Ahnert et al v. CBS Corporation et al
MEMORANDUM OF LAW signed by Judge Pamela Pepper on 5/15/2017 SUPPORTING the court's denial of 52 MOTION for Summary Judgment filed by Wisconsin Electric Power Company. (cc: all counsel)(pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL AHNERT and
Case No. 10-cv-156-pp
Case No. 13-cv-1456-pp
EMPLOYERS INSURANCE COMPANY OF
WAUSAU, SPRINKMANN SONS CORPORATION,
WISCONSIN ELECTRIC POWER COMPANY,
and PABST BREWING COMPANY,
MEMORANDUM OF LAW SUPPORTING THE COURT’S
DENIAL OF WISCONSIN ELECTRIC POWER COMPANY’S
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 52)
Plaintiffs Daniel and Beverly Ahnert filed this asbestosis case on
February 25, 201. Dkt. No. 1. The complaint alleged that plaintiff Daniel
Ahnert had been exposed to asbestos, which had caused his medical condition.
On May 4, 2010, the United States Judicial Panel on Multidistrict Litigation
transferred the case to the federal court for the Eastern District of
Pennsylvania, where Judge Eduardo C. Robreno was presiding over
multidistrict litigation (“MDL”) involving thousands of asbestosis cases. Dkt.
Some two and a half years later, Beverly Ahnert—individually, and as the
executrix of the estate of Daniel Ahnert (who since had passed away)—filed a
new case in the Eastern District of Wisconsin. Ahnert v. Employers Ins. Co. of
Wausau, et al., Case No. 13-cv-1456-cnc (E.D. Wis.) (“the 2013 case”) alleged
that on July 7, 2011, Daniel Ahnert had passed away as a result of asbestosrelated diseases. This case was assigned to Judge Charles N. Clevert; it was not
transferred to an MDL court.
On September 8, 2014—while the 2013 case was pending before Judge
Clevert—the MDL court remanded this case back to the Eastern District of
Wisconsin. Dkt. No. 34. In his suggestion of remand order, Judge Robreno
stated that he had denied the summary judgment motions filed by defendants
Pabst Brewing Company and Wisconsin Electric Power Company; he had
granted in part and denied in part defendant Sprinkmann Sons Corporation’s
motion for summary judgment. Dkt. No. 34-1 at 6-7. Judge Robreno found that
the case was ready for trial (subject to any trial-related motions in limine and
Daubert motions). Dkt. No. 34-1 at 7. He severed “[a]ny demand for punitive
damages,” and the MDL court retained “claims for punitive or exemplary
damages.” Id. In a footnote, Judge Robreno noted that he was severing the
issue of punitive damages with regard to all of the cases in the MDL
proceeding. Id. at 8, n.1.
A few months later, Beverly Ahnert moved to consolidate this case with
the 2013 case. Dkt. No. 35. This court deferred ruling on that motion until
Judge Clevert could decide the outstanding motions for summary judgment in
the 2013 case. Dkt. No. 44. The court also ordered that defendants Pabst and
Sprinkmann could “update” their summary judgment motions (the ones upon
which Judge Robreno had ruled) on two discrete issues that Judge Robreno did
not address: the Wisconsin Construction Statute of Repose (“CSOR”) and the
Safe Place Act. Id.
The court issued a second, text-only order, extending the deadline for
Sprinkmann and Pabst to file their updates on these issues. Meanwhile,
Wisconsin Electric—whom the court had not given permission to update its
summary judgment motion—filed a summary judgment motion. Dkt. No. 52. In
its brief, Wisconsin Electric asked for summary judgment based on the Safe
Place Statute and the CSOR. With regard to the Safe Place Statute, Wisocnsin
Electric argued that plaintiff Daniel Ahnert had been employed by an
independent contractor while working on its premises. It asserted that because
Wisconsin law provides that a principal employer is not liable in tort for
injuries sustained by the employee of an independent contractor, and because
neither of the two exceptions to that rule applied, Wisconsin Electric was not
liable to the plaintiffs for his injuries. With regard to the CSOR, it argued that
the work done by Ahnert and others constituted an improvement to the
property, and not maintenance. Finally, it argued that the plaintiffs were not
entitled to punitive damages. Dkt. No. 53.
Ignoring the court’s instructions, Sprinkmann (dkt. no. 55) and Pabst
(dkt. no. 58) filed new summary judgment motions (although Pabst captioned
its motion as an amended motion).
