Norbert Nooyen v. Wisconsin Electric Power Company ( 2020 )

2020 WI App 9COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2019AP289
Complete Title of Case:
JACQUELINE NOOYEN, INDIVIDUALLY AND AS SPECIAL
ADMINISTRATOR OF THE ESTATE OF NORBERT NOOYEN,
PLAINTIFF-APPELLANT,
V.
WISCONSIN ELECTRIC POWER COMPANY, MADISON GAS AND
ELECTRIC CO., WISCONSIN POWER & LIGHT COMPANY AND
WISCONSIN PUBLIC SERVICE CORPORATION,
DEFENDANTS-RESPONDENTS.
Opinion Filed: January 22, 2020
Submitted on Briefs: December 10, 2019
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs
of Robert G. McCoy of Cascino Vaughn Law Offices, Chicago, Illinois.
Respondent
ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on the
brief of James A. Niquet, Travis J. Rhoades and William E. Keeler, III, of
Crivello Carlson S.C., Milwaukee.
2020 WI App 9COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP289 Cir. Ct. No. 2017CV1107
STATE OF WISCONSIN IN COURT OF APPEALS
JACQUELINE NOOYEN, INDIVIDUALLY AND AS SPECIAL
ADMINISTRATOR OF THE ESTATE OF NORBERT NOOYEN,
PLAINTIFF-APPELLANT,
V.
WISCONSIN ELECTRIC POWER COMPANY, MADISON GAS AND
ELECTRIC CO., WISCONSIN POWER & LIGHT COMPANY AND
WISCONSIN PUBLIC SERVICE CORPORATION,
DEFENDANTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for Brown County:
WILLIAM M. ATKINSON, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 STARK, P.J. Jacqueline Nooyen, individually and as special
administrator of the Estate of Norbert Nooyen, appeals a grant of summary
No. 2019AP289
judgment that dismissed her claims against Wisconsin Electric Power Company,
Madison Gas and Electric Company, Wisconsin Power & Light Company, and
Wisconsin Public Service Corporation (collectively, “the Utilities”) for violations
of the safe place statute, WIS. STAT. § 101.11 (2015-16).1 Jacqueline claims that
her husband, Norbert, developed mesothelioma as a result of being exposed to
airborne asbestos between 1970 and 1973 during the construction of two power
plants that were owned by the Utilities.
¶2 The circuit court granted the Utilities summary judgment,
concluding Jacqueline’s claims were barred by WIS. STAT. § 893.89, the ten-year
statute of repose for injuries resulting from improvements to real property
(hereinafter, “the construction statute of repose”).2 We agree with that conclusion.
The undisputed facts establish that Norbert’s injuries were the result of a structural
defect, rather than an unsafe condition associated with the structure. Accordingly,
under Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715
N.W.2d 598, the construction statute of repose bars Jacqueline’s claims. We reject
Jacqueline’s argument that applying the construction statute of repose in this case
improperly bars her claims retroactively, and we also reject her assertion that
applying the statute here violates her constitutional right to a remedy. We
therefore affirm.
1
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise
noted.
2
WISCONSIN STAT. § 893.89 was amended in 2018 to shorten the exposure period from
ten to seven years. See 2017 Wis. Act 235, § 27. Norbert was diagnosed with mesothelioma in
December 2016, and the instant lawsuit was filed in February 2017. It is undisputed that, under
these circumstances, the applicable version of § 893.89 is the 2015-16 version containing the
ten-year exposure period.
2
No. 2019AP289
BACKGROUND
¶3 The following facts are undisputed, for purposes of this appeal.
Norbert was a career pipefitter. In that capacity, he was involved in the original
construction of two nuclear power plants: the Point Beach Nuclear Power Plant
and the Kewaunee Power Station.
¶4 Norbert was employed by construction contractor Bechtel
Corporation at the Point Beach plant for approximately two years, beginning in
October or November 1970. The Point Beach plant was owned by a subsidiary of
Wisconsin Electric Power Company. Norbert was employed by contractor
Phillips Getschow at the Kewaunee plant from 1971 to 1973. The Kewaunee plant
was jointly owned by Madison Gas and Electric Company, Wisconsin Power &
Light Company, and Wisconsin Public Service Corporation.
¶5 On December 2, 2016, Norbert was diagnosed with mesothelioma.
