*1 Construction, Inc., United Concrete & Plaintiff-Appellant,
v. Concrete, Inc., Red-D-Mix Defendant-Respondent-Petitioner, Company and Allied Mutual Insurance Nationwide Defendants-Respondents. Company, Insurance Supreme Court argument April No. Oral 2013. 2011AP1566. July Decided 72WI 807.) (Also reported 836 N.W.2d *4 For there defendant-respondent-petitioner, Kalny, Kowalkowski, Frank James by were briefs Kuelthau, S.C., Davis & Bay, argument Green and oral Frank Kowalkowski. *5 plaintiff-appellant, by For the there was a brief Epiphany Appleton, Law, LLC, Valerie J. Revnew and argument by and oral Valerie J. Revnew. many
¶ 1. GABLEMAN, MICHAEL J. J. are There vagaries in However, the law. deal we here with the Specifically, concrete. certain batches of concrete that (United) pur- Construction, Concrete and Inc. (Red-D-Mix) chased from Concrete, Red-D-Mix Inc. and complains now were defective. United used the concrete (known pour industry outdoor installations in the "flatwork") properties. problems at various After arose assignments installations, with the United obtained property from number of the owners,1who transferred putative right their to sue Red-D-Mix over to United. right, filing complaint United then exercised that contract, tort and in both its name own and in that of assignees, alleging violations of Wis. Stat. (2011-12).2 § granted 100.18 The circuit court3 sum- mary judgment grounds Red-D-Mix, on the through property United's claims owners and its tort claims were barred doctrine, economic loss proceed alleg- its 100.18 claim could not because edly actionable statements constituted and be- public cause United was not a member of the within the 1Following appeals parties, the court of and the we will also occasionally property call the owners "homeowners." 2All subsequent citations to the Wisconsin statutes are to the 2011-12 provisions edition. None of the relevant instant changed any pertinent case have respect since the underlying giving dispute conduct rise to the occurred. 3 The John Honorable A. Des Jardins presiding. meaning damages statute, of the had been insuffi- ciently support remaining established to claims. *6 Disagreeing entirely judge, with trial the court of appeals grounds. all reversed on appeals
¶
below,
2. As shown
the court of
inwas
wrong
the main correct, but reached the
result in one
respect
imprecise
and was overbroad or
in
wit,
others. To
appeals properly
the court of
reversed the circuit court's
ruling regarding puffery, though
incorrectly
deter-
always question
mined that
of fact for the
juiy.
appeals
issue,
On the
next
court of
erred in its
through
determination that the claims United asserted
assignments
exceptions,4
valid, when,
were
with two
the economic loss doctrine barred the homeowners
suing
from
Red-D-Mix and thus barred United from
suing
Finally,
appeals rightly
in their name.
the court of
finding
reversed the circuit court for
all the asserted
damages speculative, though
doing
prematurely
in
so it
interpreted
legal significance
assignments.
of the
language construing
assignments
Its
is overruled.
Doughboy Recreational, Inc.,
See Griebler v.
2dWis.
(1991) (overruling specific
547, 556,
¶ it, 3. When the case is returned to the circuit through court is directed to dismiss the claims asserted assignments, remaining and to allow the claims to proceed Accordingly, part, to trial. we affirm reverse part, and remand with instructions.
I. FACTUAL BACKGROUND summary judg- ¶ 4. Because this case is here on light ment, we recite the facts most favorable to 4 See note 19. infra summary judgment, party opposing
United, the
allegations.5
accept
Bros., Inc.
true its
Kraemer
v. U.S.
Co.,
555, 567,
2d
United with job During complained time, various sites. generating product to Red-D-Mix that its was excessive thereby damaging water,"7 several of United's "bleed including projects, a number of basements. When the problem satisfaction, it was not resolved to United's relationship its business with Red-D-Mix. severed unhappy price increases at its supplier, Concrete, United Red-D- new M&M contacted inquire possibility restoring Mix to relationship. into the *7 Clark, for Red-D-Mix
John a salesman who company during had not been with the the earlier water, difficulties with bleed came to United's offices at request. Timothy Hippert, There, he met president United, Kluess, of and Kevin United's fore- sought Hippert and man. Kluess assurances from Clark problems had that the with the concrete been resolved guarantee high-quality, and that Red-D-Mixcould now product. assurances, durable When Clark delivered those companies the two entered into a new contract. 5 reason, ungainly "allegedly" For this we will not insert an every allegation. thereby imply before do not We truth of any factual assertion. 6 appeals opinion only The briefs and court of refer to concrete, cement, so we do same. explained summary judgment materials, in As "bleed essentially seeps water" is excess water that out of concrete after poured testimony has been rests on the surface. There was depositions upper layers taken at can make the such water likely prematurely degener of the concrete weaker and more to ate. good
¶ 7. The will was short lived. Customers began alerting soon United to in defects their outdoor pitting, concrete installations, such as discoloration, crumbling, spalling.8 response, United asked property sign assignment rights. owners to an of The assignment signatory indicated that "desires to any rights they [sic] may arising transfer and all have supply purpose from the of defective concrete for the prosecution resolving otherwise the claims as and/or by" seen fit United. It informed the reader that "the legal signing Assignment fully effect of this and forever extinguishes any and all claims which has or he/she might against any company supply havе had for the performed by defective concrete for use flatwork third-party except as of the date of execution as ex- pressly assignment reserved." The then concluded, "As- signor conveys, assigns, transfers and sets over unto Assignee, rights any all causes of action claims and/or any any way nature, whether unknown, known or relating outstanding claims that exist in his/her Ultimately, property acquiesced favor .. . ." owners request. any to United's these, Of 20 did so without conditions. Of the other two, one, the Michaels, insisted rights on a reservation other, return. The Beyers, agreed sued United in small claims court and assignment part stipulated of a dismissal, in exchange promising repair for United to either damaged pay replacement. concrete or for its
II. PROCEDURAL HISTORY assignments ¶ brought Its hand, in suit through assignments against in its own name and 8 "[bjreak spall To is to fragments; off... in splinter, chip." (6th 2007). Shorter English Oxford Dictionary 2935 ed.
