Ahnert v. Brand Insulations Inc. et al

Filing 199

ORDER Denying Employers Insurance of Wausau and Sprinkmann Sons Corporation's Motion for Summary Judgment 119 signed by Judge Charles N Clevert, Jr on 1/6/16. (cc: all counsel) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

BEVERLY AHNERT Individually and as Executrix
of the Estate of Daniel Ahnert, Deceased,
Plaintiff,
v.

Case No. 13-C-1456

EMPLOYERS INSURANCE COMPANY OF W AUSAU,
PABST BREW ING COMPANY,
SPRINKMANN SONS CORPORATION,
W ISCONSIN ELECTRIC POW ER COMPANY,
Defendants.

ORDER DENYING EMPLOYERS INSURANCE OF WAUSAU AND SPRINKMANN
SONS CORPORATION’S MOTION FOR SUMMARY JUDGMENT (DOC. 119)
Sprinkmann Sons Corporation (“Sprinkmann”) moves for summary judgment on
plaintiff’s negligence, strict product liability, and punitive damages claims. According to the
complaint, Sprinkmann sold, installed and removed asbestos products and manufactured
asbestos-containing products that caused Daniel Ahnert’s asbestosis and malignant
mesothelioma. Daniel Ahnert filed a lawsuit in this district in 2010 alleging that he had
been disagnosed with non-malignant asbestosis caused by asbestos exposure. Ahnert v.
CBS Corp., et al., Case No. 10-156 (E.D. Wis.) Shortly thereafter, the Judicial Panel on
Multidistrict Litigation transferred the case to the Eastern District of Pennsylvania, where
it was consolidated for pretrial purposes as part of MDL 875. Case No. 10-67443 (E.D.
Pa.) Rather than amending the complaint pending before the MDL court after being
diagnosed with mesothelioma, Ahnert filed suit in Milwaukee County Circuit Court. Daniel
Ahnert et al. v. Allied Insulation Supply Co., Inc., et al., Case No. 2011-CV-551. Daniel

Ahnert died on July 7, 2011, and his wife, Beverly Ahnert (hereinafter “plaintiff”), was
appointed executrix of the estate. She dismissed the Milwaukee County action and filed
a third lawsuit in the Eastern District of Wisconsin, again alleging that Daniel Ahnert
suffered from asbestos related diseases . . . including without limitation asbestosis.”
However, plaintiff now includes the malignant mesothelioma claim from January 4, 2011.
(Case No. 13-1456, Doc. 1 at 23.)
Plaintiff sought leave to amend the complaint in the MDL four years after the MDL
case was filed and three years after the mesothelioma diagnosis. Judge Eduardo C.
Robreno of the MDL denied the motion on May 22, 2014, because discovery had closed
and summary judgment motions were briefed. (Case No. 10-67443 (E.D. Pa.), Doc. 406.)
In addition, Judge Robreno granted in part and denied in part Sprinkmann’s motion for
summary judgment. He found sufficient evidence of exposure to asbestos-containing
insulation disturbed by Sprinkmann employees at the Oak Creek facility, but no such
exposure in the Milwaukee Public Schools. Judge Robreno remanded the statute of
repose issue to the transferor court, and severed the punitive damages claim. The
remanded case has since been transferred to Judge Pamela Pepper, where Sprinkmann
has filed a second motion for summary judgment on the issue of the statute of repose.
Sprinkmann filed a similar motion in this case, and also alleges that there is no evidence
of exposure to asbestos-containing products installed or supplied by Sprinkmann and no
evidence supporting a punitive damages claim.
SUMMARY JUDGMENT STANDARD
A motion for summary judgment should be granted “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(a). Where factual disputes do exist, the non-movant's
version of events is accepted as true at this stage of the proceedings. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The mere
existence of some factual dispute does not defeat a summary judgment motion; however,
there must be a genuine issue of material fact for the cause of action to survive. Id. at
247–48, 106 S. Ct. 2505.

