.W.2d 162,2022 WI App 10 |
Parties | Thomas WASCHER and Pamela Wascher, Plaintiffs-Appellants-Cross-Respondents, v. ABC INSURANCE COMPANY, Continental Western Insurance Company, Natural Surfaces, LLC and Wilson Mutual Insurance Company, Defendants-Respondents, Carved Stone Creations, Defendant-Respondent-Cross-Appellant. |
Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of George R. Burnett of Law Firm of Conway, Olejniczak & Jerry, S.C., Green Bay.
On behalf of the defendant-respondent, Continental Western Insurance Company, the cause was submitted on the brief of Thomas R. Schrimpf of Hinshaw & Culbertson LLP, Milwaukee.
On behalf of the defendants-respondents, Natural Surfaces, LLC and Wilson Mutual Insurance Company, the cause was submitted on the brief of Christopher R. Bandt and Sean A. Bukowski of Nash, Spindler, Grimstad & McCracken, LLP, Manitowoc.
On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of Erik J. Pless and Gabriel G. Siehr of Everson, Whitney, Everson & Brehm, S.C., Green Bay.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 In this lawsuit, Thomas and Pamela Wascher have alleged negligence and breach of contract claims against Continental Western Insurance Company, Natural Surfaces, LLC, and Carved Stone Creations (collectively, "the Defendants"), stemming from the allegedly improper installation of stone cladding during the original construction of the Waschers’ home.1 The Waschers have also alleged additional negligence and breach of contract claims against Carved Stone based on repair work that Carved Stone later performed on the house.
¶2 The circuit court granted the Defendants’ motions to dismiss the Waschers’ negligence claims stemming from the original construction of the house, concluding those claims were barred by the economic loss doctrine. The court later granted summary judgment in favor of the Defendants on the Waschers’ breach of contract claims stemming from the original construction of the home, concluding those claims were barred by the applicable statute of limitations and statute of repose— WIS. STAT. §§ 893.43 and 893.89 (2015-16),2 respectively. However, the court denied Carved Stone's motion for summary judgment regarding the Waschers’ negligence and breach of contract claims arising out of Carved Stone's later repair work.
¶3 The Waschers now appeal the circuit court's orders dismissing their negligence and breach of contract claims stemming from the original construction of their home. Carved Stone cross-appeals, arguing that the court erred by denying its summary judgment motion with respect to the claims arising out of its later repair work.3 We conclude the court did not err either by dismissing the negligence and breach of contract claims stemming from the original construction of the Waschers’ home, or by denying summary judgment on the claims arising from Carved Stone's later repair work. We therefore affirm.
¶4 In 2005, the Waschers hired Mathwig Builders to act as the general contractor for the construction of their home in Greenville, Wisconsin. The exterior walls and patio of the home were to be covered with stone cladding. Mathwig Builders hired Natural Surfaces and Carved Stone as subcontractors for the project. The parties agree that Carved Stone supplied the stone and provided guidance regarding its installation, while Natural Surfaces actually installed the stone on the Waschers’ home.
¶5 On November 3, 2008, the Town of Greenville inspected the Waschers’ residence and granted them permission to occupy the residence as of that date. During her deposition, Pamela Wascher testified that the Waschers moved into the home in mid-November of 2008, although she did not know the exact date. Pamela further testified that "right away in 2009," the Waschers noticed "effervescence on the main patio, the main lanai, a lot of white substance coming through the stone." At that time, the effervescence was present only on the flat, horizontal stone on the patio. However, Pamela testified that in 2010 the effervescence was "all over the stone," on both horizontal and vertical surfaces.
¶6 In 2010, the Waschers hired Rob Ripley of Carved Stone to repair the stone cladding on their residence. Pamela testified that during those repairs, stone was removed from one of the home's vertical walls, revealing that flashing had not been installed behind the stone, "which means that all the water was going behind the stone and into the patio." The Waschers paid Carved Stone for the 2010 repair work. They approached Roger Mathwig about having him pay for that work, but he responded that the Waschers would need to sue him in order for him to pay.