595 County Outagamie Court, de- Circuit in Red-D-Mix manding damages, com- and final amended its third express plaint, war- contract, breach of for breach of representations warranty, ranty, implied false breach of § negligence, indemnification, 100.18, Stat. under Wis. summary judg- moved for Red-D-Mix and contribution.9 damages speculative arguing because were ment, that any repairs. yet performed The motion United had negligence argued barred claims were that the further any harm befell doctrine, loss as no under the economic property itself, the concrete other than individuals or growing involving grass from minor incidents aside two driveway tear on a floor. and abnormal wear and a assigned respect whole, Red-D- to the claims as With they should all be dismissed be- Mix contended that in Linden v. Cascade Stone cause, under our decision 189, Co.,Inc., 606, 2d 699 N.W.2d 113, 2005 WI 283 Wis. only Red-D-Mix, United, not could sue owners nothing assign. Lastly, Red-D-Mix therefore had summary judgment, that submitted, in its motion for on Stat. 100.18 claim was based United's Wis. public" United was not a "member of and that protected failed as a statute, and thus its claim grounds.10 matter of law on both or less embraced in 9. The circuit court more holding case, full Red-D-Mix's view of the 9 counterclaim, alleging that United was Red-D-Mix filed a respect negligent in various actions it took with itself concrete. The counterclaim is not before us. 10 assign that the argued Red-D-Mix also to the circuit court by consideration and that no warran unsupported ments were former, mentions the given. It does not raise the ties were only without citation or elaboration. passing latter footnote Gracia, neither. See State v. 2013 WI We will therefore address ("[W]e n.13, 2d do not 345 Wis. 826 N.W.2d (citation omitted). usually undeveloped arguments.") address *9 through assignments claims made and all of the tort prohibited by claims were the economic loss doctrine,11 representations forming that the the basis for the Wis. § being Stat. 100.18 claim were im- were properly brought by public, a non-member of the alleged dаmages that United had not sufficient proceed to trial. Reversing, appeals excep-
¶ 10. the court of took point. tion to the circuit court on each United Concrete Constr., & Concrete, Inc., Inc. v. Red-D-Mix No. (Wis. unpublished slip op. App. 2011AP1566, Ct. damages June 2012). The court first concluded that were overly speculative summary judgment purposes present because United "could sufficient evidence to jury damages enable a reasonable to award in an supported by Id., ¶ amount the evidence." 10. It then determined that Linden did suit, not foreclose the reasoning "[w]hile may the homeowners have had rights against assign, Assignments no Red-D-Mix to strip right neither from United its to sue Red-D-Mix protect [the] potential nor United from homeowners' Turning Id., ¶ breach-of-contract claims." § appeals Wis. Stat. claim, 100.18 the court of consid- summary judgment disposal, ered the issue unfit for questions any, role, remained as to if "what Clark's being salesperson play credibility, a 'new' should in his 'puffing'. said, what he and whether it constituted . . ." Finally, panel Id., ¶ 14. also instructed the circuit court that the issue of whether United was a member of public contemplated by "pre- in the sense 100.18 litigation regarding Extensive various insurance issues also took place at the circuit court. presented Those issues have not been for our review. appeal United did not the dismissal of its tort claims so we do not discuss them further. omitted). (citation question Id., ¶ 16 fact."
sents
*10
jury
"[a]
еxplained
Elaborating,
reason-
that
the court
relationship
particular
ably
existed
that a
could find
past
of their
because
United and Red-D-Mix
between
reasonably
dealings;
just
find that United
could
through
public'
Red-D-Mix,
when
a member of 'the
was
such,
Id. As
business anew."
Clark, solicited United's
properly
fact,
the trier of
submitted to
the matter was
summary judgment. Id.
the court on
not
granted
petition for review.
¶
Red-D-Mix's
11. We
appeals'
Finding
decision
error in the court
no
finding
errors
trial,
but
several
afford United
part,
part,
analysis,
and remand
reverse
we affirm
instructions.
OF REVIEW
III. STANDARD
summary judgment
¶
noted,
As
review a
12.
we
approach
inde
instances,
the issues
order. In such
we
applying
pendently
the same
courts,
of the lower
while
Drive,
Admanco,
did.
Inc. v. 700 Stanton
standards
LLC,
14,
586,
326 Wis. 2d
786 N.W.2d
2010 WI
any
require us
Those standards
to answer whether
759.
dispute rendering
genuine
are in
issues of material fact
doing,
necessary.
Id.,
examine the
a trial
28.
so
we
considering
summary judgment
the facts
record while
party opposing
light
in the
most favorable to
assuming
summary judgment
United —and
here,—
allegations.
Bros., Inc.,
Kraemer
89 Wis. 2d
truth of its
single
If
reasonable inference to be
at 567.
there is but a
undisputed facts, and if that inference
from the
drawn
summary judgment
proper.
movant,
favors the
Boss,
332, 338,
2d
IV DISCUSSION challenges appeals ¶ 13. Red-D-Mix court 1) grounds: decision four main on that was not public member of vis-á-vis Red-D-Mix and conse- quently bring pursuant cannot suit Wis. Stat. 2) misrepresentations that 100.18; were mere prohibited by and therefore statute; that 3) by claims some are barred the economic loss 4) doctrine; and that all claims are foreclosed *11 speculativeness requested damages. of the Wehold that preserved properly by the was first issue Red-D-Mix petition accordingly in its for decline review issue, address it. to the As second we conclude that the falsity question truth or the statements in was § ascertainable, and thus 100.18 claim the should have respect been submitted to a fact. trier of With agree third we issue, with Red-D-Mix that United in cannot file suit the homeowners' names because have no of action the cause under economic loss doc- speculative- trine. final hold issue, On the we that the damages grant prompted ness of should not have summary judgment, language but from we overrule appeals' opinion prematurely construing court of legal significance assignments. of the §
A. UNITED'S WIS. STAT. 100.18 CLAIM SURVIVES SUMMARYJUDGMENT summary judgment ¶ 14. Red-D-Mix asserts that correctly granted § was Wis. claim on the Stat. 100.18 public, because was member not a of the as misrepre- provision, required and because puffery a matter of law. mere here were sentations argument, failed as Red-D-Mix reach the first Wedo not reject petition review, and we for raise it represent puffery. do not one, as the statements second Argument Its Failed to Preserve 1. Red-D-Mix the Public a Member of That United Is Not § ¶ creates civil liabil Stat. 100.18 15. Wisconsin representations. ity fraudulent for certain kinds of exposes corporation to here, it a essence, as relevant damages if it untrue statements to sell uses lawsuits public. claim under the To make out a its wares to the plaintiff alia, therefore, show, must inter statute, public representation to the the defendant made a "that obligation. an . . ." State v. the intent to induce Labs., 37, 510, 341 Wis. 2d Abbott 2012 WI added) (citation omitted); (emphasis see N.W.2d Corp. Sales, Mach. K&S Tool & Die v. also Perfection Inc., ¶70, 20, 301 Wis. 2d 732 N.W.2d792 2007 WI public" (collecting construing of the cases the "member 100.18). language By petition "[i]f [for supreme rule, court granted, argue
review] parties cannot raise or petition unless ordered issues not set forth *12 (Rule) 809.62(6). § by otherwise the" court. Wis. Stat. petition review, In Red-D-Mix framed its issues for "question question as, it is a of law or a first, whether made a seller of a of fact whether a statement misrepresentation product support is sufficient to a puffery" and, second, claim or is instead inactionable [to] permissible circum- it is for "a contractor whether a action it vent . . . Linden . . . and initiate cause of belongs nothing admits to its . It customers . . said in either that section or its discussion section about being public. only Indeed, a member the the men- petition appears tion of that issue the for review procedural history. granting its recitation of the the petition, parties we did not instruct to brief or any argue contrаry, Quite additional issues. we specifically informed Red-D-Mix that was not to petition argue "raise or issues not set forth in the 809.26(6). § review," cited to forgive ¶ 17. Red-D-Mix now asks us to the omis- public" sion because the "member of the issue "is an § [its] [Wis. Stat.] essential claim," element 100.18 proposition which be can reduced to the "that when the undisputed, facts are Court, law, as a matter of § if should decide a 100.18 claim must be dismissed." As says, result, Red-D-Mix "the issue whether the public