“Material” means that the factual dispute must be

outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286,
1291 (7th Cir.1997). Failure to support any essential element of a claim renders all other
facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986). A “genuine” issue of material fact requires specific and sufficient evidence
that, if believed by a jury, would actually support a verdict in the nonmovant's favor. Fed.
R. Civ. P. 56(e); Anderson, 477 U.S. at 249, 106 S. Ct. 2505. The Supreme Court has
explained that, “regardless of whether the moving party accompanies its summary
judgment motion with affidavits, the motion may, and should, be granted so long as
whatever is before the district court demonstrates that the standard for the entry of
summary judgment, as set forth in Rule 56(c), is satisfied.” Celotex Corp., 477 U.S. at 323.
FINDINGS OF FACT1
Daniel Ahnert worked as a steamfitter out of Local 601 in Milwaukee from around
1955 to around 1992. (Pl.’s Ex. 1, ¶ 16.) Dr. Stephen Haber diagnosed Ahnert with
asbestos-related pleural disease and attributed this condition to each of Ahnert’s
1

For purposes of sum m ary judgm ent, this court did not include plaintiff’s proposed findings of fact that
were not supported by a citation to the record and/or other supporting m aterials as required by Civil Local Rule
56(b)(2)(B)(ii). In addition, the citations to the plaintiff’s exhibits refer to the docum ents filed as ECF 148. The
ECF exhibit num bers do not align with the exhibit labels on the docum ents; consequently, the court has cited
to the exhibits on the docum ents as identified in the docketing text.

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exposures to asbestos. (Pl’s Ex. 2.) Daniel Ahnert was diagnosed with malignant
mesothelioma in December of 2010 and passed away on July 7, 2011. (Pl.’s Ex. 2 at 6.)
His death certificate states that malignant mesothelioma was the cause of death. (Pl.’s Ex.
3.) Daniel Ahnert’s wife, BeverlyAhnert, is the duly appointed executrix of his estate. (See
Compl., ¶ 2).
In her complaint, Beverly Ahnert asserts that Sprinkmann sold, installed, and
removed asbestos products and manufactured asbestos-containing products.

(See

Compl., ¶ 15). She contends that, from approximately 1955 to 1980, Daniel Ahnert was
exposed to and inhaled airborne asbestos fibers released while using or working in
proximity to others using or removing such products. (Compl., ¶ 21). According to the
complaint, Daniel Ahnert suffered from “asbestos related diseases, including without
limitation malignant mesothelioma diagnosed on January 4, 2011, and non-malignant
asbestos conditions, including without limitation asbestosis.” (Compl., ¶ 23).
Although former co-worker John Burns testified regarding Daniel Ahnert’s alleged
exposure at Milwaukee Public School sites (see Burns Dep. at 50-52 attached as Ex. B to
Rhoades Aff.), Sprinkmann has already been granted summary judgment with respect to
Ahnert’s claims of exposure at Milwaukee Public Schools. (See E.D. Pa Case No.
10-CV-67443, Doc. 410, attached as Ex. E to Rhoades Aff.). Plaintiff agrees that any
claims based on exposure at Milwaukee Public Schools are barred. (Doc. 146, ¶ 11.)
Moreover, plaintiff has abandoned her claim that Sprinkmann was responsible for any
exposures after 1980. (Doc. 146, ¶ 19.)
On the other hand, Charles Lewitzke, a former ironworker, testified that he worked
with Daniel Ahnert, a steamfitter, on an outage at the Oak Creek Power Plant “around ‘68,
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‘69" for “at least four months.” (Pl.’s Ex. 4 at 11-14.)2 The work was an overhaul of a
General Electric fossil fuel turbine which required removal and reinstallation of insulation,
including asbestos blankets, asbestos sheets, and asbestos pipecovering. (Id. at 14, 1718, 20.) The work involved tearing down the turbine (taking off the entire top, removing the
spindle, the pistols and rings), putting in “new bearings and so forth,” “new rings and
whatnot,” and rebuilding it. (Id. at 12, 14, 15.) The turbine was already in place, but there
were pipes that needed to be covered. (Id. at 17.) Insulation packages at the Oak Creek
Power Plant outage were labeled with the word “asbestos” and the foreman and other
workers used the word “asbestos” to describe the insulation. (Id. at 19-21.) Lewitzke was
subsequently trained to identify insulation that contained asbestos and he relied on that
training during his deposition to assess whether the insulation he remembered at Oak
Creek and Port Washington contained asbestos. (Id. at 35-46.)
Ahnert’s duties on the Oak Creek outage included covering pipes, which he
performed on the turbine floor. (Id. at 15.) Ahnert stood approximately 20 feet from
workers who were removing and installing insulation. (Id. at 17-18.) The outage, including
all insulation work, was conducted in the ordinary manner for work during this period of
time. (Id. at 19-23.) Insulation work created large quantities of dust for the entirety of the
Oak Creek outage. (Id. at 17-19; Pl.’s Ex. 5, ¶ 11.) There were no safety procedures, such

