Wosinski v. Advance Cast Stone Co.
| Decision Date | 11 July 2017 |
| Docket Number | Appeal No. 2014AP2660,Appeal No. 2015AP1212,Appeal No. 2014AP1961,Appeal No. 2014AP2213,Appeal No. 2014AP2274 |
| Parties | AMY J. WOSINSKI, ERIC WOSINSKI, A MINOR AND STEVEN J. WOSINSKI, SR., PLAINTIFFS-RESPONDENTS, GUHRING, INC., PLAINTIFF, v. ADVANCE CAST STONE CO. AND MILWAUKEE COUNTY, DEFENDANTS-RESPONDENTS, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-RESPONDENTS, v. MILWAUKEE COUNTY AND ADVANCE CAST STONE CO., DEFENDANTS-RESPONDENTS, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. CHRISTOPHER KELLNER, PLAINTIFF, v. ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. AMY J. WOSINSKI, ERIC WOSINSKI , A MINOR, STEVEN J. WOSINSKI, SR. AND GUHRING, INC., PLAINTIFFS, v. MILWAUKEE COUNTY, LIBERTY SURPLUS INSURANCE CORPORATION, LIBERTY INSURANCE UNDERWRITERS, INC. AND ADVANCE CAST STONE CO., DEFENDANTS. ESTATE OF JARED C. KELLNER , BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-APPELLANTS, v. MILWAUKEE COUNTY, LIBERTY SURPLUS INSURANCE CORPORATION, LIBERTY INSURANCE UNDERWRITERS, INC. AND ADVANCE CAST STONE CO., DEFENDANTS-RESPONDENTS. CHRISTOPHER KELLNER, PLAINTIFF, v. ADVANCE CAST STONE CO., LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS. AMY J. WOSINSKI, STEVEN J. WOSINSKI, SR. AND ERIC WOSINSKI, A MINOR, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS, GUHRING, INC., PLAINTIFF, v. ADVANCE CAST STONE CO., DEFENDANT-APPELLANT-CROSS-RESPONDENT, MILWAUKEE COUNTY, DEFENDANT-RESPONDENT, LIBERTY INSURANCE UNDERWRITERS, INC. AND LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANTS. ESTATE OF JARED C. KELLNER , BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-RESPONDENTS, v. ADVANCE CAST STONE CO., DEFENDANT-APPELLANT, LIBERTY INSURANCE UNDERWRITERS, INC., MILWAUKEE COUNTY AND LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANTS. CHRISTOPHER KELLNER, PLAINTIFF, v. LIBERTY INSURANCE UNDERWRITERS, INC., ADVANCE CAST STONE CO. AND LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANTS. AMY J. WOSINSKI, ERIC WOSINSKI, A MINOR, STEVEN J. WOSINSKI, SR., PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS, GUHRING, INC., PLAINTIFF, v. MILWAUKEE COUNTY, DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANT-APPELLANT, ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT-CROSS-RESPONDENT, LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANT-APPELLANT-CROSS-RESPONDENT. AMY J. WOSINSKI, ERIC WOSINSKI, A MINOR, STEVEN J. WOSINSKI, SR. AND GUHRING, INC., PLAINTIFFS, v. ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS, MILWAUKEE COUNTY, DEFENDANT. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS, v. ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS, MILWAUKEE COUNTY, DEFENDANT. |
| Court | Wisconsin Court of Appeals |
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
APPEALS and CROSS-APPEALS from judgments of the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY, Judge. Judgments affirmed in part, reversed in part, and cause remanded for further proceedings.
Before Brennan, P.J., Kessler and Brash, JJ.
¶1 BRASH, J. Advanced Cast Stone (ACS) and its insurer, Liberty Surplus Insurance Corporation and Liberty Insurance Underwriters Inc. (collectively, "Liberty"), appeal the judgments as entered by the trial court on July 11, 2014, regarding the liability for and damages resulting from the collapse of a concrete panel at the O'Donnell Park Parking Structure (O'Donnell Park). ACS was found to be primarily negligent for the failure of the panel, and relief was granted to the Estate of Jared Kellner and Dawn Kellner (collectively, "Kellner Plaintiffs"), to Steven J. Wosinski, Amy J. Wosinski, and Eric Wosinski (collectively, "Wosinski Plaintiffs"), and to Milwaukee County, as follows:
The total damages award was over $39 million.
¶2 On appeal, ACS argues (1) that the claims were barred based on time limitations as set forth in WIS. STATS. §§ 893.89 and 893.43 (2015-16)1; (2) that there were several erroneous evidentiary rulings made during the course of the trial that prejudiced ACS; and (3) that certain damages are not sufficiently supported by the evidence and should therefore be dismissed or reduced, including the punitive damages award, the damages to the Estate of Jared Kellner for pre-death pain and suffering, and the damages to Milwaukee County.
¶3 Furthermore, Liberty appeals the trial court's finding rendered post-verdict with regard to insurance coverage issues: that there was coverage as a matter of law. Moreover, Liberty appeals the trial court's finding that Liberty had breached its duty to defend and duty of good faith and fair dealing, and was therefore responsible for the entire amount of the damages awarded in the verdict.
¶4 Additionally, the Kellner Plaintiffs and the Wosinski Plaintiffs filed cross-appeals on several issues: (1) that the pre-trial offer of settlement made by the Kellner Plaintiffs was valid; (2) that the Wosinski Plaintiffs are entitled to statutory interest on the entire judgment, including costs; and (3) that the statute of repose does not apply as a matter of law and, as such, summary judgment should have been granted.
¶5 Upon review, we reverse the trial court's finding that Liberty breached its duty to defend ACS. As a result, Liberty is responsible for coverage only to the extent provided in ACS's policy. Additionally, we conclude that there was no claim by ACS for breach of duty of good faith and fair dealing before the trial court; thus, its award of damages based on its finding that Liberty breached that duty is unsupported, and we therefore reverse that ruling as well.
¶6 We also reverse and remand on the issue of coverage for the damages awarded to Milwaukee County, as they are subject to the "your work" exclusion of the policy, and therefore further findings are necessary to itemize and categorize the damages. The jury verdict and all other rulings are affirmed.
¶7 This case stems from the tragic accident that occurred on June 24, 2010, at the O'Donnell Park parking garage in Milwaukee, where a large concrete panel fell from the structure, killing Jared Kellner and injuring Steven, Amy, and Eric Wosinski.
¶8 On that afternoon, Steven Wosinski, together with his wife, Amy, their son, Eric, and Eric's friend, Jared Kellner, had parked their vehicle at O'Donnell Park to spend the evening at Summerfest. They were exiting the parking garage when one of the decorative concrete panels—specifically, the panel designated as 56AL, weighing approximately 13.5 tons and measuring over thirty-three feet long—fell from the structure. It crushed Jared Kellner, killing him. It also caught Amy Wosinski in the back of the left heel, which ultimately led to her lower left leg being amputated below the knee. Eric Wosinski suffered abroken right leg in his escape from the falling panel. All of this was witnessed by Steven Wosinski.
¶9 Milwaukee County, which owns O'Donnell Park, closed it immediately after the accident, and began an investigation to determine the reason that Panel 56AL had fallen. The investigation focused on the manner in which Panel 56AL, as well as the all of the other concrete panels in the structure, had been constructed and installed. O'Donnell Park was closed for over a year while this investigation ensued and the necessary repairs were completed.
¶10 Milwaukee County began the construction process on O'Donnell Park in the late 1980's, hiring J.H. Findorff & Sons, Inc. (Findorff) in July 1987 as the construction manager for the project. Milwaukee County also hired ACS to manufacture and install decorative concrete panels that hung on the side of the structure. ACS, in turn, hired Dietz Engineering, Inc. (Dietz), to design those panels. The panel design specifications prepared by Dietz indicated the size of each panel, the reinforcing of the panels, and the hardware that was to be used to connect each panel to the structure.
¶11 When investigators examined Panel 56AL after the accident, it was found that it was not manufactured and installed by ACS in accordance with Dietz's specifications. Dietz had called for a specific type of connector to be installed in the panel, a stainless steel coil rod into which a threaded pin would be inserted. Part of the pin was to protrude from the panel and connect with a stainless steel cup, referred to as a "sleeve," in the underlying concrete wall.Dietz's plan indicated that there should have been four connectors threaded with pins in each panel to be dropped into the sleeves in the concrete wall. The sleeves would then be filled with cement to form four solid connections. During the investigation, it was discovered that the coiled connectors specified in the plans had been replaced with smooth receiving tubes; thus, the threaded pins could not be inserted into the connectors and...
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