On February 10, 2017, the Nooyens filed a complaint in the Milwaukee County
Circuit Court, alleging that Norbert’s mesothelioma was caused by his exposure to
airborne asbestos fibers during the time he worked at the Point Beach and
Kewaunee plants. The Nooyens’ complaint also alleged the Utilities were aware
that airborne asbestos was present during the construction of the Point Beach and
Kewaunee plants and “knew or should have known of the health hazards of
asbestos.” The Nooyens therefore asserted that the Utilities had violated their duty
to Norbert under the safe place statute by: failing to adequately warn him of the
dangers of asbestos exposure; failing to adequately instruct him about safety
precautions for asbestos exposure; failing to establish adequate safety measures to
protect him from asbestos exposure; failing to adequately test for asbestos;
employing contractors that failed to take reasonable precautions against the danger
3
No. 2019AP289
posed by asbestos; allowing the use of products containing asbestos; and failing to
assign or hire personnel qualified to recognize, evaluate, and control asbestos
exposure.
¶6 Venue for the Nooyens’ lawsuit was subsequently transferred to
Brown County, on the Utilities’ motion. Norbert died from mesothelioma on
July 19, 2018. In October 2018, the Utilities moved for summary judgment,
arguing the Nooyens’ safe place claims were barred by the construction statute of
repose. In December 2018, the circuit court issued a written decision granting the
Utilities’ summary judgment motion.
¶7 Thereafter, the circuit court allowed Jacqueline to file an amended
complaint substituting herself for Norbert as plaintiff in her capacity as special
administrator of his estate. The court subsequently entered a final judgment
dismissing Jacqueline’s claims against the Utilities, and Jacqueline now appeals.
STANDARDS OF REVIEW
¶8 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” WIS.
STAT. § 802.08(2).
¶9 Statutory interpretation and application also present questions of law
for our independent review. See McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d
358, 731 N.W.2d 273. In addition, we independently review the issue of whether
4
No. 2019AP289
a statute may be applied retroactively to a particular set of facts. Overlook Farms
Home Ass’n, Inc. v. Alternative Living Servs., 143 Wis. 2d 485, 492, 422 N.W.2d
131 (Ct. App. 1988). Finally, whether a statute violates a party’s constitutional
right to a remedy is a question of law that we review independently. Schwittay v.
Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶14, 246 Wis. 2d 385, 630
N.W.2d 772.
DISCUSSION
I. Application of the construction statute of repose
¶10 Determining whether the construction statute of repose bars
Jacqueline’s claims requires us to analyze the interplay between that statute and
the safe place statute. The safe place statute “is a negligence statute that imposes a
heightened duty on employers and owners of places of employment and public
buildings to construct, repair, or maintain buildings safely.” Mair, 291 Wis. 2d
132, ¶19. The statute provides, in relevant part:
Every employer shall furnish employment which shall be
safe for the employees therein and shall furnish a place of
employment which shall be safe for 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
safe.
WIS. STAT. § 101.11(1).
5
No. 2019AP289
¶11 The circuit court determined Jacqueline’s safe place claims were
barred by the construction statute of repose, WIS. STAT. § 893.89. The
construction statute of repose sets forth “the time period during which an action
for injury resulting from improvements to real property must be brought.” 3 Kohn
v. Darlington Cmty. Sch., 2005 WI 99, ¶13, 283 Wis. 2d 1, 698 N.W.2d 794. As
relevant here, the statute provides 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 any deficiency or defect in
the design, land surveying, planning, supervision or
observation of construction of, the construction of, or the
furnishing of materials for, the improvement to real
property.
Sec. 893.89(2). “Exposure period” means “the 10 years immediately following
the date of substantial completion of the improvement to real property.” Sec.
893.89(1).
¶12 Our supreme court addressed the interplay between the safe place
statute and the construction statute of repose in Mair. Based on a “plain reading
of the statute,” the court held that the construction statute of repose “bars safe
place claims resulting from injuries caused by structural defects, but not by unsafe
conditions associated with the structure, beginning ten years after a structure is
substantially completed.” Mair, 291 Wis. 2d 132, ¶29. In this case, it is
undisputed that Jacqueline’s safe place claims against the Utilities were filed more
3
The parties have stipulated that the Kewaunee and Point Beach power plants are
improvements to real property, as that term is used in WIS. STAT. § 893.89.