On January 6, 2016, Judge Clevert denied Employers’ and Sprinkmann’s
motion for summary judgment in the 2013 case. Ahnert v. Employers
Insurance of Wausau, Case No. 13-cv-1456-cnc at Dkt. No. 199. The next day,
he denied Pabst’s motion for summary judgment. Id. at Dkt. No. 200. A couple
of weeks later, he denied Wisconsin Electric’s motion for summary judgment.
Id. at Dkt. No. 201. The plaintiffs then filed another motion in this court,
asking the court to consolidate the two cases. Dkt. No. 89.
On March 31, 2017,1 this court denied the defendants’ pending summary
judgment motions, and granted the plaintiffs’ second motion to consolidate the
two cases. Dkt. No. 101.
There was a delay between the date on which Judge Clevert decided the
summary judgment motions in the 2013 case and the date this court ruled on
the motion to consolidate/motions for summary judgment in this case. There
are a number of reasons for that delay, many of which have to do with
congestion on the court’s calendar. The court notes, however, that Civil Local
Rule 56(b)(2)(B)(i) of the Eastern District of Wisconsin requires a party opposing
summary judgment to file a statement of facts, containing a “reproduction of
each numbered paragraph in the moving party’s statement of facts followed by
a response to each paragraph, including, in the case of any disagreement,
specific references to the affidavits declarations, parts of the record, and other
supporting materials relied upon.” It also requires that party to file a statement
of any additional facts that require the denial of summary judgment, with
citations to the record.
In responding to the defendants’ summary judgment motion, the
plaintiffs construed this court’s order as requiring them to supplement the
briefs they had filed in the Pennsylvania MDL. Despite the fact that the
plaintiffs were filing their response briefs in the Eastern District of Wisconsin,
they followed the “briefing format used in submitting the original MDL briefs to
the Eastern District of Pennsylvania.” Dkt. No. 63 at 2, fn. 3. The plaintiffs did
not comply with the local rules of the Eastern District of Wisconsin, including
the one quoted above. Without the responses to the proposed findings of fact,
the court was forced to scour the record to identify disputed issues of fact.
Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (court is not required
to scour the record or permitted to conduct a paper trial on the merits of the
Despite the fact that the court did not authorize Wisconsin Electric to
update its summary judgment motion on the Safe Place and CSOR issues, the
court has considered the defendant’s arguments on those issues. The court
finds that genuine issues of material fact preclude summary judgment on the
issue question of whether the Safe Place Statute and the CSOR bar the
plaintiffs’ claims, and will deny the defendant’s motion for summary judgment
on those issues. The court will not address the defendant’s arguments on the
issue of punitive damages, because Judge Robreno retained all punitive
damages issues for decision by the MDL court.
SUMMARY JUDGMENT STANDARD
Rule 56 requires that a moving party identify each claim or defense on
which the party seeks summary judgment. Fed. R. Civ. P. 56(a). If the moving
party can show there is no genuine issue of material fact and an entitlement to
judgment as a matter law, the court should grant the motion. Id. However, to
prove there are no genuine, factual disputes, the moving party must support
the motion with citations to the record, such as “depositions, documents . . .
affidavits or declarations, stipulations.” Fed. R. Civ. P. 56(c)(1)(A). The moving
party may show “that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). In ruling,
claim.) This contributed in some part to the delay in the court issuing its
the court may consider the other materials in the record and not judgment just
those cited by the parties. Fed. R. Civ. P. 56(c)(3).
FINDINGS OF FACT
Plaintiff Beverly Ahnert resides in White Settlement Texas, where she
lived with Daniel Ahnert prior to his death on July 7, 2011. Dkt. No. 1 at ¶1;
Dkt. No. 53-7. The complaint contains allegations that Daniel Ahnert was
exposed to and inhaled airborne asbestos fibers released while he was using or
removing such products, or was working in proximity to others using or
removing such products. Dkt. No. 1 at ¶25. Dr. Stephen Haber determined that
Daniel Ahnert developed asbestos-related pleural disease from his occupational
exposure to asbestos. Dr. Haber further opined, based on Ahnert’s work
history, that the cumulative asbestos exposure contributed to his disease. Case
No. 10-cv-67443 (E.D. Pa.), Dkt. No. 396-4.2
The plaintiffs allege that Wisconsin Electric is the “owner or operator of
premises where asbestos products were used.” Dkt. No. 1 at ¶15. There are
three Wisconsin Electric facilities relevant to this case: the Oak Creek Power
Plant, Port Washington and Lakeside. Id. at ¶¶48-57, Ex. B.