statement was made to the is before this Court along every misrepresentation other element of unpersuaded. that United fit to saw address." We are questions manifestly The two are discrete. The state- puffery ments could be made to a member of public; they could be made to a member public puffery; they but not could be neither or both. petition The issue raised in for review and length. public discussed The member of the issue is completely adopt interpretation To absent. Red-D-Mix's (Rule) 809.62(6) of Wis. Stat. would be render provision meaningless. party guarantee A could then any mentioning by simply our review of issue nakedly statute associated with a certain claim and asserting ruling lower court erred in its on that statute, even when there were numerous unrelated stemming issues from the Such con- same statute. requires struction this court do all the labor reason- *13 accept ably expected it. counsel, and we do not Cf. ¶ Blackburn, n.11, 2d 595 227 Wis. v. Johnson (1999) (declining issue to address an not N.W.2d though petition review, for in the even raised as the raised issue to the same statute unraised related issue). question chose to exclude the 18. Red-D-Mix public member of from the
whether was petition The we honor that choice. court review, disposition appeals' of the matter stands. Puffery The Statements Were Not
2. Contested thought The court the comments the circuit meeting Clark, made salesman, at his Red-D-Mix puffery matter and as a as a of law result United were support Stat. claim. Con- could not a Wis. 100.18 versely, appeals thought it could not court of be summary were on determined whether judgment at all. take a third route: the remarks We puffery, that conclusion could should were but during judge been reached the trial sum- have judgment proceedings. mary a) Clarifying Misrepresentations at Issue dispute, getting ¶ 20. Before into the of the merits exactly important clarify which statements are it is Beginning court, the circuit Red-D-Mix has at issue. consistently misrepresenta- position taken the that the only Clark's to the effect tion consisted statements "good Red-D-Mix's was and durable." that Notably, concrete position Red-D-Mix takes the court *14 puffery analysis into should not factor its the fact that general Clark, in addition to the more endorsement of product, specifically pre- reassured United that its vious concerns with concrete had been addressed particular problems flowing and those i.e., the issues — longer occurring. from excessive bleed no water —were support, Red-D-Mix notes that United offered no complaint in averments its third and final amended regarding exchange meeting previous an at the over the problems United had encountered with Red-D-Mix's product. appeals, Like the circuit court and the court of we take a broader view than does Red-D-Mix. pleading As a notice state, Wisconsin law requires only complaint that a "set forth the basic facts giving Apple LLP Dev., rise the claims." Hill Farms v. App Price, 17, 2012 WI Wis. 2d 802.02(l)(a)). (citing pur N.W.2d 914 pose Wis. Stat. The complaint pleading jurisdiction of a in a notice is to provide "sufficient detail" such defendant, "that the and plaintiff can court, obtain a fair idea what the complaining, can see that there is some basis for recovery."Midway Lodge Motor v. of Brookfield Hartford (Ct. Grp., App. Ins. 23, 35, 226 Wis. 2d 593 N.W.2d852 1999) (internal omitted). quotation marks and citation
¶ 22. United satisfied that standard here. While it is true that United did not characterize Clark its complaint speaking specifically to the bleed water problems past, it had in the it did alert Red-D-Mix to misrepresented quality accusation that Clark had company's meeting. By his at concrete the 2007 summary judgment pleadings time filed, upon were Red-D- Mix was well aware of United's reliance Clark's purported problems declaration that the bleed water motion Indeed, in Red-D-Mix's own rectified.
had been excerрts summary judgment, from a it attached Hippert, president deposition United, at with abundantly seek- that he recalled made clear he which ing guarantee meeting from them that at the "some problem" they the bleed that water had solved response had cured Clark "assured us that light Unsurprisingly, problems of that .. .." their transcript, significance attorneys of the debated the during summary judgment length assurance appeals hearing, the circuit court and court of and both more than ad- it into account. Red-D-Mix had took prepare equate its defense the statements notice of *15 respond it did case, both of which and to United's pleadings thoroughly. and is defect in we There no allegations incorporate our the statements into analysis. puffery
b) Puffery The Statements Were Not Having ¶ issue, resolved threshold we why demonstrate Clark's statements were will now why puffery, held court should have as and circuit summary judgment. much at background. begin The 24. We some brief system. concept legal puffery old our See of as Puffery Padfield, Is Material to Investors? Stefan J. Emp. Maybe Them, Ask 10 U. Pa. J. Bus. & WeShould (2008) (tracing puffery 339, of L. 350-53 the roots beware"). "buyer emptor, of or ancient doctrine caveat succinctly early summarized its An American case recognizes underlying "[t]he fact that rationale: law naturally qualities will the value and men overstate they this, sell. All men know the articles which have to right upon buyer rely has no such statements."
604 (Mass. 1887). Bangs, Kimball v. 11 114 113, N.E. Some years Judge categoriz later, Learned Hand elaborated, ing talk" "some kinds of as that "which no sensible man seriously, takes and if he does he suffers from his credulity. scrupulously If all honest, we were it would party usually so; but, is, not be as it neither believes says opinions, what the seller about his own and each Mfg. knows it." Vulcan Metals Co. Co., v. Simmons 248 (2d 1918). 853, F. 856 Cir. jurisdictions,
¶ 25. Consistent with other Wiscon- adopted principles sin has these same essential into its salesperson engages state, common law. our gives exaggerations when he voice to "the rea- sonably expected degree to be aof seller as to the quality product, falsity of his the truth or of which precisely cannot be determined." State v. Am. TV & Appliance Madison, Inc., 146 292, Wis. 2d 301-02, (1988)(internal quotation 709 N.W.2d marks and omitted). Exaggerations citation subject of this sort do not speaker liability under Wis. Stat. 100.18 convey only opinion because the seller's are capable being "not substantiated or . refuted. . ." Harley-Davidson, Inc., Tietsworth v. 44, 2004 WI (internal quotation Wis. 2d 677 N.W2d omitted). marks and citation *16 promise ¶ 26. Clark's to United that Red-D-Mix reasonably had remedied the bleed water issues cannot regarded puffery be as under the aforementioned defi- problem, nitions. Excessive bleed water is a technical with a technical definition and a technical solution. To gather parties information on this issue, technical both experts investiga- retained who undertoоk extensive precise composition tions into the of the concrete used
605
properties,
elaborate
and then submitted
in the relevant
nothing
composition.
reports
in the
There is
on that
properly
suggest
fact,
instructed
that a trier of
record to
testimony,
by expert
would be unable to
and assisted
acceptable
an
Red-D-Mixused
combi
whether
ascertain
ingredients
or did not.
in its concrete
nation of
Cf.
States,
598,
92 Fed. Cl.
Fund Ins. Co.v. United
Fireman's
(2010) (discussing
bleed water
627, 657
excessive
occurring
problems
amongst
as
other technical
concrete
concrete).
composition
particular
result of
a
pressed
hypothetical
a
fact,
hard
to invent
we would be
amorphous hype
vague
less similar to the
statement
specific
typically
reference
as
than a
classified
specific
problem
relationship
specific
in a
between two
a
industry.
e.g.,
highly specialized
parties
See,
a
(classifying puffery
Tietsworth,
270 Wis. 2d
43
masterpiece"
"pre
product
"a
and of
claims that
was
(judging
quality");
TV,
2d
Am.
146 Wis.
at 299
mium
puffery);
product
to be
of a
as "the finest"
endorsement
Papers,
Dorr-Oliver,Inc.,
2d
Inc. v.
Wis.
Consol.
1989)
(Ct.
(explaining why
App.
an
594, 451 N.W.2d456
product
"long
promising that a
had a
advertisement
puffery).
equipment life" was
application
straightforward
To attack this
emphasizes
law, Red-D-Mix
two facts:
well-established
1)
company during
that the salesman did not work
2)
problems;
problems
the earlier
that
earlier
projects.
related to basements and not outdoor
Neither
any bearing
puffery inquiry.12
on the
has
sup
statements
cannot
Red-D-Mix also insists
only to
Stat.
looked
port Wis.
100.18 action because
future,
past.
specific
Not so. Clark told United that a
longer
historically was no
an issue.
problem that had occurred
question
fixed a
is a factual
about
Whether Red-D-Mix
defect
permit
past, not
the future. To hold otherwise would be to
*17
explain,
¶ 28. To
the reason that a valid defense of
§
puffery defeats a Wis. Stat.