2

Sprinkm ann challenged the deposition testim ony of Lewitzke because plaintiff did not establish that
his testim ony was unavailable during the discovery period in the MDL proceeding and/or that plaintiff should
be lim ited to the six-m onth period in 1989. However, Lewitzke was deposed in this litigation on July 8, 2014,
before the discovery deadline of February 27, 2015. Sopha v. Owens-Corning Fiberglas Corp., 230 W is. 2d
212, 244 (1999) and the doctrines of preclusion allow plaintiff to bring a second case to the extent that
Sprinkm ann was not granted sum m ary judgm ent in the prior litigation on the asbestos claim s or otherwise
dism issed with prejudice and an expectation of finality. Accordingly, the court will consider Lewitzke’s
testim ony.

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as masks or instruction, which would have protected workers on the turbine job from the
dangers of inhaling asbestos. (Pl.’s Ex. 4 at 19, 21-22.) On any WEPCO outage longer
than four weeks, Sprinkmann was hired as a contractor to supply and install insulation.
(Pl.’s Ex. 5, ¶¶ 9, 11.)
Between 1964 and 1965, Lewitzke worked with Daniel Ahnert at the Port
Washington Power House, another WEPCO facility, on a turbine outage that lasted six-toeight months during which time Ahnert covered pipes with insulation, cut pipes, and worked
on the turbine floor. (Pl.’s Ex. 4 at 24, 27-28, 31.) However, Lewitzke did not know how
long Daniel Ahnert was at Port Washington. (Id. at 28.) The Port Washington outage was
to repair a damaged spindle fiber. (Id. at 27.) On the Port Washington outage, many types
of insulation, including asbestos sheets, asbestos cement, and pipecovering, were
removed and reinstalled. (Id. at 28-29, 33-35.) The labels of insulation packages included
the word “asbestos.” (Id. at 35.) The removal and reinstallation of turbine insulation on the
Port Washington outage produced large quantities of dust. (Id. at 32.; Pl.’s Ex. 5, ¶ 11.)
There were no safety precautions in place, such as wearing masks, to protect workers from
the dangers of inhaling asbestos fibers. (Pl.’s Ex. 4 at 32-33, 36.) Lewitzke testified that
the Port Washington outage involved an Allis-Chalmers turbine; however, CBS corporate
designee Doug Ware identified a spindle replacement on a Westinghouse turbine at Port
Washington about seven years later. (Pl.’s Ex. 5 at 27; Pl.’s Ex. 13 at 31-32; Pl.’s Ex. 14
at PTWAS 167-168.)
Lewitzke was unable to provide any information regarding the brand name of the
material with which Ahnert worked. (See Lewitzke Dep. at 64-65, 68-69, 90, attached as

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Ex. G to Rhoades Aff.) He testified that he had a general recollection that there was some
sort of insulation and powder material that was mixed, but was unsure of the brand name
of the insulation involved. (See Lewitzke Dep. at 55-56, attached as Ex. G to Rhoades
Aff.) Lewitzke could not provide any testimony regarding the insulators that may have
been at either of those two facilities. (See Lewitzke, Dep. at 42, attached as Ex. G to
Rhoades Aff.)
Robert Wolter, a steamfitter with Local 601 in Milwaukee, worked with Daniel Ahnert
at Pabst Brewery between 1955 and 1959 performing the same tasks in the same area.3
Their work supported an effort to transfer between forty and fifty tanks from Schlitz to
Pabst. (Pl.’s Ex. 17 at 10-11, 20-22; Pl.’s Ex. 16, ¶ 3.) Wolter worked alongside Daniel
Ahnert on the tank transfer once or twice at each site for two to three weeks at a time.
(Pl.’s Ex. 16, ¶ 2.) Ahnert did not wear a mask during his work on the tank transfer. (Pl.’s
Ex. 17 at 74.) His duties on the tank transfer included disconnecting and reconnecting tank
piping. (Pl.’s Ex. 16, ¶ 5.) For approximately 60% of Ahnert’s work on the tank tansfer,
insulators between 20 and 30 feet from him cut three foot-long pieces of pipe insulation,
producing considerable amounts of airborne dust. (Pl.’s Ex. 16, ¶ 5; Pl.’s Ex. 17 at 21-26.)
On the tank transfer, a brand of pipecovering called Kaylo was installed on tank piping.