In the MDL litigation before Judge Robreno, the plaintiffs produced
Wisconsin Electric’s 1958 contracts with the companies it hired to install
insulation materials for Unit 5 in the Oak Creek Power Plant. Case No. 1067443 (E.D. Pa.), Dkt. No. 396-18, 19 and 20. Wisconsin Electric provided
All citations to documents filed in the Eastern District of Pennsylvania
reference the docket number and the exhibit number assigned when
insulation requirements to bidders, and the products contained asbestos. Id. at
396-13 at 5154, 396-18-20. Its contract with Sprinkmann (one of the
companies retained to provide and install insulation) provided specifications for
materials containing asbestos. Id. at 396-17, 37 at WE 52138. Asbestos was
used throughout the boiler. Id. at 396-16, 18-20.
In the 1980s, Daniel Ahnert and other co-workers began to work on the
burner deck of Unit 5 at the Oak Creek Power Plant. Jon Shorougian—who,
like Ahnert, had been a member of Local 601—testified that Ahnert was his
partner for six months, and that the work involved overtime hours (shifts
longer than eight hours). Case No. 10-156, Dkt. No. 64-5 at 6, 20. The
insulation removal was done in part by Sprinkmann, but Wisconsin Electric
told Shorougian and Ahnert that they, too, were safe to remove the insulation.
Id. at 9, 11, 12, 18, 49, 50. The insulation removal made the surrounding
environment “always really dusty.” Id.
According to Shorougian, he and Ahnert were “replacing some of the old
coal-fired pieces with natural gas-fired pieces, which involved a lot of cutting,
grinding, [and] welding.” Id. at 7. Coal was the main process of burning fuel,
even after the additional of gas nozzles to the burner deck. Id. at 14. The
replacement process involved tearing off casing to reveal insulation that went
from the floor up to the burner deck, twenty-five to thirty feet up. Id. at 8, 10,
11. Behind the boiler jacket was a fibrous insulation material, both hard and
soft. Id. at 9. The brick insulation underneath the boiler was soft and crumbly.
Id. at 10.
Shorougian testified that Wisconsin Electric initially told him and Ahnert
that the insulation was not asbestos, so they continued to strip the boiler down
to the fibrous material like insulation. Id. at 9. But, as the facility became
“really dusty,” the workers began to worry, and they “took a sample and gave it
to one of [the] union representatives and asked him to have it tested … and
found out it was positive.” Id. at 12. Both Shorougian and Ahnert still were on
the job when the results came back. Id. at 50.
There were approximately sixteen gaskets inside the boiler that
Shorougian and Ahnert were removing. Id. at 14, 15 and 74. The gaskets were
eight by eight inches, and took about an hour each to remove. Id. at 74.
Shorougian and Ahnert’s noses were about six to eight inches away from this
work, and they breathed the gasket dust. Id. at 75. The gaskets were removed
and a scraper or power grinder with a wire wheel was used to clean up the
faces of the gaskets. Id. at 15, 74. Shorougian and Ahnert also removed the
metal cover on the burner deck, which disturbed insulation material. Id. at 76.
Dust would be kicked up, and would float around the areas where they were
working. Id. Finally, there were bricks and insulation between the floors, that
the workers believed contained asbestos. Id. at 47.
The Sprinkmann employees on site worked to install and remove the
insulation. Id. at 16-17, 89-90. Dust was in the air, but Wisconsin Electric
assured the workers that there were no hazardous materials. Id. at 18. The
foreman of Foster Wheeler (a company which manufactured and sold
insulation products)3 worked with a Wisconsin Electric engineer. Id. at 34-35.
The Wisconsin Electric engineer wore a Wisconsin Electric hard hat, and was
involved in the whole process with the workmen and Ahnert. Id.
The plaintiffs produced an unauthenticated document dated April 27,
1989.4 Dkt. No. 53-5. The document states that members of Local 601 were
working on the job on that date, piping coal and air lines to burners, and that
the covering on the primary air lines contained 15% chrysotile amosite
Shorougian and Ahnert breathed the dust for the entire six months they
worked at the Oak Creek Power Plant, and the dust remained in the air and
stuck to some of the metal in the area where Shorougian and Ahnert worked.