100.18
is
suit
that the
part
defense undermines
of the statute's first element:
misrepresentation
that the defendant related a
of fact.
TV,
Am.
¶ 29. Our conclusion is bolstered the absurd pernicious consequences and gave that would follow if we stamp approval theory.
our to Red-D-Mix's To Judge explication, salespeople reiterate Hand's should punished trying improve not be their sales suppliers to make whatever outlandish claims could dream up products to move lawsuit, their fear of every without because such categorized claim could be relating one to the future product sale of the present and not condition. 13United has also conveyed contended that Red-D-Mix false information in violation of Wis. Stat. when Clark 100.18 told Hippert using plant Kluess that it was a new and the Concrete, same supplier as M&M the company United turned to after it ended its relationship earlier with Red-D-Mix. Our analysis specific promise on focuses the bleed water problem remedied, had been promise as that lies at heart of closely case. These other related statements are not for the same reasons. *18 seriously, if he man takes no sensible
claims "which credulity." Co., Metals from his Vulcan does he suffers surely though, a naive, so for at 856. It is not F. speak expect salesperson potential to the customer to a company, represents, his he on behalf of truth when cropped up past problem specific in the that that had a relating parties, to the same the same two between product, Enters., v. J.J.B. had been solved. Cf.Radford (Ct. App. Ltd., 534, 544-45, 472 163 Wis. 2d N.W.2d 1991) (holding engage in a did not that boat-owner purchasing the he assured the individual when dry all rot him its hull was sound and boat from that removed). companies A in which are had world been representatives liability make when their relieved of in Clark made is a world which statements of the sort every keep companies their incentive to sales- have products, people the flaws in their in dark about the confidently salespeople every have incentive to many promises can, as while deliver as unfounded consequences. That is not the "sensible man" suffers the developing the common law courts envisioned world concept puffery. the long dispatching We need not on Red- dwell problems the other line of attack: that earlier
D-Mix's
giving rise
while the defects
involved basements
present
litigation
projects.
involved outdoor
For one
go
thing,
distinction,
truth,
its
does
this
whatever
only
puffery.
if
towards
Even Clark did mean
that
longer excessively bleeding concrete
no
such
was
way
falsity
damage basements,
the truth or
of that
as
just
capable
statement
of ascertainment as
falsity
general
a more
truth or
assurance that
bleeding overmuch, indoors
out-
concrete was not
or
summary judgment
any event,
ma-
And,
doors.
beyond
that United believed
terials made clear
doubt
making
general
Clark was indeed
that
assurance,
more
proven
and that
the assurance was
untrue
supplied.
deterioration
concrete Red-D-Mix
excerpted transcript
Hippert's deposition
that
summary judg-
Red-D-Mix attached
to motion
problem
he
ment,
inability
characterized the earlier
as the
"get
pour
concrete that we could
and finish
bleeding substantially"
without
and then elaborated
general,
bleeding,
primary
that "in
it's
but our
focus was
testimony
plain
on basements." Such
makes
bleeding problem
believed
earlier
was the
*19
afflicting
same
the one
the later deliveries of con-
problems
crete, and that
those later
contradicted
promise. Incontrovertibly,
Clark's
then, Red-D-Mix had
opportunity
to rebut the claim before the circuit
argument
court, and this
is meritless. The statements
puffery,
were not
and United
a
therefore had colorable
§
claim under Wis. Stat.
100.18.14
c) Puffery
Always
Is Not
a
Question
Fact,
of
Nor One of Law
question
subject
¶ 31. One final
remains,
on the
namely,
puffery
judge
whether
is a matter for the
summary judgment or the
trier
fact at trial. The
by
foregoing analysis: depends.
is
answer
dictated
our
it
appeals
¶
Below,
32.
court
made the blanket
"[wjhether
puffery
assertion that
question
a statement
is
is
Concrete,
of fact."
2011AP1566,
No.
14
argues
Red-D-Mix
in the alternative
if the
that
state
puffery, they
grounds
ments were not
were inactionable
on
opinion.
constituted
reject
For
same reasons
we
its
that
argument,
puffery
reject
opinion argument.
we
v.
Radford
Enters., Ltd.,
534, 544-45,
J.J.B.
2d
163 Wis.
610
day,"15
"opposite
on
there is
of
no defensible
view
support
record to
the conclusion that Clark's state-
puffery.
purposes
summary
ments
For
constituted
of
judgment,
promised
Red-D-Mix assumed that Clark
previous issues with bleed water had been
resolved.
ruling
motion, then,
on the
the circuit court had no
actually
need to wonder whether the statements had
credibility
made,
been
nor to
Red-D-
consider
of
credibility
Mix's
ployees
salesman versus
of
em-
United's
any
province
or
other matter within the sole
e.g.,
See,
the trier of fact.
Fischer v. Cleveland Punch &
Co.,
92,
Shear
appeals upon relied lone footnote from one of its previous opinions. Hein, See Lambert v. 218 2d Wis. (Ct. 1998). App. n.4, 582 84 N.W.2d Its reliance misplaced. footnote, was In the cited the court of appeals judge correctly jury held that trial let the phrase "quality construction," consider whether the industry, puffery. used in the real estate was Id. It 'puffery' may further held that "whether be construed warranty depends objectivе as a on the context in which
"15 'Opposite Day' holiday, usually is a fictitious celebrated by school-aged children, day which statements on that are false, intentionally opposite by but taken to mean the listeners the holiday being Attorney aware that celebrated." Grievance (Md. 2007) Siskind, Comm'n Md. v. A.2d 343 n.9 (citations omitted). *21 at in the case bar is made" and that the statement of sum- the granting affidavits" "competing precluded in conflict with Id. Neither holding is mary judgment. may puffery The latter conclusion —that today. our own in contexts —does not speak a certain warranty also be in first The puffing place. a statement is whether in a particular phrase whether former conclusion —that puffery rightly was industry a constituted particular with our jury harmony perfect determined —is question is sometimes puffery that position own at summary judgment, for disposition appropriate Lambert does not impose an absolute bar sometimes not. motions for on dealing puffery on circuit courts appeals and the court of below judgment, summary narrow, fact-specific hold- expanded should not have as it did. ing here The we take is consistent with approach A other precedent jurisdictions.