6
No. 2019AP289
than ten years after both the Kewaunee and Point Beach power plants were
substantially completed. Thus, the crucial inquiry for purposes of determining
whether the construction statute of repose applies is whether the safe place claims
resulted from an injury caused by a structural defect or by an unsafe condition
associated with the structure.4
¶13 A structural defect is “a hazardous condition inherent in the structure
by reason of its design or construction.” Id., ¶22 (quoting Barry v. Employers
Mut. Cas. Co., 2001 WI 101, ¶28, 245 Wis. 2d 560, 630 N.W.2d 517). It arises
from a breach of the duty to construct a safe building. Id. Stated differently, “[a]
defect is structural if it arises ‘by reason of the materials used in construction or
from improper layout or construction.’” Barry, 245 Wis. 2d 560, ¶28 (citation
omitted).
4
The Utilities argue the “plain language” of the construction statute of repose “protects
[them] from [Jacqueline’s] claims” regardless of whether those claims arose from an injury
caused by a structural defect or an unsafe condition associated with the structure. In support of
this assertion, they cite Kohn v. Darlington Community Schools, 2005 WI 99, ¶71, 283 Wis. 2d
1, 698 N.W.2d 794, in which our supreme court stated “the purpose of the [construction statute of
repose] is to protect individuals from liability based upon the actions that occur during their
involvement in improving the property.” The Utilities argue that because they were involved in
improving the Kewaunee and Point Beach power plants, the construction statute of repose
necessarily protects them “from claims for injury based on their actions during those construction
projects.”
The Utilities’ argument in this regard ignores Mair v. Trollhaugen Ski Resort, 2006 WI
61, 291 Wis. 2d 132, 715 N.W.2d 598, which our supreme court issued after Kohn. As discussed
above, the Mair court expressly addressed the interplay between the construction statute of repose
and the safe place statute, and it held that the statute of repose bars safe place claims arising from
injuries caused by structural defects, but not by unsafe conditions associated with the structure.
Mair, 291 Wis. 2d 132, ¶29. We are not free to disregard that holding. See Cook v. Cook, 208
Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Moreover, unlike Mair, Kohn did not address the
application of the construction statute of repose to a claim brought under the safe place statute.
We therefore use the Mair analysis to determine whether the construction statute of repose bars
Jacqueline’s safe place claims.
7
No. 2019AP289
¶14 An unsafe condition associated with the structure, in turn, arises
from “the failure to keep an originally safe structure in proper repair or properly
maintained.” Id., ¶27. Such conditions arise from “a breach of the statutory duty
to repair or maintain the property and generally involve the structure falling into
disrepair or not being maintained in a safe manner.” Mair, 291 Wis. 2d 132, ¶23.
¶15 The undisputed facts of this case establish that Jacqueline’s safe
place claims are the result of an injury caused by a structural defect, rather than an
unsafe condition associated with the structure. For purposes of the Utilities’
summary judgment motion, the parties stipulated that Norbert’s alleged exposure
to airborne asbestos occurred during the original construction of the Kewaunee
and Point Beach power plants. Specifically, Jacqueline contends that during the
original construction of the power plants, “asbestos fibers were released during
normal installation practices which required cutting and handling of thermal
insulation materials.” Jacqueline does not allege that the asbestos was properly
installed but then became unsafe over time because it was not appropriately
repaired or maintained. Instead, it is the original construction process that she
contends caused Norbert’s injury.
¶16 These undisputed facts establish that Norbert’s injury arose “by
reason of the materials used in construction or from improper … construction.”
See Barry, 245 Wis. 2d 560, ¶28 (citation omitted). In other words, the presence
of airborne asbestos during the original construction of the power plants was “a
hazardous condition inherent in [those structures] by reason of [their] design or
construction.” See id. Norbert’s injury was not caused by “the failure to keep an
8
No. 2019AP289
originally safe structure in proper repair or properly maintained.” See id., ¶27.
Jacqueline’s safe place claims are therefore based on an injury caused by a
structural defect, rather than an unsafe condition associated with the structure.5
¶17 Jacqueline contends this court previously held in Viola v. Wisconsin
Electric Power Co., 2014 WI App 5, 352 Wis. 2d 541, 842 N.W.2d 515 (2013),
and Calewarts v. CR Meyer & Sons Co., No. 2011AP1414, unpublished slip op.
(July 3, 2012), that “airborne asbestos” is an unsafe condition associated with the
structure. However, Viola and Calewarts are distinguishable because in both of
those cases the plaintiffs were exposed to airborne asbestos as a result of repair or
maintenance work on pipes covered with asbestos insulation. Viola, 352 Wis. 2d
541, ¶25; Calewarts, No. 2011AP1414, ¶¶5-7. Stated differently, in Viola and
Calewarts, it was the “regular maintenance and/or repair of the premises” after
their construction that caused asbestos insulation to be disturbed and therefore
created the unsafe conditions that caused the plaintiffs’ injuries. See Viola, 532
Wis. 2d 541, ¶21. As discussed above, Jacqueline alleges that Norbert was
exposed to airborne asbestos during the original construction of the Kewaunee and
Point Beach power plants, rather than during any subsequent repair or
maintenance work on those structures. The construction statute of repose bars her
claims under these circumstances.