Id. at 6, 19. They did not have respirators on the job; they had “little paper
masks that went over your face.” Id. at 43-44. They did not feel it was
necessary to use the paper masks, because they were told the insulation was
not asbestos. Id. at 50.
Wisconsin Electric produced a copy of its 1989 contract with Babock &
Wilcox (“B&W”), in which it retained that company to upgrade and overhaul
Unit 5 to increase its efficiency and power output. Dkt. No. 53-6 at ¶14. The
contract required that B&W remove all asbestos-containing insulation by
January 23, 1989, and complete the demolition phase by February 22, 1989.
Foster Wheeler was a defendant in this case; the parties stipulated to its
dismissal on May 16, 2016. Dkt. No. 95.
4Wisconsin Electric accepts this document as true for the purposes of the
summary judgment motion, but asserts that in 1989, Shorougian and Ahnert
worked for a company called Babcock and Wilcox (“B&W”) at the Oak Creek
Power Plant. Dkt. No. 53-5.
Id. at ¶¶6, 8, 11, Ex. A 5-1. It allowed B&W to hire subcontractors to conduct
the asbestos remediation, to be completed in the demolition phase by January
23, 1989. Id. at ¶8. B&W signed the contract describing the scope of work and
safety requirements for its employees and subcontractors. Id. at ¶¶6-13, Ex. A
The contract between Wisconsin Electric and B&W provided that the only
areas within the specification known to be “asbestos-free” were to the rear wall
radiant super heater (elevation 45 and lower), south side wall radiant reheater
(elevation 82 to elevation 30), and north side wall radiant reheater (entire wall).
Id. at ¶6, Ex. A 5-5. With respect to the burner deck referred to in the
statement from 1989, the contract provides:
All of the insulation with the 10 inch high space between the
burner deck and the roof of the secondary air duct shall be
removed and scrapped by the Contractor. It should be noted that
in the past this area has been filled with a variety of insulation
materials, from poured to block, and in varying thicknesses,
leaving a patchwork of materials. All of the insulation shall be
considered to contain “asbestos,” and shall be appropriately
handled/disposed by the Contractor.
Id. at ¶6, Ex. 1 at 184.108.40.206.
B&W had to comply with all pertinent state and federal safety
regulations; its employees had to wear respiratory protection based upon
OSHA requirements; and it had to employ all necessary materials and
safeguards, and work so as to ensure all personnel in direct and adjacent work
areas were protected from exposure to airborne asbestos. Id. at ¶¶6-11, Ex. A
Under the terms of the contract, Wisconsin Electric was not responsible
for overseeing, directing, or assigning B&W’s or Daniel Ahnert’s work. Id. at
¶12. The contract expressly made B&W responsible for the work conducted on
the burner deck of Unit No. 5. Id. at ¶13. At the same time, the contract
provided that Wisconsin Electric had the power to determine whether
additional measures would be necessary to provide safe and healthful working
conditions and could suspend work at any time. Case No. 10-cv-67443 (E.D.
Pa.), Dkt. No. 396-49 at 028174. The contract called for Wisconsin Electric to
approve all asbestos handling and inspect the work of B&W, and it called for
meetings concerning activities in the workplace. Id. at 396-49 at 028167,
028168, 028182, 028261, 028103, 028104, and 028067.
In its 1996 Centennial publication, Wisconsin Electric admitted that
during its “formative years,” it took a “somewhat casual attitude toward the
physical world around it,” and that “workers who spent their days insulating
steam pipes with asbestos went home looking as if they’d been dipped in flour.”
Case No. 10-cv-67443 (E.D. Pa.), Dkt. No. 396-42. In the 1950s, Wisconsin
Electric had a medical director and safety staff with access to all relevant
medical information. Id. at 396-39. That director had knowledge of the
Wisconsin Industrial Commission regulations enacted in the 1940s, which
declared asbestos a toxic substance. Id. at 396-40.