3
Sprinkm ann objects to the use of W olter’s testim ony. However, W olter was disclosed in this litigation
on June 13, 2013, and deposed on October 25, 2013, in the MDL litigation. In the MDL, plaintiff was required
to identify each product, each defendant who was liable because of the product, the location, the date of
exposure and all of the witnesses who would provide testim ony regarding the defendant’s liability regarding
each product. W olter’s notice of deposition in the MDL stated he would provide testim ony regarding OwensIllinois and Pabst. Nevertheless, there were no requirem ents with respect to disclosures or designations in
the litigation pending before this court and nothing prevented Sprinkm ann from taking W olter’s deposition or
reviewing the prior deposition prior to the end of discovery on February 27, 2015.

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(Pl.’s Ex. 17 at 22-23; Ex. 16, ¶ 6.) Pabst employees also worked on piping during Ahnert’s
work on the tank transfer. (Pl.’s Ex. 17 at 28-9.)
Sprinkmann was the insulation contractor that worked at Pabst. (Pl.’s Ex. 22 at 1314; Pl.’s Ex. 21 at 18:3-9.) When the tank transfer occurred, a Sprinkmann employee was
stationed at Pabst on a full-time basis. (Pl.’s Ex. 20 at 31:9-33:8, 43:4-7; Pl.’s Ex. 21 at
18:15-16; Pl.’s Ex. 17 at 973.) Jack Wetzel, a Sprinkmann deliveryman, testified that
Sprinkmann employees did insulation work at all of the Pabst buildings between 1955 and
1972. (Pl.’s Ex. 19.) Wetzel made about 75% of Sprinkmann’s deliveries to Pabst. Every
three weeks he brought insulation materials, such as block insulation, pipecovering, and
insulating cement, including One-Cote, Eagle “66,” and Carey. (Pl.’s Ex. 19.) Kaylo,
Carey, Eagle “66,” and One-Cote are listed in the Federal Register as asbestos-containing
products. (Pl.’s Ex. 6 at 5156, 5145, 5146.)
Before OSHA regulations were enacted in 1972, insulation installed on boilers,
turbines, and other thermal equipment contained 10-15% asbestos. (Pl.’s Ex. 7 at general
report at 15-17; Pl.’s Ex. 6.) Between the 1940s and the 1980s, gaskets installed in
industrial settings contained 50-80% asbestos. (Pl.’s Ex. 7 at general report at 21-22.)
Sheet packing used to make gaskets contained 30-50% asbestos. (Pl.’s Ex. 7 at general
report at 25.) Rope yarn packings contained 75-100% asbestos. (Pl.’s Ex. 7 at general
report at 25.) At large powerhouses such as Oak Creek and Port Washington, the vast
majority of pipecovering was not replaced during outages. (Pl.’s Ex. 8, ¶ 9; Pl.’s Ex. 9,
¶¶ 32-33.) Before OSHA regulations were implemented in 1972, insulation materials on
high-heat sections of turbines always contained asbestos. (Pl.’s Ex. 5, ¶¶ 3, 5, 7; Pl.’s Ex.
9, ¶¶ 9, 16.)
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William Sprinkmann, Jr. testified that he presumed that his company did work “in
maybe 35 states” as long as he had been involved in the company. (Pl.’s Ex. 50 at 7.) The
Wisconsin Industrial Commission, which plays an important role in defining the health and
safety responsibilities of Wisconsin employers, listed asbestos as a toxic substance in
regulations dating back to 1947. (Pl.’s Ex. 66 at 4.) After revisions to its regulations in
1955, the Wisconsin Industrial Commission kept asbestos on its list of toxic substances.
(Pl.’s Ex. 24 at 13.) In 1964, a study by Dr. Irving Selikoff regarding the health effects of
asbestos was distributed to members of Insulators Local 19, which included many
Sprinkmann employees.
Beginning in 1956, Sprinkmann employees filed workmen’s compensation claims
for asbestos-related diseases. (Pl.’s Ex. 51 at 1, 40, 48.) In the late 1960s and early
1970s, two members of the Sprinkmann family died from mesothelioma. (Pl.’s Ex. 52 at
3, 6.) Wetzel testified that he learned that asbestos was dangerous in the 1960s when he
heard from Sprinkmann employees that the owner and his son had died of asbestosrelated diseases. (Pl.’s Ex. 53 at 21-25.) After the OSHA regulations passed in 1972,
Sprinkmann resolved to stop using asbestos, but continued to sell its remaining inventory
of asbestos pipecovering. (Pl.’s Ex. 53 at 14-17.) In 1982, Sprinkmann’s controller told a
Sprinkmann employee to destroy 150 boxes of corporate records. (Pl.’s Ex. 54 at 24-27.)
Former GE and Westinghouse employee William LaPointe, prepared a declaration
filed in opposition to summary judgment stating that the turbine outages at Oak Creek and
Port Washington did not increase the turbine’s capacity to generate electricity beyond its
capacity at construction. (Pl.’s Ex. 9, ¶ 13.)