the well-reasoned from a drawing bright number of courts have refrained it a line around terms of whether puffery presents do, law, or of as we that recognizing, of fact question it a of fact can times be usually question while law, and that courts should the usual apply question figure standard to out which label summary judgment See Donald Braman et in a closely given fits more case. Naturalism, Punishment al., Some Realism About 77 U. (2010) L. of the issues 1531, 1571 ("Many Rev. n.146 Chi. of law rather ... are resolved as matters puffery often Cos., fact.") v. Farnam added); Snyder than (emphasis (D.N.J. 2011) (observing 792 F. 2d 723 Supp. for the normally jury") "is fact question added) (internal marks and citation (emphasis quotation Peoria, Redmac, Inc. v. Computerland of omitted); ("Whether 1986) (Ill. the issue App. N.E.2d Ct. *22 puffery] may [of is of law or fact debatable; one be generally question however, it is considered a of added) (citations omitted). fact(emphasis A sub majority resolving ques puffery stantial of decisions the purport apply they simply tion not to a rule; do blanket specific determine, with reference the facts and alle gations general summary judgment, and the rules of question whether the can a be resolved as matter of law requires the court or instead the of consideration jury. e.g., See, Park Rise Ass'n Homeowners v. Resource (Colo. 2006) App. Co., Const. 155 P.3d 435 Ct. ("Turning phrase 'quality reject construction,' we argument phrase that, law, ... as matter of ....") puffery added); (emphasis be cannot treated as Litig., Commc'ns, re 3 Level Inc. Sec. F.3d 1331, 1340 667 (10th 2012) ("Many plaintiffs Cir. the statements of complaint nothing are, law, as a matter of more than added). puffery.") (emphasis Though explicitly
¶ 38. such decisions en- do puffery ordinarily dorse our cоnclusion that is a matter of but fact, law, sometimes one of follow the same treating puffery rule we set forth here. For rather than always question they simply fact, never a either or of apply summary judgment the time-tested standards to specific sum, under motions review.16In the circuit court held as a should have matter law that jurisdictions other employ language To extent do distinction, categorical a more implying respectfully we dis See, e.g., agree Newcal with them for reasons stated. Indus., Solution, (9th Inc. v. Ikon 513 F.3d Office 2008) ("[T]he Cir. alleged determination whether an mis representation of fact' or is 'is statement instead 'mere may puffery' legal question is a be resolved" without (internal involvement) jury's quotation marks and citation omitted). summary judg- purposes was not
remark to do so.17 ment, on remand it instructed REMAINING CLAIMS SURVIVE B. UNITED'S IN PART JUDGMENT SUMMARY Having disposed Wis. Stat. United's § we left with the balance of claim, 100.18 are complaint. 100.18, Recall that addition *23 upon contract, of breach of breach relied theories of implied warranty, warranty, express indemni- breach of brought These claims were fication, and contribution. through assignments from name and its both in its own all of them The circuit court found the homeowners. summary judgment either the on account of failed at speculativeness re- doctrine, of the economic loss the damages, appeal, quested both. On the court or opposite point. appeals the сonclusion on each reached partly partly incorrect, and Both courts were compelling correct part. part in to affirm in and reverse us Through United's Claims Assignments Impermissible are the explaining why ¶ 40. Before the claims United through assignments impermissible, the are asserted pause concurrence's unfounded and we rebut the exist. unshared assertion that no such claims that the statements were not Our determination summary United judgment purposes does mean that automatically its 100.18 claim. That prevails on Wis. Stat. by jury, still parties be the and the are determination will made jury regarding the entitled to submit evidence to the whether made, they mis actually were whether constituted statements statute, and on. representation under the so complaint explicitly sure, 41. To be the did not suing through indicate that United was Red-D-Mix the assignments in name. Nevertheless, the homeowners' everyone has that been the uncontested view in- inception present day. volved the from the case its parties proceeded court, circuit the both the understanding suing that was United both in own name and homeowners. The court circuit understanding summary itself memorialized that in its judgment dismissing order, "all claims asserted through assignments property .. . from added.) (Emphasis . . . ." All owners the briefs appeals being through court of refer to claims filed assignments, appeals' opinion as does the court petition party for review. Neither denies at this late through date, ever, nor did that United filed claims assignments in the homeowners' name. attorney among every judge ¶ 42. Alone or who participated case, has ever in this from its commence- today, ment to Chief Justice Abrahamson the two justices joining concurrence, her believe United did not sue the homeowners' name in addition to its *24 Contrary suggestion, own. adopting to their are here we depiction
"Red-D-Mix's mistaken com- the plaint," adopting depic- ¶ concurrence, 68, we are the by attorney tion shared the who the drafted filed complaint, attorney responded it, the who the circuit judges it, court that ruled on and the three on court the appeals panel Perhaps heard case who the before us. the on most definitive statement the matter comes from lawyer represented throughout the who has response proceedings, these in who wrote her to Red- judgment summary motion D-Mix's that her client "asserting was causes of action in its name well own as property as on the as alternative owners behalf of added.) unequivo- (Emphasis recovery." This theories of signed person penned same who the cal sentence was why comprehend complaint It difficult to itself. is the justices concurring the understand believe complaint author. better than its of the nature unexplained ¶ assertions The concurrence's 43. notwithstanding, court or the circuit we do not believe guess filed parties claims were as to which will have given have that all of them name, in the homeowners' repeatedly throughout claims referred to those very including litigation, in the order the circuit court (noting paraphrases. id., ¶ See the concurrence summary judgment dismissed order the circuit court through assignments from asserted "claims ...."). property we The concurrence thinks owners telling "precise the circuit court should be more complaint ¶ parts Id., 70. it should strike." which the circuit court's not share its doubts over We do required, any precision abilities, think more or through already asserted dismissed the claims assignments presumably those knows what and thus are. claims misleading profoundly fashion, the con- agrees assign- suggests that the that United
currence herring" sense that the a "red in the same ments are Id., 66. United calls the uses that term. concurrence assignments herring" in its brief here with a "red damages, respect argument term was and the to its on argument. employed As context at oral the same point. agree United on that below, shown we anyone else, aside from the concur- United nor Neither assignments are a rence, has contended that ever herring" not sue that United did "red the sense oppo- Everyone through exact else has taken the them. every stage litigation. position site *25 helpfully ¶ 45. The concurrence attaches the com- plaint. might just easily We attach the numеrous making abundantly documents clear how novel the interpretation complaint concurrence's of that is. To just name a few of these documents, there is United's opposing summary judgment, brief the circuit court appeals, order, the briefs at the court of the court of appeals' opinion, petition and the for review. Trees should not have to die in order for us to substantiate point, such an obvious and uncontested so we decline to any appendices add of our own. Returning imagined from the concurrence's dispute, again
version of the case to the actual consider appeals opinion. reversing the court of the trial judge, appeals' analysis the court of entire of Linden occupies quoted two sentences, here in full:
The trial court concluded that the homeowners could own, sue Red-D-Mix on their rights so had no assign, property because a owner cannot sue a Linden, directly. subcontractor See 283 Wis. 2d 17, 32. ¶¶ While the may homeowners have had no rights against assign, Red-D-Mix to Assignments strip neither from right United its to sue Red-D-Mix protect nor United from potential [the] homeowners' breach-of-contract claims. Concrete,