CONCLUSIONS OF LAW
Wisconsin Safe Place Statute
The Wisconsin Safe Place Statute, Wis. Stat. §101.11, creates a nondelegable statutory duty for premises owners distinct from legal obligations
arising under common law. Anderson v. Proctor & Gamble Paper Prods. Co.,
924 F. Supp. 2d 996, 1001 (E.D. Wis. 2013). The statute provides:
Every employer shall furnish employment which shall be safe for
the employees therein and for frequenters thereof and shall furnish
and use safety devices and safeguards, and shall adopt and use
methods and processes reasonably adequate to render such
employment and places of employment safe, and shall do every
other thing reasonably necessary to protect the life, health, safety,
and welfare of such employees and frequenters. Every employer
and every owner of a place of employment or a public building now
or hereafter constructed shall so construct, repair or maintain
such place of employment or public building as to render the same
Wis. Stat. §101.11(1).
The statute establishes a duty greater than that of ordinary care imposed
under common law. Barry v. Employers Mut. Cas. Co., 245 Wis. 2d 560, 569,
630 N.W.2d 517 (2001). Premises owners must construct, repair, and maintain
premises to make them safe for employees and frequenters. Anderson, 924 F.
Supp. 2d at 1001 (citing Barth v. Downey Co., Inc., 71 Wis. 2d 775, 778, 239
N.W.2d 92, 94 (976)). “Frequenters” include an employee of an independent
contractor doing work on the premises. Hortman v. Becker Const. Co., Inc., 92
Wis. 2d 210, 226, 284 N.W.2d 621 (1979).
The Wisconsin Safe Place Statute demands that owners “furnish and use
safety devices and safeguards,” and “adopt and use methods and processes
reasonably adequate to render the place of employment safe.” Anderson, 924 F.
Supp. 2d at 1001. This does not mean that owners must guarantee absolute
safety. Id. Rather, owners “must provide an environment as free from danger to
the life, health, safety, or welfare of employees and frequenters as the nature of
the premises reasonably permit.” Id. at 1001-1002.
Although the statute discusses the obligations of the owner, the case law
focuses on the condition of the structure causing the injury. Wagner v.
Cincinnati Cas. Co., 334 Wis. 2d 516, 525, 800 N.W.2d 27 (Ct. App. 2011).
Generally, there are three unsafe property conditions: structural defects,
unsafe conditions associated with the structure of the building and unsafe
conditions not associated with the structure. Barry, 245 Wis. 2d at 570. The
classification is important, particularly between the first two types of unsafe
conditions, because there are different notice requirements for each
classification. Wagner, 334 Wis. 2d at 525. With a structural defect, a property
owner or employer is liable regardless of whether he knew or should have
known the defect existed. Id. In contrast, when the property condition arises
from an unsafe condition associated with the structure, the Wisconsin
Supreme Court has provided a notice requirement. Barry, 245 Wis. 2d at 571.
To give rise to constructive notice, the hazard must have existed for a sufficient
length of time to allow a vigilant owner an opportunity to discover and remedy
the situation. Anderson, 924 F. Supp. 2d at 1003. Whether a premises owner
had actual or constructive notice generally is a jury question. Id. (citing
Gulbrandsen v. H & D, Inc., 321 Wis. 2d 410, 419, 773 N.W.2d 506 (Ct. App.
Cases Applying the Applicable Law
In a state-court suit against Wisconsin Electric by a different plaintiff,
the Wisconsin Court of Appeals denied Wisconsin Electric’s summary judgment
motion after concluding that the presence of asbestos dust in the air at the
Oak Creek Power Plant could be an unsafe condition under the Safe Place
Statute. Viola v. Wisconsin Elec. Power Co., 352 Wis. 2d 541, 561, 842 N.W.2d
515 (Ct. App. 2013). The amended complaint in Viola alleged that the plaintiff
worked in premises where the pipes were covered with asbestos-containing
insulations, that regular maintenance and repair required that the asbestos be
disturbed, and that the defendant knew or should have known about the
asbestos and its health hazards. Id. The plaintiff, in opposition to themotion for
summary judgment, raised a genuine issue of material fact through evidence
that he was in constant contact with the asbestos dust while in the building
during the installation, repair and removal of asbestos-containing products;
that Wisconsin Electric did nothing to alleviate the dangers of the asbestos
exposure; and that the exposure caused death. Id at 562.