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CONCLUSIONS OF LAW
Sprinkmann moves for summary judgment on three grounds: (1) there is no
evidence that Daniel Ahnert was exposed to asbestos-containing products installed or
supplied by Sprinkmann; (2) Wisconsin’s construction statute of repose, Wis. Stat.
§ 893.89, bars plaintiff’s claims; and (3) plaintiff’s punitive damages claim must be
dismissed because there is no evidence that Sprinkmann engaged in any malicious
conduct or acted with intentional disregard to Daniel Ahnert’s rights. Because the court
has identified genuine issues of material fact, the motion will be denied and the claims
again Sprinkmann will proceed to a jury trial.
The first issue is one of causation. In a products liability action, negligence and
strict-products-liability claims require a plaintiff to prove that the alleged defect in the
defendant's product was a cause of the plaintiff's injury or damages.

Morden v.

Continental AG, 2000 WI 51, ¶ 45, 235 Wis.2d 325, 611 N.W.2d 659 (negligence); Zielinski
v. A.P. Green Indus., Inc., 2003 WI App 85, ¶ 8, 263 Wis.2d 294, 661 N.W.2d 491
(strict-products-liability). When determining causation on summary judgment, a court must
determine “whether the defendant's negligence was a substantial factor in contributing to
the result.” Zielinski, 263 Wis.2d 294, ¶ 16 (citation omitted). To be a “substantial factor,”
requires “that the defendant's conduct ha[ve] such an effect in producing the harm as to
lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the
popular sense.” Id. (citation and one set of quotation marks omitted). “A mere possibility
of . . . causation is not enough; and when the matter remains one of pure speculation or

10

conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court
to direct a verdict for the defendant.” Id. (citation and quotation marks omitted).
The Wisconsin Court of Appeals in Zielinski reversed the trial court's denial of
summary judgment after the trial court concluded that the evidence on summary judgment
was “insufficient to establish that [George] Zielinski had been exposed to any
asbestos-containing products supplied by Firebrick” while working for Ladish Company.
(See Id., ¶¶ 1, 4.) In ruling, the Wisconsin Court of Appeals relied on selected portions of
a co-worker’s deposition transcript suggesting that Zielinski had worked with him as a
mason doing refractory work “maybe about four or five years.” Further, another witness
testified that Ladish had “probably bought” Weber 48 from Firebrick and, therefore, a factfinder could infer that Zielinski used the product while working as a mason at Ladish. (Id.,
¶¶ 19-21.)
With respect to the outage at the Oak Creek Power Plant in the 1960s, Lewitzke
testified that Ahnert worked on the job at least four months, covering pipes with insulation,
cutting pipes, and working on the turbine floor. He also testified that Ahnert stood
approximately 20 feet from workers who were removing and reinstalling insulation, and that
asbestos blankets, sheets and pipe insulation were used on the outage. Lewitzke saw
boxes labeled asbestos and relied upon his subsequent training to identify the materials.
Additionally, he testified that the insulation work created large quantities of dust during the
outage. According to Lewitzke, there were no safety instructions about asbestos or
requirement to wear masks.
The evidence, taken in the light most favorable to the plaintiff, suggests that
Sprinkmann performed insulation work on any turbine outage work lasting more than four
11