United No. 2011AP1566, 11. This is a confusing thought. appeals rather train of The court of accurately up judge's reasoning, sums the trial but then proceeds ignore his conclusion. If the circuit court was in fact correct that the homeowners cannot sue rendering assignments Red-D-Mix, nullities, then summary judgment properly granted was in fact on the brought through assignments. claims resolving appeals Rather than issue, the court of only decided instead to address claims United's *26 by potential homeowners claims the own name and the "may" para- against in the words, the United. In other question graph quoted a crucial unan- above leaves uncertainty on remand. swered, and needless creates definitively. question ¶ the 47. Linden answers pre- loss held that the economic doctrine18 There, we suing in subcontractor tort a homeowner from a vents purely Linden, 606, 283 2dWis. for economic loss. Expounding, a ¶¶ that tort suit we determined 26-31. compo- product lie . . . the defective is "when does integrated prod- part or finished of an structure nent damage solely integrated product, an uct" the "to physi- only loss," than in rather which results economic (internal quota- injury. personal ¶ Id., 28 cal or harm omitted). otherwise, To we tion marks and citation hold damage require finding property reasoned, "would only virtually every the harm that case in which" prevent product itself, "and occurs is would serving legitimate function rules from their contractual (inter- governing ¶ Id., 27 commercial transactions." omitted). quotation nal marks and citation against ¶ The claims United asserted Red-D- 48. through squarely assignments Mix fit within the by governed Linden. United had a class of lawsuits Red-D-Mix, contract with and contracts with home- owners. No contract existed between Red-D-Mix only exceptions,19 With two dam- homeowners. 18 doctrine, interpreted by v. The economic loss Linden Inc., Co., 113, 606, 2d Stone 2005 WI 283 Wis. Cascade fully of appeals, N.W.2d raised and briefed at court was court, petition raised in the and discussed that and was fully properly here. It is before us. review and briefed suggesting in the record two There is evidence itself, properties damage did outside of the concrete one suffer itself, to the installed concrete and there were ages were short, or harm. In injuries personal no physical stood in the same as those dis- position three parties cussed Linden.20 in Linden abandoned Although plaintiffs court,
their contract claims before their case reached our id., nevertheless on the spoke unequivocally we these, subject. said, situations like we "homeowners *27 retain contractual remedies contrac- against general tors, in turn their against who have own remedies Id., say, subcontractors." 30. That is to contractual ¶ claims should be between brought parties privity contract. The and Red-D-Mix not in homeowners were and United cannot create a cause of action for its privity, customers where none lies.21 50. United to Linden on attempts distinguish
¶ First, it grounds.22 convincing. two Neither is principle involving grass growing driveway problems in a with land- scaping, involving carpet. unusual wear and tear to a At other summary judgment hearing, sug- counsel for Red-D-Mix gested could under the that these two claims not be dismissed Linden, prudent economic loss doctrine. It was a concession. See ("Economic damages" by the doc- 283 Wis. 2d 6 covered ¶ damage property.") ... to other trine "donot include losses due to (citation omitted). homeowners' claims are not Because these doctrine, damages and because as a barred the economic loss fatally speculative, general matter are not see infra goes should be included in the case that to trial. 20 only argued applies circuit court that Linden United suppliers, that Red-D-Mix can to subcontractors and not only press the latter. It does not that be characterized as say, argument up here so we do not take it in detail. Suffice it to above, position parties do that the stand in the same as we parties did in Linden in all relevant vis-a-vis one another as respects. United, parties grant any property that if owners sue Both bring third-party can Red-D-Mix in as a defendant. it then points, to these two United maintains that addition "privity contract stresses that exists between the opposing parties" here, while it did not in Linden. This privity true, but immaterial. The of contract between nothing United and Red-D-Mix has do with to relationship between Red-D-Mix, the homeowners and ability or the of the former sue Red-D-Mix. If the against homeowners cannot file an actiоn Red-D-Mix, then United cannot do so their name. Lastly, urges accept
¶ 51. United us to the claims imposed third-party on the basis Linden no bar on beneficiary grant contract actions. We that Linden left permissibility Id., ¶ unsettled the of such suits. question open, That will remain as United did not complaint, exercising any rights claim, in that was third-party to sue on behalf of the homeowners as beneficiaries. precludes summarize, 52. To Linden suing
from Red-D-Mix in the name of the homeowners. properly The circuit court summary judgment, dismissed those claims on appeals improp-
and the court of erly reinstated them. It is reversed insofar as it so, did go and those claims will not trial.
2. United's Claims in Its Own Name are Permissible rejected
¶ 53. The circuit court United's claims brought grounds damages in its own name the on that speculative. appeals' judgment, were too In the court of they sufficiently justify however, were concrete to a Red-D-Mix conceded the assignments' validity prior in a motion during litigation the coverage over insurance in the case. It provides argument no citations and scant in support. We read simply arguing, largely the motion as in a proceeding, unrelated that they the homeowners rights might transferred whatever United, have had to sue Red-D-Mix necessarily not that enjoyed rights. such appeals, though trial. with the court of we agree We its determination the premature regarding overrule assignments.23 effect of the summary judgment, In order to survive a in contract must sounding allege damages.
complaint
See,
Congregation
Apple
Black v. St. Bernadette
e.g.,
(Ct.
ton,
App.
121 Wis. 2d
621 Envirodyne, unpub 09-C-0131, 501419, No. 2013 WL (E.D. 2013) slip op. (quoting 11, lished at *10 Wis. Feb. Co., 497, 502, Schubert v. 1 Midwest Broad. Wis. 2d 85 (1957) Bickel, N.W.2d449 and DeSombre v. 18 Wis. 2d (1963)). party 390, 398, A 118 N.W.2d868 satisfies its summary judgment respect damages burden at to if it advances that it evidence did not the benefit "receiveü bargain." way making showing of its Id. One this is to question submit evidence that raises a material of fact as product provided whether or service of lesser "was quality" guaranteed agreement, than under the and plaintiff whether its defects led the to incur "costsneeded repair alleged general defects." Id. As a more damages matter, to claim, be recoverable in a contract "flow[] have to from the breach." Denhart v. Waukesha (1963) Brewing Co., 583, 21 2d 595, Wis. 124 N.W.2d664 (citation omitted), reasonably "must be foresee probable able the time the contract was made as a Prop. Dev., result of the breach." Peterson v. Cornerstone App LLC, 50, 2006 WI 294 Wis. 2d (internal quotation N.W.2d716 marks and citation omit ted). suggesting 55. The record contains evidence required replacement flatwork because of the
deterioration Red-D-Mix's concrete. United has al- ready replaced driveway, belonging Beyers, one pursuant aggrieved party.24 to a settlement with the brief, In its initial Beyers Red-D-Mix submits that should be excluded from the equation evidence because of its only case small claims court given was to the circuit court presiding summary over this matter after judgment was en However, tered below. it concedes that "reference to" the small litigation claims prior court, was made to that date in circuit and that stipulation calling replacement order for the *30 couple, Michaels, Another the demanded a reservation rights executing in return of to sue United for the assignment, entitling them to hale United into court any Replacing Beyers the time. work done either the necessary or the Michaels would not have been if procured had United durable concrete from Red-D-Mix. supply The latter's failure to such concrete breached its replacement United, contract with and the cost of is directly "flow[s] failure, i.e., attributable to that from Denhart, the breach." Furthermore, Wis. 2d at 595. competent supplier of concrete knows that if it sells a product, likely substandard the end-users will see their properties marred. Red-D-Mix was of aware that inevi- tability damages well, been, or should have so the "reasonably were foreseeable at the time the contract probable Peterson, was made as a result of breach." Damages speculative. 294 Wis. 2d 50.25 are not point. above-quoted passage ¶ 56. One final The appeals opinion regarding assign- from the court of question damages, ments creates confusion on the ambiguity addition to the it inserts into the economic repeat sentence, loss doctrine. To the most essential summary preceded judgment hearing. Red-D-Mix does not challenge veracity representations of United's to the circuit regarding Beyers' case, court nor the nature of the order. judge adequately The trial was made aware of the case and upon United's reliance it for consider it here. us to 25 Obviously, nothing opinion in this should be taken to United, showing damages, expenses limit in its to undertaken respect Beyers' properties. to the and Michaels' We focus properties only on are those because sufficient for United summary judgment. to surmount the hurdle entitled, plaintiffs, up jury's like all prove to satisfaction any damages which were stem from the breach reasonably foreseeable Red-D-Mix at the time it contracted supply the relevant concrete to United. appeals "[w]hile
court of announced that the homeown- may rights against assign, ers have had no Red-D-Mixto Assignments strip right neither from United its protect sue Red-D-Mix nor United from homeowners' potential Concrete, breach-of-contract claims." United preceding 2011AP1566, No. 11. In the section we had problematic ambiguity occasion to comment on "may" the term Now, the first sentence. we must *31 premature overrule the statement in made the second. ¶ above, 57. As shown there was sufficient evi- regarding damages dence in the record for United to summary judgment. appeals survive The court of did not legal significance assign- need to construe the of the ments in order result, to reach its let alone to do so with explanation, assignments' no no consideration of the authority. terms, and no citation to We overrule its assignments. comments on the status of the If the assignments any proceedings become relevant in further interpreted before the court, circuit can be afresh at that time.