Similarly, the Wisconsin Court of Appeals has held that the release of
asbestos dust during regularly-conducted repair of steam pipes created an
unsafe condition sufficient to support a claim that the factory owner violated
Wis. Stat. §101.11. Calewarts v. CR Meyer and Sons, 344 Wis. 2d 124, 2012
WL 25 2546946, *6 (Ct. App. July 3, 2012). In Calewarts, witnesses testified
that the asbestos insulation was “removed or released by intentional or
accidental impacts or cutting,” which the Court of Appeals determined fell
“squarely within the failure to maintain or repair framework.” Id. There was no
evidence that the insulation was improperly installed or otherwise defective. Id.
In this district, Chief Judge William Griesbach denied a defendant’s
summary judgment motion when he found that a plaintiff came forward with
sufficient evidence to support his claim that the defendant failed to meet its
duty to make a mill safe for those who frequented the premises. Anderson, 924
F. Supp. 2d at 1001–1002. In Anderson, the parties did not discuss whether
the alleged exposure was a product of the design and construction of the
building itself or the result of a failure to properly maintain or repair the
asbestos-laden insulation and materials. Id. The court did have evidence,
however, that the defendant knew or should have known that the asbestos
insulation on was installed in its pipes, that it was regularly disturbed and
released in to the air during pipe repairs, and that a sizeable amount of dust
was generated. Id.
Relying heavily on a contract that required B&W to remove any asbestos
prior to Ahnert’s employment, the defendant argues that it had no duty under
the Safe Place Statute because it did not supervise or control Daniel Ahnert.
Dkt. No. 53 at 14 (citing Hortman v. Becker Constr. Co. Inc., 92 Wis. 2d 210,
226 (Wis. 1979)). It argues that Ahnert’s exposure occurred as a result of
Ahnert’s own actions, and that Wisconsin Electric did not have to protect
Ahnert from his own actions or from the actions of his employer and its
This argument amounts to a claim that the defendant delegated its Safe
Place duties to B&W. The law does not support that claim. The duty under the
Safe Place Statute is nondelegable, and it extends to frequenters, including an
employee of an independent contractor. Anderson, 924 F. Supp. 2d at 1001.
The defendant also maintains that no unsafe conditions existed on the
premises and that it did not fail to repair or properly maintain the premises.
The evidence shows is a genuine dispute as to this material fact.
Evidence presented to the MDL court indicated that by the 1930s or
1940s “occupational health and the general medical literature documented the
hazard of asbestos inhalation, and that the injury caused by asbestos could be
expressed as several clinical diseases including asbestosis, lung cancer and
mesothelioma.” Dkt. No. 64-9. Evidence before Judge Robreno demonstrated
that as of the 1950s, Wisconsin Electric had a safety director on staff, who
should have been aware of these findings. Case No. 10-cv-67443 (E.D. Pa.),
Dkt. No. 396-39. The plaintiffs also submitted evidence that by 1996,
Wisconsin Electric had admitted that, during its formative years, workers
insulating steam pipes with asbestos looked like they had been dipped in flour.
Id. at Dkt. No. 396-42.
Shorougian testified that a Wisconsin Electric employee told him and
Ahnert that the area was safe and asbestos-free. A Wisconsin Electric
Supervisor, wearing a Wisconsin Electric hard hat, was on site for the whole
process. Shorougian also testified that asbestos insulation was being removed
while he and Daniel Ahnert worked at the Oak Creek Power Plant.
It is not for this court to decide whether Shorougian’s testimony is
reliable. That is the job of the fact-finder—the jury. As the evidence stands,
there are disputed questions about whether the defendant knew or should have
known that the people working on its premises during the relevant time period
were exposed to asbestos. There is a dispute over whether the defendant knew
or should have known such exposure was harmful. There is a dispute as to
whether Daniel Ahnert was exposed—and how frequently—to asbestos dust
when he worked on the defendant’s premises. The defendant may have
evidence relevant to each of these questions, and it may believe that its
evidence is more persuasive than the evidence the plaintiffs have presented.
But it is the job of a jury to make that determination, not the job of a court at
the summary judgment phase.
The Wisconsin Construction Statute of Repose
The defendant also argues that the CSOR bars the plaintiffs’ claims.
Wisconsin’s CSOR limits the time in which a plaintiff may bring an action for
injury resulting from improvements to real property. See Wis. Stat. §893.89.
The purpose of the CSOR is to “provide protection from long-term liability for
those involved in the improvement to real property.” Kohn v. Darlington Cmty.