weeks at WEPCO, that the insulation contained asbestos, that the work created dust, and
that Daniel Ahnert was working at the facility in proximity to the asbestos-containing
products and without a mask at the relevant time period. There is sufficient evidence for
a reasonable juror to infer that Sprinkmann caused Daniel Ahnert’s exposure to asbestos
at the Port Washington and Pabst sites. Lewitzke’s testimony placed Ahnert at the Port
Washington Power House between 1964 and 1965. It was Lewitzke’s recollection that
many types of insulations, including asbestos sheets, asbestos cement and pipecovering
were removed and reinstalled. The packages were labeled with the word asbestos, and
the work created dust. No safety precautions were taken, the steamfitters did not wear
respiratory masks, and Sprinkmann was hired as the insulation contractor to perform the
insulation work. As to Pabst, Wolter testified that Ahnert worked alongside him on tank
transfers from Schlitz to Pabst. Ahnert’s duties were to disconnect and reconnect tank
piping, and Ahnert did not wear a mask. Richard Handlos, another steamfitter who worked
at Pabst during the relevant time period, testified that it was “mostly Sprinkmann” that
removed the insulation. Daniel Tischer, who worked with Pabst from 1963 to 1993,
testified that from approximately 1964, Sprinkmann was on site to replace the wrap on the
pipes.

Finally, a Sprinkmann deliveryman testified that Sprinkmann employees did

insulation work at all of the Pabst buildings between 1955 and 1972. Hence, the court
concludes that there is sufficient evidence that Ahnert performed work involving asbestos,
that the asbestos was bought or probably bought/supplied by Sprinkmann, and that Ahnert
worked with or was exposed to the asbestos in his work. Summary judgment will be
denied on this issue.

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Next, Sprinkmann moves for summary judgment under Wisconsin’s statute of
repose. Plaintiff responds that the materials were defective before being furnished for
construction, that the maintenance or repair work was not an improvement, and that she
is entitled to a constitutional remedy.
Wisconsin Statute § 893.89 precludes claims for injury brought more than ten years
after the date of substantial completion of an improvement to property. Kohn v. Darlington
Comm. Sch., 2005 WI 99, ¶¶ 13–15, 283 Wis.2d 1, 698 N.W.2d 794. Because it is a
statute of repose, it "provides that a cause of action must be commenced within a specified
amount of time after the defendant's action which allegedly led to injury, regardless of
whether the plaintiff has discovered the injury or wrongdoing." Mair v. Trollhaugen Ski
Resort, 2006 WI 61, 291 Wis.2d 132, 150, 715 N.W.2d 598, 607 (quoting Tomczak v.
Bailey, 218 Wis.2d 245, 252, 578 N.W.2d 166 (1998)). In determining whether something
qualifies as an improvement to real property the court applies the following test: "A
permanent addition to or betterment of real property that enhances the capital value,
involves the expenditure of labor and money, and is designed to make the property more
useful and valuable." (Id., ¶ 17.) On the other hand, there is an exception for claims
brought against "[a]n owner or occupier of real property for damages resulting from
negligence in the maintenance, operation or inspection of an improvement to real
property." Wis. Stat. § 893.89(4)(c).
Plaintiff’s brief in opposition to summary judgment argues that there is a genuine
issue of material fact as to whether Ahnert’s exposures during outages at the Oak Creek
and Port Washington Power Plants and on the Pabst site were for maintenance or repair