V CONCLUSION ¶ appeals 58. As above, shown the court of inwas wrong correct, the main respect but reached the result in one imprecise and was overbroad or in others. wit, To appeals properly the court of reversed the circuit court's ruling regarding puffery, though incorrectly deter- always question mined that of fact for the jury. appeals On issue, the next the court of erred in its through determination that the claims United asserted assignments exceptions,26 valid, when, were with two the economic loss doctrine barred the homeowners suing from Red-D-Mix and thus barred United from supra See note 19. suing Finally, appeals rightly in their name. the court of finding reversed circuit court for all the asserted damages speculative, though doing prematurely so it interpreted legal significance assignments. of the language construing assignments Its is overruled.
¶ 59. it, When the case is returned circuit through court is directed to dismiss claims asserted assignments, remaining and to allow the claims to proceed part, part, to trial. We affirm in reverse and remand with instructions.
By appeals the Court.—The decision of the court of part part, is affirmed in reversed and the cause is remanded circuit court with instructions. (concur- ABRAHAMSON, 60. SHIRLEY S. C.J. ring). agree appeals' unpublished per I with the court of opinion appeals, curiam in this case. Like the court of I summary judgment would reverse the order for remand the matter to the circuit court trial without any specific instructions. majority opinion's I have trouble with the
instruction to the circuit court "to dismiss the claims through assignments, asserted and to allow remaining proceed Majority op., claims to to trial." page majority opinion's ¶¶ 3, 59. To take a out of the play suggest majority "concrete," on the word I that the opinion's [United Concrete's] instruction "to dismiss though assignments" claims asserted enough. is not concrete majority ¶ 62. Just what claims does the have in Why mind that have to be dismissed? make the circuit parties guess majority court and the which claims the wants dismissed? Just tell us! complaint,
¶ I 63. As read the I at- which have tached A, hereto as Exhibit United Concrete has not assignmеnts. through any United claims
asserted All complaint claims. numbered has seven Concrete's complaint are in the Concrete asserts United the claims alleges as a injuries it has suffered United Concrete for conduct. of Red-D-Mix's result United dismissed court order The circuit portion complaint. The substantive entire Concrete's follows: reads as order the dismissal THEREFORE, AND NOW, IT HEREBY ORDERED IS Concrete, Inc.'s motion that Red-D-Mix ADJUDGED rules that granted. The Court summary judgment Construction, Concrete & asserted United all claims property owners through assignments Inc. from holding precluded by the are and all tort based claims Cascade, 2d 283 Wis. 2005 WI in Linden v. Economic Loss Doctrine. 189 and the 699 N.W.2d that, AND ADJUDGED FURTHER ORDERED IT IS claim, § Wis. Stat. 100.18 respect to the Plaintiffs with Concrete, Inc.'s by Red-D-Mix statements made "puffery" and are not actionable constitute salesman the statute. under that, AND ADJUDGED ORDERED
IT IS FURTHER Construction, & Inc.'s Concrete respect to United claims, sufficiently es- the Plaintiff has remaining (emphasis its claims damages, support tablished added). organizes United order 65. This circuit court categories complaint of claims: into four Concrete's (1) through assignments from the claims asserted (3) (2) property Stat. owners; claims; Wis. tort based (4) remaining The circuit claims. claim; 100.18 clear which of the seven does not make court order complaint it viewed as Concrete's claims *33 assignments. being based on the reality ¶ 66. The of this case is that the whole assignments is, issue of the as United Concrete has herring,"1 diverting maintained, a "red аttention from the real issues: Did Red-D-Mix violate Wis. Stat. § 100.18, did Red-D-Mix breach the contract, and is damages speculative? United Concrete's claim for majority opinion ¶ reality 67. The confirms the explaining complaint case, ¶ this 41: "The did not explicitly suing indicate that United was Red-D-Mix through assignments in the homeowners' name." recognizing reality 68. While case, this majority opinion accepts sometimes Red-D-Mix's mis- depiction complaint.2 majority taken of the Indeed, the opinion repeatedly reality spin. vacillates between majority opinion's adoption 69. The of Red-D- depiction complaint Mix's mistaken of the rather than reality complaint majority of the culminates in the opinion's instruction to the circuit court "to dismiss the through assignments, claims asserted and to allow remaining proceed claims to to trial." 1 Others have viewed the assignments discussion of the this case as a "red herring." argument, At oral Roggen Justice sack commented about assignments to Red-D-Mix's counsel during rebuttal as follows: going assignments],
Whatever is [with on here to me it feels herring," going like a They're "red what's on with the homeowners. got dispute not here. We've between Red-D-Mix and United and gonna that's what I think we're focus on here. An audio recording of argument the oral can be found Supreme on the Court's website at http://www.wicourts.gov/ - opinions/soralarguments.htm, at 1:13:58 1:14:15. 2 See, 39,41,43,48 for example, majority of the opinion, ¶¶ treating the complаint ifas United Concrete's claims for "breach contract, breach of express warranty, implied breach of warranty, indemnification, and contribution" "brought were both in [United through assign Concrete's] own name and from ments the homeowners." *34 majority I The reality. 70. vote for concrete be the circuit court telling should opinion precise of the it should strike. complaint which parts I am authorized to state that Justices ANN 71. CROOKS join WALSH BRADLEY and N. PATRICK this opinion.
EXHIBIT A nTTrAOA-MTE.CQUNTY COURT OF WISCONSIN CIRCUIT STATE CLERKOFCIRCUITCh" vn BRANCH INC., CONSTRUCTION, & UNITED CONCRETE | 3 201! JAN Plaintiff; Case No.: 08-CV-1595 n RED-D CONCRETE, INC., MIX COMPANY, NATIONWIDE MUTUAL INSURANCE COMPANY, ALLIED INSURANCE
Defendants.
THIRD COMPLAINT AMENDED Inc., Plaintiff; Construction, through attorneys, The United Concreto & and fina, following: Law, LLC, alleges and J. of the Epiphany Valeric Revnaw to as Plaintiff, (hereinafter “United"), Construction, 1. Ino. referred is United Concrete & principal the State with a duly place formed under laws of of Wisconsin corporation Wisconsin, Street, 54913. at 5902 N. Appleton, of business Richmond Defendant, Concrete, (hereinafter Mix as 2. Rcd-D lac. referred “Dafendant” or “Rsd-D place Mix”), corporation primary is a with its oFbusiness located at2885 Wisconsin Street, Bay, registered Green d as a an Kowolko wslti Allied Wisconsin Frank address agent, whose same. 3. (cid:127) providing Locus registered Based belief; iha information Company, “Allied’') Sb on information Dep. is an insurance policy number ACPGL0710 coverage agent had Issued and at belief; for Dcs Red-D and liability and Excelsior, corporation, Is Moines, belief; at all times Mix Defendant; Concrete, Tnc.,a describcdharein. Iowa 50391 with CT Suite with its material 200, Mаdison, 2253616. Allied principal place herein, policy insurance Further, Wisconsin Corporation that was defendant^ upon ofbusmess located Company in foil information 53717. System Allied (hereinafter force and effect Upon as a Insurance [1100] (hereinafter 4. Mutual Insurance Upon Company information Nationwide belief may provide be or have a with Allied to “Nationwide”), parent company Allied’s contract Defendant, Mutual coverage Insurance of Wisconsin. Nationwide Insurance tile state with Us of business located at Company principal place is an insurance One corporation, Plaza, System registered CT as a Columbus, Corporation Nationwide Ohio 43215 Excelsior, 200, Madison, agent at 8040 Wisconsin 53717. Nationwide Mutual Suite may commercial Company responsible liability Insurance bo company providing coverage Concrete, Inc policy under number ACPGL0710 insurance Mix Rcd-D 2253616. primarily driveways, patios, 5. United. Is concrete installs and other contractor concrete fiatwork. 6. and/or manufactures Rcd-D Mix distributes concrete. United used concrete poured has been used in Red-D Mix’s fiatwork at many many concrete locations residences during the in the area. andbustases 2007 season, during hi the course ofits such that said business,
8. The fiatwork from decoloration, crumbling and problems performed by with premature United spalling deterioration, using along sawcuts Red-D inсluding, Mix’s and loss of surface. concrete in but not limited to [2007] has suffered scaling, pitting, 9. problems premature The with known to deterioration were made Red-D Mix.