5
In her reply brief, Jacqueline argues Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d
17, 284 N.W.2d 692 (Ct. App. 1979), aff’d, 100 Wis. 2d 120, 301 N.W.2d 201 (1981), stands for
the proposition that the safe place statute “covers unsafe workplace conditions which exist during
original construction of a building.” However, Dykstra did not involve the application of the
construction statute of repose and did not analyze whether the alleged injury was caused by a
structural defect or by an unsafe condition associated with the structure. Jacqueline’s reliance on
Dykstra is therefore misplaced.
9
No. 2019AP289
¶18 In the alternative, Jacqueline argues the construction statute of
repose does not bar her claims because the “maintenance” exception in WIS. STAT.
§ 893.89(4)(c) is applicable. That exception provides that the construction statute
of repose “does not apply to … [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.” Sec. 893.89(4)(c). Jacqueline suggests this
exception applies because the Utilities failed to “maintain a safe workplace”
during the original construction of the power plants.
¶19 Jacqueline’s argument regarding the maintenance exception is
contrary to the plain language of the statute, which limits the exception to actions
“for damages resulting from negligence in the maintenance … of an improvement
to real property.” Id. (emphasis added). By its plain language, the maintenance
exception applies when damages occur as the result of an owner or occupier’s
failure to maintain the improvement itself, not when the owner or occupier has
failed to maintain a safe workplace. As discussed above, Jacqueline’s safe place
claims are not premised on any allegation that the Utilities negligently maintained
the Kewaunee and Point Beach power plants; rather, she alleges negligence in the
original construction of those structures. The maintenance exception is therefore
inapplicable.6
6
In Mair, our supreme court noted that “a failure to ‘maintain’”—as that term is used in
WIS. STAT. § 893.89(4)(c)—“correlates to an unsafe condition associated with the structure.”
Mair, 291 Wis. 2d 132, ¶29. Thus, our conclusion that the “maintenance” exception does not
apply in this case is consistent with our conclusion that Norbert’s injury was not caused by an
unsafe condition associated with the structure.
10
No. 2019AP289
¶20 Jacqueline also argues the construction statute of repose should not
be interpreted to bar her safe place claims because the legislature has recently
“embraced a public policy to preserve rights of latent disease victims to recover
until diagnosis.” In support of this assertion, she observes that the legislature
enacted a new products liability statute in 2011 containing a fifteen-year statute of
repose, but the legislature included an exception to that time limit for any action
“based on a claim for damages caused by a latent disease.” See WIS. STAT.
§ 895.047; 2011 Wis. Act 2, § 31. The fact that the legislature has adopted a latent
disease exception to the products liability statute of repose actually undercuts
Jacqueline’s position, however, as the legislature has not amended the construction
statute of repose to include a similar exception.
¶21 Ultimately, because the undisputed facts establish that Norbert’s
injury was caused by a structural defect, rather than an unsafe condition associated
with the structure, we agree with the circuit court that the construction statute of
repose bars Jacqueline’s safe place claims. We therefore turn to Jacqueline’s
alternative arguments that even if Norbert’s injury was caused by a structural
defect, the court should not have granted summary judgment in favor of the
Utilities.
II. Retroactivity
¶22 Jacqueline first contends that the construction statute of repose
should not be applied in this case because doing so improperly bars her claims
retroactively. She observes that during the time period in which Norbert was
allegedly exposed to asbestos—i.e., 1970 to 1973—the construction statute of
repose did not provide any protection for owners of improvements to real
property. See WIS. STAT. § 893.155 (1973-74). She further observes that the
11
No. 2019AP289
construction statute of repose first provided protection for owners after it was
repealed and recreated in 1994—over twenty years after Norbert’s exposure to
asbestos occurred. See 1993 Wis. Act 309. She then asserts that the 1994 version
of the statute “contains no retroactivity provision relating back to the date of the
wrongful conduct,” and, as a result, we must presume that the statute was not
intended to apply retroactively. See United States Fire Ins. Co. v. E. D. Wesley
Co., 105 Wis. 2d 305, 319, 313 N.W.2d 833 (1982) (stating the “general rule in
Wisconsin” is that legislation is presumptively prospective unless the statutory
language clearly reveals an intent that the statute apply retroactively).
