Peter v. Sprinkmann Sons Corp.
2015 WI App 17
| Wis. Ct. App. | 2015Background
- Donald Peter worked as a maintenance machinist at Pabst Brewery from 1959 for over 36 years; Sprinkmann contracted to install, maintain, and repair asbestos pipe insulation at the Brewery.
- Donald was diagnosed with malignant pleural mesothelioma in May 2012 and died in October 2013; his wife Pamela amended the complaint to add a wrongful-death claim.
- Plaintiff alleges Donald’s mesothelioma resulted from exposure during Sprinkmann’s installation, removal, and routine maintenance of pipe insulation at Pabst.
- Discovery showed Sprinkmann performed ongoing, daily repair/maintenance work at Pabst (including at least one employee onsite full-time) and produced many job files documenting maintenance work.
- Sprinkmann moved for summary judgment asserting (1) lack of causation and (2) Wisconsin’s construction statute of repose, Wis. Stat. § 893.89, barred the claim; the circuit court granted summary judgment on the statute-of-repose ground.
- The court of appeals reversed the dismissal, holding the statutory damages exception did not apply but that Sprinkmann’s work was maintenance (not an "improvement to real property"), so the statute of repose does not bar the claim.
Issues
| Issue | Peter's Argument | Sprinkmann's Argument | Held |
|---|---|---|---|
| Whether the § 893.89(4)(d) "damages sustained before April 29, 1994" exception saves the asbestos claim | "Damages" occurred at time of asbestos exposure (physical injury long before 1994); experts say lungs were damaged when fibers were inhaled | "Damages" means legally actionable damages; plaintiffs had no actionable claim pre-1994 because mesothelioma manifested decades later | "Damages" means legally compensable damages (actionable before 4/29/1994). Exception does not apply because no actionable claim existed pre-1994. |
| Whether Sprinkmann’s work was an "improvement to real property" under § 893.89 | Work at Pabst was routine maintenance and repairs to pipe insulation (daily upkeep), not permanent additions | Installation/installation-type activity (insulation) qualifies as an improvement and thus falls within the statute of repose | Work was routine, ongoing repairs/maintenance (not a permanent improvement). § 893.89 does not bar the action; summary judgment reversed and remanded. |
Key Cases Cited
- Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 568 N.W.2d 31 (Ct. App. 1997) (summary judgment standard review)
- Thomas v. Iowa Nat'l Mut. Ins. Co., 132 Wis. 2d 18, 390 N.W.2d 572 (Ct. App. 1986) (definition of "damages" as legal compensation)
- Kohn v. Darlington Cmty. Schs., 283 Wis. 2d 1, 698 N.W.2d 794 (2005) (test for "improvement to real property" and scope of statute of repose)
- Kalahari Dev., LLC v. Iconica, Inc., 340 Wis. 2d 454, 811 N.W.2d 825 (Ct. App. 2012) (purpose of construction statute of repose)
- Hocking v. City of Dodgeville, 326 Wis. 2d 155, 785 N.W.2d 398 (2010) (definition of maintenance/upkeep)
- Wenke v. Gehl Co., 274 Wis. 2d 220, 682 N.W.2d 405 (2004) (statutory interpretation principles)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (2004) (rules of statutory construction)
- Graver v. Foster Wheeler Corp., 96 A.3d 383 (Pa. Super. Ct. 2014) (rejecting judicially created asbestos exception to repose statute)