The Eastern District of Wisconsin started 2016 off with a decision sure to impact the asbestos litigation world. In Ahnert v. Employers Insurance Company of Wausau et al., the District Court ruled that Wisconsin’s Statute of Repose did not foreclose the plaintiff from bringing asbestos-related claims against the defendants and denied the defendants’ motion for summary judgment.  Case No. 13-C-1456 (Jan. 6, 2016, E.D. Wis).

The lawsuit was brought by Beverly Ahnert, wife and executrix of the estate of Daniel Ahnert. Decedent Daniel Ahnert (“Decedent”) worked as a steamfitter for the Sprinkmann Sons Corporation from approximately 1955 to 1992, according to the complaint.  The complaint alleges that Decedent was exposed to asbestos while working as a steamfitter for Sprinkmann.  The complaint further alleges that these exposures caused Decedent to contract asbestos-related illnesses which were the alleged cause of his death.  The District Court’s findings of fact state that some of Decedent’s work as a steamfitter included covering pipes with insulation, cutting pipes, and working on turbines at various locations.

The defendants filed a motion for summary judgment, arguing, among other things, that the Wisconsin Statute of Repose (Wisconsin Statute § 893.89) bars injury claims that are brought more than ten years after an improvement to property has been substantially completed. Defendants asserted that Decedent’s construction work improved the properties and had been substantially completed over a decade ago; thus, the statute of repose should apply and bar plaintiff’s claims.  In previous cases that addressed this legislation, Wisconsin courts have found that the statute, titled “Action for injury resulting from improvements to real property,” was intended to “protect contractors who are involved in permanent improvements to real property.” Ahnert, No. 13-C-1456 at 14, citing Peter v. Sprinkmann Sons Corp., 360 Wis. 2d 411 (2015).  The Ahnert court noted a distinction between “persons or entities which make permanent improvements to real property” and “those who make regular repairs or do maintenance work,” finding that the legislature intended to protect the former class through the statute, but not the latter.  The court reasoned such a distinction is reasonable because there is a discernable completion date to permanent improvements whereas repair and/or maintenance work is ongoing.

The issue then became which class Decedent fell into: (1) a worker making permanent improvements to real property; or (2) a worker who was merely repairing and maintaining the property. The court found that Decedent was in the second class of employees and, as such, was not barred by the statute.  Especially decisive was the court’s citation to Hocking v. City of Dodgeville, which defined “maintenance” as “[t]he work of keeping something in proper condition; upkeep.”  326 Wis. 2d 155 (Wis. 2010).  Some of Decedent’s work included tearing down and rebuilding pipes, as opposed to removing or installing new systems, and as such, the court concluded that kind of work was more likely to keep the pipes in proper condition rather than to permanently improve them.  And because courts must view the facts in the light most favorable to the non-moving party in deciding summary judgment motions, the court concluded that it could not “definitively say” that Decedent’s work for Sprinkmann was an improvement to real property instead of repairs or maintenance.  Therefore, the court denied Sprinkmann’s motion for summary judgment and concluded that “the statute of repose does not apply to bar [Decedent’s] action.”

With this rejection of the statute of repose argument, defendants in asbestos litigation in Wisconsin remain vulnerable to plaintiffs’ claims. The Ahnert ruling has effectively limited the statute to apply only in cases where the defendant can show the intent and effect of the work was to permanently improve the real property.  This decision is especially crucial in light of Illinois’ recent decision inFolta v. Ferro Engineering in late 2015, which essentially came to the opposite conclusion.  It is not likely that statute of repose arguments in asbestos litigation are going away anytime soon, and the controversy surrounding such decisions will continue to grow as states come down differently on statutory interpretation and liability policy.