10. anticipates may subject that United to claims, iirtbe future it be and demands suits as a expenses result of and to concrete, alleged said use of said as date to above, has incurred problems coirect all said to the detriment of United. Properties poured 11. as attached hereto Exhibit A had toe defective have fiatwork using properties concrete from Red-D of have Mix. The said assigned owners their to rights aue to United. FIRST CLAIM
(Breach of Contract) 12. Plaintiff reincorpórales and realleges paragraphs [1] -11 above as if folly set forth herein. 13. United entered a contract with into Red-D Mix for to non-defective concrete be driveways, patios, used in the of installation and other work. concrete by 14. Mix Red-D toe delivering defective, breached contract concrete that was of unsatisfactory quality, performed by and unsuitable use in concrete for work United. problems 15. Rcd-D Mix’s defective concrete caused but not limited including, to, scaling, pitting, spalling premature and discoloration, crumbling along sawcuts, other and performed deteriorations and loss toe ofsurface in fiatwork United Red-D with Mix’s 2007. concrete in Asa Id. result of Red-D Mix’s breach contract, of United has suffered in an amount damages to be determined at trial. As a 17. any result of Rcd-D contract, Mix’s breach of Red-D Mix liable to United for and all out of said damages of contracL arising breach SECOND CLAIM Warranty) Express of
(Breach 18. PlaintifFTeiucarporatcs paragraphs iffully above as realleges 1-17 set forthherein. 19. supplier United Tn a used Red-D Mix as concreto fiatwork. for its
20. United problems with the concrete mix. stopped using Rcd-D Mix a concrete supplier approximately duelo process years couple later, was of concrete m changing United in2007, 21. A suppliers. representative, about Hippert, John, United met with Red-D Mix’s Concrete, Tim 22. to Red-D Mix concrete. switching previously experienced 23. quality with Red-D sure issues to make United wanted important to United that Red-D concrete was Ttwas Mix’s Mix been resolved. had product simply prices Therefore, obtaining delicts. instead goodand without durable quality Hippert with phone, Tim Red-D Mix discuss the over the met fecc-to-fhca die concrete. Hippert, fay United Tim Red-D foreman), Kluess'(a attended Kevin meeting 24. was The John. salesman, Mix quality inquired specifically as to Hippert and Kevin Kluess meeting, 25. Tim. During die . Red-D Mix. ofthe concrete available from 26. representative, Red-D had built a new Red-D assured United that Mix Mix, through plant provide allow would be able concrete that Unitedto and would product and durable customers create for its good express uрon affirmations into contract with entering United relied Red-D Mix’s 27. Red-D concrete Mix CLAIM THIRD Warranty) (Breach of Implied *36 28. folly reincorpórales paragraphs above if Plaintiff and 1-27 as set forth herein. realleges merchantability 29. implied aparticuiar of and has made warranties fitness for Red-D Mix satisfactory quality purpose, to be that the delivered United of including would concrete by performed and for United. suitable use in flatwork merchantability 30. implied for a Red-D Mix breached these of and fitness warranties purpose by particular quality, defective, unsatisfactory of that was delivering concrete performed by and unsuitable for use concrete work United. 31. problema but not including, to, Red-D Mix’s defective concrete caused limited scaling, premature pitting, spalling discoloration, sawcuts, other crumbling along and performed by and in the United deteriorations loss of surface flatwork withRed-D Mix’a 2007. concrete in 32. contract, damages As Mix’s a result of Rcd-D of has suffered an amount . breach United to be determined at trial. any contract, to of and Asa result Mix’s of Rcd-D Mix is liable United for Red-D breach out of damages arising of said contract all breach FOURTH CLAIM Deceptive, Practice: Trade or (Unfair Untrue, Representation-Wis.Stat.
Misleading 100.18) 1-33 reiiworp paragraphs fully above orates and as if Plaintiff set realleges forth herein. representations flatwork, In selling concrete use Red-D Mix made about the purchase which to concrete induced United concrete the Red-D from Mix. reasonably representations representations relied on die from Red-D Mix and the purchase contributed significant were factor that to United’s decision to concrete from Mix. Red-D representations purchased The Rcd-D made about the concrete United untrue. Mix were monetary sustained, representations sustain, United has or will result of the loss as a by made Red-D Mix. Upon Wis. StaL belief, §100.18. information and actions constitute a violation of these CLAIM
FIFTH (Negligence) reincorporatcs paragraphs 1-39 fully Plaintiff and as realleges above if herein. set forth produced negligently supplied At all hereto, times material Mix and United said Red-D pouring used concrete in the oFflatwork and caused negligence such die aforementioned andproblems defects with said as flatwork, alleged above, Red-D occurring such that consequential Mix is liable United for actual problems and damages arising from said remedy replacement repair, any defects, to, and but costs of including not limited and of injuries defects, complaints and all and have arisen or in the resulting which will arise concrete, Futureas a above. result oftheuse of said alleged inspections Red-D adequate product Mix didnotmake all reasonable and tests and Us any to guard against defеctive conditions. As a property experienced result of Red-D numerous negligence Mix, owners have problems by poured United, with the but not including flatwork limited to, those listed in Incoiporaled A, Exhibit attached hereto and herein reference. SIXTH CLAIM
(Indemnification) 1-43 Plaintiffremcoiporates paragraphs fully above as if set realleges forth herein. supplying purpose Mix, flatwork, Red-D m concrete to said United for the use in theory any. to United liable under the and all claims or damages, indemnificationfor past, present complaints, Dutof Uie arising aforementioned defects m said future concréte, as above. alleged *37 CLAIM
SEVENTH (Contribution) ir 46. fully remcoiporates paragraphs 1-45 above as set forth herein. Plaintiff and realleges pouring supplier used Tnthe as the of the concrete alternative, Mix, Rcd-D in the (he any theory be and all flatworic,would liable under of contribution for damages any way United, out to be said claims against claimed or claimed and resulting concrete, suits above. alleged out the use said as arising prays WHEREFORE, the following the Plaintiff relief! reasonably compensate United
a) Damages in an amount that will for the by allegedly be caused caused and to the defective concrete damages aforementioned provided herein; the defendant under alleged theories attorney’s b) Costs, fees; including Such judgment maybe just
c) other further or order of relief considered equitable. IS^dayofJaauaryZOlI. Dated this Epiphany LLC Law,
.4211N. Drive Lightning Appleton, WI54913 Telephone; 920,996.0000 920.996.0001 Fax: