Wenke v. Gehl Co.

• Decision Date: 20 August 2003
• Docket Number: No. 01-2649.,01-2649.
• Citation: Wenke v. Gehl Co., 2003 WI App 189, 267 Wis. 2d 221, 669 N.W.2d 789 (Wis. App. 2003)
• Parties: Martin G. WENKE and Dakota M. Wenke, a minor, by his Guardian ad Litem, Lynn R. Laufenberg, Plaintiffs-Appellants, v. GEHL COMPANY, a Wisconsin corporation, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

267 Wis.2d 221

2003 WI App 189

669 N.W.2d 789

Martin G. WENKE and Dakota M. Wenke, a minor, by his Guardian ad Litem, Lynn R. Laufenberg, Plaintiffs-Appellants,¹ v. GEHL COMPANY, a Wisconsin corporation, Defendant-Respondent.

No. 01-2649.

Court of Appeals of Wisconsin.

Submitted on briefs August 11, 2003.

Decided August 20, 2003.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Lynn R. Laufenberg of Laufenberg & Hoefle, S.C., Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Francis H. LoCoco and Daniel J. La Fave of Quarles & Brady, LLP, Milwaukee.

A nonparty brief was filed by Ralph A. Weber and Beth Ermatinger Hanan of Reinhart, Boerner, Van Deuren, S.C. of Milwaukee for Wisconsin Manufacturers and Commerce.

A nonparty brief was filed by William C. Gleisner, III, of Madison, and David M. Skoglind of Aiken & Scoptur, S.C. of Milwaukee for Wisconsin Academy of Trial Lawyers.

Before Brown, Nettesheim and Snyder, JJ.

¶ 1. SNYDER, J.

Martin G. Wenke and Dakota M. Wenke, a minor, (collectively, Wenke) appeal from a summary judgment in favor of Gehl Company (Gehl). Wenke argues that the circuit court failed to distinguish between a statute of limitations and a statute of repose; specifically, Wenke argues that the circuit court misconstrued the significance of Landis v. Physicians Insurance Co. of Wisconsin, Inc., 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, and was required to follow the holding of Leverence v. United States Fidelity & Guaranty, 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990). We disagree and conclude that Landis functionally overruled Leverence. We affirm the judgment of the circuit court.

FACTS

¶ 2. On September 12, 1997, Martin Wenke's right arm was amputated while he was attempting to remove hay from the front of a Gehl Model RB1450 baler. At the time of the incident, Wenke was an Iowa resident. The baler was designed and manufactured by Gehl Company whose principal business operations are in West Bend, Wisconsin. The baler in question was first sold by Gehl to another Iowa resident on May 26, 1981.

¶ 3. Wenke commenced this action in Wisconsin on August 18, 1999. On January 31, 2000, Gehl moved for summary judgment on the grounds that Iowa's statute of repose prohibited Wenke's claim. Iowa's statute of repose provides that no product liability action may be commenced "more than fifteen years after the product was first purchased." Thus, the time period for filing a product liability action would have expired on May 26, 1996.

¶ 4. Gehl argued that Leverence, which held that Wisconsin's Borrowing Statute has no application to a foreign state's statute of repose, was erroneously decided. See Leverence, 158 Wis. 2d at 92-93. Gehl's summary judgment motion was denied. Gehl unsuccessfully sought interlocutory review of this decision.

¶ 5. On June 8, 2001, Gehl filed a motion for reconsideration of this earlier summary judgment ruling, based upon the Wisconsin Supreme Court's decision in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, arguing that Aicher undercut the Leverence decision. This motion was denied.

¶ 6. On July 17, 2001, Gehl renewed its motion for reconsideration of the summary judgment decision, based upon the Wisconsin Supreme Court's recent decision in Landis. After a hearing on August 6, 2001, the circuit court acknowledged that Landis did not explicitly overrule Leverence but stated that it must follow the holding of Landis where it conflicted with Leverence and granted Gehl's motion for summary judgment, concluding that Iowa's fifteen-year statute of repose barred the action based upon Wisconsin's Borrowing Statute. Wenke appealed.

¶ 7. On June 12, 2002, we certified the following issue to the Wisconsin Supreme Court: Whether the holding of Leverence, distinguishing between statutes of limitations and statutes of repose, was functionally overruled by Landis. The Wisconsin Supreme Court accepted certification of this issue; however, on July 8, 2003, the supreme court issued a decision, with one justice not participating, indicating that the court was equally divided on whether to affirm or reverse the judgment. Based upon this tie vote, the supreme court vacated its acceptance of our certification and remanded the cause to us. See State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995).²

DISCUSSION

[1]

¶ 8. We first summarize the two cases at issue. Leverence was an insurance coverage case where 798 occupants of homes built by Tri-State Homes brought strict liability and negligence actions against Tri-State's insurers and an inspection service. Leverence, 158 Wis. 2d at 71-72. The occupants alleged that their homes retained excessive moisture within their interior walls, which promoted mold, mildew, fungus, spores and other toxins that presented a continuing health risk and adversely affected the value of the homes. Id. at 72. Tri-State manufactured prefabricated homes during the 1970s and 1980s and marketed them in northern Wisconsin, Minnesota and Michigan. Id. Tri-State's insurers provided comprehensive general liability insurance coverage to Tri-State. Id.

¶ 9. The Leverence trial court held that the insurers were entitled to summary judgment because Tri-State had failed to provide timely notice of an occurrence as required by the policies, that the inspection agency had no duty to the occupants independent of its contractual obligations to Tri-State and that the occupants failed to demonstrate any breach of those contractual obligations. Id. at 71. Despite the dispositive nature of these rulings, the trial court went on to rule on other policy defenses raised by the insurance companies; the said rulings were challenged on appeal by the homeowners and on cross-appeal by the insurers. Id.

¶ 10. We reversed the trial court on the summary judgment issue, concluding that there were issues of material fact on the notice of occurrence issue. Id. However, we affirmed the judgment on the cross-appeal issues. Id. at 71-72. Specifically, the insurers had argued that Minnesota's statute of repose applied to the Minnesota plaintiffs by virtue of Wisconsin's Borrowing Statute, Wis. STAT. § 893.07 (2001-02).³Leverence, 158 Wis. 2d at 90. Minnesota's statute of repose provided that no action arising out of a defective condition of an improvement to real property may be brought more than ten years after substantial completion of construction. Id. at 90-91. Wisconsin's Borrowing Statute provided: "If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state." Id. at 91; see also § 893.07(1).

¶ 11. We specifically distinguished between statutes of limitations and statutes of repose:

A period of limitation bars an action if the plaintiff does not file suit within a set period of time from the date on which the cause of action accrued. In contrast, a period of repose bars a suit a fixed number of years after an action by the defendant (such as manufacturing a product), even if this period ends before the plaintiff suffers any injury.

Leverence, 158 Wis. 2d at 92 (citation omitted).

¶ 12. "[I]n Wisconsin, limitations are not treated as statutes of repose." Id. at 91 (citation omitted). We expressly rejected the insurers' argument that statutes of repose and limitations are without distinction and concluded that the plain language of Wisconsin's Borrowing Statute, Wis. STAT. § 893.07,⁴ mandated its application only to statutes of limitations, not to statutes of repose. Leverence, 158 Wis. 2d at 90-92. ¶ 13. However, the Wisconsin Supreme Court's ruling in Landis seems to directly contradict this language. In Landis, Phyllis M. Landis sued Physicians Insurance Company, the Midelfort Clinic, the Mayo Health System, Luther Hospital, the Wisconsin Patients Compensation Fund and a heart surgeon for alleged medical malpractice resulting in the death of her husband. Landis, 245 Wis. 2d 1, ¶ 1. The defendants filed a motion to dismiss the complaint relying on Wis. STAT. § 893.55(1)(b) in asserting that the five-year time limit in this statute for filing a medical malpractice action expired before the commencement of the action. Landis, 245 Wis. 2d 1, ¶ 2. The circuit court disagreed and denied the motion to dismiss, concluding that the mediation process mandated by Wis. STAT. § 655.44,⁵ in particular the tolling provision in subsec. (4), tolled the five-year limitation. Landis, 245 Wis. 2d 1, ¶ 2.

¶ 14. We granted the defendants leave to appeal this nonfinal order and reversed the circuit court's decision, determining that the Wis. STAT. § 655.44 mediation process did not toll the five-year limitation. Landis, 245 Wis. 2d 1, ¶ 3. We concluded that the five-year limitation in Wis. STAT. § 893.55(1)(b), which operates as a statute of repose, was not tolled because § 655.44(4) tolled any applicable statute of limitations but not any applicable statute of repose. Landis, 245 Wis. 2d 1, ¶ 3. We specifically noted the distinction between statutes of limitations and statutes of repose. Id.

¶ 15. The Wisconsin Supreme Court reversed our decision, concluding that when the legislature wrote the language in Wis. STAT. § 655.44(4), it intended to include any applicable statute of repose and made no distinction between a statute of limitations and a statute of repose. Landis, 245 Wis. 2d 1, ¶ 5. The Landis court held that the tolling provisions of § 655.44(4) apply to both statutes of limitations and statutes of repose, concluding that the term "statute of repose" is largely a judicial label for a particular type of limitation on actions. Landis, 245 Wis. 2d 1, ¶ 5. Landis extensively discussed the historical definitions of statutes of repose and statutes of limitations, id., ¶¶ 25-36, and concluded that statutes of both limitations and...