¶7 The Waschers then retained an attorney, who sent a demand letter to Mathwig Builders’ counsel on September 30, 2010, requesting reimbursement for repair costs in the amount of $22,328.83. Continental Western ultimately paid the Waschers approximately $14,000. In exchange for that amount, on February 24, 2011, the Waschers signed a "Property Damage Settlement and Release," which purported to release Mathwig Builders and Natural Surfaces from "any and all claims ... arising out of the accident or incident that occurred on or about October 1st, 2009, at or near Greenville WI." Pamela testified that the release was "for the incident of this flashing situation."
¶8 Pamela further testified that in June or July of 2012, the Waschers "first observed" stone falling off of their home's vertical exterior walls. At some point in 2012, the Waschers again hired Carved Stone to perform repair work on the stone cladding. Ripley has averred that Carved Stone's repair work "was completed, at the very latest, by September 18, 2012." In contrast, the Waschers allege that invoices from Carved Stone show that it continued performing repair work on their home until 2017.
¶9 From 2014 to 2018, the Waschers hired various other firms to inspect the stone on their home and explore repair options. In August 2018, pursuant to WIS. STAT. § 895.07(2), the Waschers sent letters to Continental Western (as Mathwig Builders’ insurer), Carved Stone, and Natural Surfaces, providing notice of the Waschers’ claims against those entities and granting them the opportunity to repair the alleged defects. The Waschers received no responses to their August 2018 letters.
¶10 The Waschers subsequently filed this lawsuit against the Defendants on November 20, 2018. The complaint alleged that the work performed by Mathwig Builders, Carved Stone, and Natural Surfaces was "deficient in regard to attaching and adhering the stone to the house" and that those entities "deviated from industry standards in construction for adhering the stone to the home" and "acted in a careless and negligent manner." The complaint also alleged that Carved Stone had been hired to perform repair work in 2012, but its work "to remedy the deficiencies in the stone cladding and horizontal deck stone topping systems on the house ... created new problems with the house which included water damage." The complaint sought damages, as well as "an injunction ordering Defendants to perform remedial work" at the Waschers’ home.
¶11 The Defendants moved to dismiss, arguing that the Waschers’ complaint failed to state a claim upon which relief could be granted. Specifically, the Defendants argued that: (1) the Waschers’ negligence claims were barred by the economic loss doctrine; (2) the Waschers’ breach of contract claims were barred by the statute of limitations for contract actions, WIS. STAT. § 893.43 ; and (3) WISCONSIN STAT. § 893.89 —the statute of repose for actions alleging injuries resulting from improvements to real property—barred all of the Waschers’ claims stemming from the original construction of their residence.
¶12 The circuit court granted the Defendants’ motions to dismiss in part, concluding that the Waschers’ negligence claims stemming from the original construction of their residence were barred by the economic loss doctrine. However, the court denied the Defendants’ motions to dismiss the Waschers’ breach of contract claims. Although the court concluded that the "work complete[d] in 2008" was "clearly barred by the statute of limitations," it determined that the Waschers’ complaint adequately alleged a defense to the statute of limitations—i.e., equitable estoppel.4 The court further concluded that the facts alleged in the complaint did not establish that the Waschers’ claims arising from Carved Stone's later repair work were barred by the statute of limitations.
¶13 The Defendants then moved for summary judgment, arguing the undisputed facts established that: (1) the statute of repose barred all of the Waschers’ claims stemming from the original construction of their residence; (2) the statute of limitations barred the Waschers’ breach of contract claims stemming from the original construction, including their claim for injunctive relief; and (3) the doctrine of equitable estoppel did not apply. Carved Stone also argued that the Waschers’ breach of contract and negligence claims stemming from Carved Stone's later repair work were barred, respectively, by the statute of limitations and the economic loss doctrine.
¶14 The circuit court granted the Defendants summary judgment on the Waschers’ breach of contract claims stemming from the original construction of their home, concluding that those claims were barred by the statutes of limitations and repose, and that the doctrine of equitable estoppel did not apply. The court denied summary judgment, however, with respect to the claims arising from Carved Stone's later repair work. The court concluded the economic loss doctrine did not apply to those claims because the Waschers contended that Carved Stone "provided primarily labor...
To continue reading
Request your trial