Schs., 283 Wis. 2d 1, 39, 698 N.W.2d 794 (2005). The exposure period runs
ten years from the date immediately following the substantial completion of the
improvement. Wis. Stat. §893.89(1). The Wisconsin legislature limited such
causes of actions by stating that:
no cause of action may accrue and no action may be commenced
. . . against the owner or occupier of the property or against any
person involved in the improvement to real property after the
end of the exposure period, to recover damages . . . for any
injury to the person, or for wrongful death, arising out of . . . the
improvement to real property. This subsection does not affect
the rights of any person injured as the result of any defect in any
material used in an improvement to real property to commence
an action for damages against the manufacturer or producer of
Wis. Stat. §893.89(2). The statute does not apply in the following four
(a) A person who commits fraud, concealment or misrepresentation
related to a deficiency or defect in the improvement to real
(b) A person who expressly warrants or guarantees the
improvement to real property, for the period of that warranty or
(c) An owner or occupier of real property for damages resulting
from negligence in the maintenance, operation or inspection of an
improvement to real property.
(d) Damages that were sustained before April 29, 1994.
Wis. Stat. §893.89(4)(a)-(d). Finally, “[e]xcept as provided in sub. (4),” the
statute “applies to improvements to real property substantially completed
before, on or after April 29, 1994.” Wis. Stat. §893.89(5). The defendant
maintains that no exceptions apply.
Although there is no dispute that the defendant is an owner of the
premises, the defendant has not met its burden to show that Daniel Ahnert’s
injuries arose from work intended to make improvements to real property. The
Wisconsin Supreme Court has defined an improvement as a “permanent
addition to or betterment of real property that enhances its capital value and
that involves the expenditure of labor or money and is designed to make the
property more useful or valuable.” Kohn, 283 Wis. 2d at 16 (citing Kallas
Millwork v. Square D Co., 66 Wis. 2d 382, 386 (1975)). In contrast,
maintenance is “the ‘work of keeping something in proper condition; upkeep.’”
Hocking v. City of Dodgeville, 326 Wis. 2d 155, 177, 785 N.W.2d 398 (2010).
“This distinction is reasonable because improvements to real property have a
completion date whereas regular repairs and maintenance can continue ad
infinitum.” Peter v. Sprinkmann Sons Corp., 360 Wis. 2d 411, 427, 860 N.W.2d
308 (Ct. App. 2015).
To prevail on its motion for summary judgment, then, the defendant had
the burden of establishing that the work that Ahnert performed constituted an
“improvement” to the premises. According to the defendant, the overhaul of
Unit 5 constituted such an improvement; in support of this assertion, it relied
on the B&W contract, which provided for the renovation of the boiler, the
installation of new piping and the installation of new insulation; the defendant
also points to the amount of money spent with the expectation of capital
Viewing the evidence in the light most favorable to the plaintiffs, there is
evidence that Daniel Ahnert’s alleged exposures at the Oak Creek Power Plant
involved replacing parts, and cleaning out parts, of an existing boiler system.
The defendant has not submitted sufficient evidence to demonstrate, as a
matter of law, that that work was an improvement, and not maintenance. A
reasonable fact-finder could conclude that, even though the project was large,
expensive and labor-intensive, it actually constituted maintenance on an
existing boiler system. That fact-finder could conclude that replacing and
cleaning the parts of a large industrial boiler—renovating it—is the kind of
work that could continue ad infinitum, work that will need to be done again
and again. On the other hand, depending on what new parts were installed—
parts that never would need replacing? parts that were self-cleaning?—the
work improved the property, by making the boiler maintenance-free and
improving the value of the boiler, and even the plant. The fact-finder’s
determination would turn on evidence that the defendant has not provided. The
defendant will have the opportunity to present evidence on those issues to the
Because the court concludes that the defendant has not met its burden
of establishing that the CSOR bars the plaintiffs’ claims as a matter of law, and
because, construed in the light most favorable to the plaintiffs, the evidence
reveals genuine issues of material fact, the court will deny the defendant’s
motion for summary judgment on this issue.
For these reasons, the court denied the defendant’s summary judgment
motion on March 31, 2017. The court will confer with the parties at the
May 15, 2017 status conference as to the estimated length of trial, and possible
final pretrial conference and trial dates.
Dated in Milwaukee, Wisconsin this 15th day of May, 2017.
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