13

work rather than an improvement to real property. Taken in the light most favorable to the
nonmoving party, the evidence suggests that all of the work involving Sprinkmann involved
existing mechanical systems. The purpose of the statute of repose is to protect contractors
who are involved in permanent improvements to real property. Peter v. Sprinkmann Sons
Corp., 2015 WI App 17, ¶ 23, 360 Wis. 2d 411, 860 N.W.2d 308. The legislature has
chosen to protect persons or entities which make permanent improvements to real
property, not to absolve those who make regular repairs or do maintenance work. Id. This
distinction is reasonable because improvements to real property have a completion date
whereas regular repairs and maintenance can continue ad infinitum. Id. (citing Kohn, 283
Wis.2d 1, ¶ 71, 698 N.W.2d 794). Indeed, the testimony suggests that Sprinkmann did all
of the insulation work at the Pabst buildings between 1955 and 1972.
Admittedly, it is difficult for Sprinkmann to respond to summary judgment with
evidence regarding specific projects because plaintiff has identified various time periods
during which Ahnert was on site rather than particular projects. However, to the extent that
there is any evidence regarding turbine outages, the evidence with respect to this
defendant suggests that the workers were tearing down and rebuilding rather than
removing or installing new systems. Moreover, the evidence regarding Pabst suggests that
Sprinkmann employees were on site five days a week for repair and recovering of the
pipes—work done to keep the pipes in proper condition. See Hocking v. City of Dodgeville,
2010 WI 59, ¶ 48, 326 Wis.2d 155, 785 N.W.2d 398 (defining “maintenance” as “[t]he work
of keeping something in proper condition; upkeep") (quotation marks and citation omitted).
Hence, on this record, the court cannot definitively say that Sprinkmann’s work constituted
an improvement rather than repair or maintenance. Because the purpose of the statute
14

of repose is to protect contractors who are involved in permanent improvements to real
property, the statute of repose does not apply to bar Ahnert’s action.4
As a final matter, plaintiff has asserted a claim for punitive damages. In Wisconsin,
the plaintiff may receive punitive damages if evidence is submitted that the defendant
acted maliciously or in an intentional disregard of the plaintiff's rights. Wis. Stat. § 895.043.
The statute “heightened the state of mind required of a defendant from a ‘wanton, willful
and reckless' disregard for rights of another to an ‘intentional disregard’ for rights of
another.” Berner Cheese Corp. v. Krug, 2008 WI 95, ¶ 63, 312 Wis. 2d 251, 752 N.W.2d
800 (2008) (citing Strenke v. Hogner, 2005 WI 25, ¶ 19, 279 Wis. 2d 52, 694 N.W.2d 296
(2005)). To warrant imposition of punitive damages, defendants' conduct must have been
deliberate and malicious. Henrikson v. Strapon, 2008 WI App 145, ¶¶ 14–16, 314 Wis.2d
225, 758 N.W.2d 205 (2008). Punitive damages cannot be awarded for conduct that did
not cause the injury. Henrikson, 2008 WI App 145, ¶ 19 (citing Kehl v. Economy Fire &
Cas. Co., 147 Wis.2d 531, 433 N.W.2d 279, 280 (Wis. Ct. App. 988) (“Juries are not given
license to roam the caverns of their consciences to punish conduct they deem despicable
unless a plaintiff can prove that he or she has suffered some actual damage as a result of
the conduct.”)).
On summary judgment, the court is called upon to determine whether questions of
fact exist. Plaintiff has created a genuine issue of material fact regarding notice of the
asbestos-related dangers inasmuch as Sprinkmann’s owner and son died of mesothelioma

4

The court rejects plaintiff’s argum ent that W is. Stat. § 893.89 is unconstitutional as applied if held
to bar the claim s for asbestos related conditions diagnosed after April 29, 1994, for the sam e reasons that the
W isconsin Suprem e Court rejected this argum ent in Kohn v. Darlington Community Schools, EMC, et al., 2005
W I 122, 698 N.W .2d 794 (2005).

15

by the late 1960s, Sprinkmann had access to literature identifying asbestos as a toxic
substance, a 1964 study regarding the health effects of asbestos was distributed to
members of Insulators Local 19 (which included Sprinkmann employees), and Sprinkmann
employees began filing workmen compensation claims for asbestos-related diseases
beginning in 1956. Nevertheless, any ruling on this issue appears to be premature in light
of the prior request for consolidation that may be renewed before Judge Pepper. The
punitive damages issue in the lower case number was severed by Judge Robreno in the
MDL and was not transferred to this district. Therefore, to the extent that the claims may
be decided in a single action, the presiding judge will have to determine how to proceed
with the issue. Now, therefore,
IT IS ORDERED that Sprinkmann Sons Corporation and Employers Insurance
Company of Wausau’s motion for summary judgment is denied.
Dated at Milwaukee, Wisconsin, this 6th day of January, 2016.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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