¶23 We reject Jacqueline’s argument because the undisputed facts show
that the circuit court did not, in fact, retroactively apply the construction statute of
repose to her claims. As this court has previously recognized, a plaintiff alleging
that he or she developed mesothelioma as a result of exposure to asbestos does not
have a legally cognizable claim until he or she is actually diagnosed. See Peter v.
Sprinkmann Sons Corp., 2015 WI App 17, ¶14, 360 Wis. 2d 411, 860 N.W.2d
308. Here, although Norbert was allegedly exposed to asbestos between 1970 and
1973, he was not diagnosed with mesothelioma until 2016 and therefore did not
have a “claim” against the Utilities until that time. Accordingly, the circuit court
did not retroactively apply the 2015-16 version of the statute of repose to bar
Jacqueline’s claims; instead, it applied the version of the statute that was in effect
when those claims came into existence in 2016 at the time of Norbert’s diagnosis.
¶24 In addition, Jacqueline’s retroactivity argument ignores the plain
language of WIS. STAT. § 893.89, which clearly shows that the legislature intended
the statute to apply to claims—like hers—that arose after the statute was repealed
and recreated in 1994. The statute expressly states: “Except as provided in
sub. (4), this section applies to improvements to real property substantially
12
No. 2019AP289
completed before, on or after April 29, 1994.” Sec. 893.89(5). This language
evinces a clear legislative intent that the statute should apply to improvements to
real property—like the Kewaunee and Point Beach power plants—that were
completed before April 29, 1994.
¶25 Subsection (4)(d), in turn, states that the statute “does not apply to
… [d]amages that were sustained before April 29, 1994.” WIS. STAT.
§ 893.89(4)(d). We have previously held that the term “damages” in
subsec. (4)(d) “means a legally cognizable claim for injuries or a compensable
right to recover for injuries.” Peter, 360 Wis. 2d 411, ¶14. The term does not
mean a “physical injury,” such as the “inhalation of asbestos fibers during
exposure.” Id., ¶¶12, 15. We therefore concluded in Peter that the exception in
subsec. (4)(d) did not apply to the plaintiff’s claim because although the plaintiff’s
father had been exposed to asbestos before April 29, 1994, there was no legally
cognizable claim based on that injury until his father was diagnosed with
mesothelioma in 2012. Id., ¶¶2, 14. Similarly, the exception does not apply in
this case because although Norbert was exposed to asbestos between 1970 and
1973, he did not have a legally cognizable claim until he was diagnosed with
mesothelioma in 2016.
¶26 Accordingly, the plain language of WIS. STAT. § 893.89 confirms
that the legislature intended the statute to apply to claims, like Jacqueline’s, where
the exposure at issue took place during construction occurring before 1994, but the
claim based upon that exposure arose after the statute was repealed and recreated
in 1994. We therefore reject Jacqueline’s argument that the circuit court
improperly applied the statute retroactively in order to bar her claims.
13
No. 2019AP289
III. Constitutional right to a remedy
¶27 Jacqueline next argues that if the construction statute of repose bars
her safe place claims, the statute is unconstitutional as applied to her because it
violates her constitutional right to a remedy. She cites article I, section 9 of the
Wisconsin Constitution, which provides:
Every person is entitled to a certain remedy in the laws for
all injuries, or wrongs which he may receive in his person,
property, or character; he ought to obtain justice freely, and
without being obliged to purchase it, completely and
without denial, promptly and without delay, conformably to
the laws.
Jacqueline asserts the “certain remedy” required by article I, section 9 entitles her
to a “day in court.” She argues that interpreting the construction statute of repose
to bar her claims would deny a day in court both to her and to “all victims of the
asbestos disease process due to the latency period for the disease exceeding the 10
year [exposure] period.”
¶28 Jacqueline’s argument is foreclosed by our supreme court’s decision
in Kohn. There, Lori Kohn was injured at a school sporting event in
September 2000 when she fell through a gap in bleachers that had been
constructed in 1969. Kohn, 283 Wis. 2d 1, ¶¶2-3. On appeal, our supreme court
concluded the construction statute of repose barred the Kohns’ claims against
ITW—the company that sold the bleachers to the school and supervised their
construction. Id., ¶3 & n.1, ¶81.
¶29 In so doing, the court specifically rejected the Kohns’ claim that
application of the construction statute of repose violated their constitutional right
to a remedy. The court observed that article I, section 9 of the Wisconsin
Constitution “confers no legal rights” and instead “applies only when a
14
No. 2019AP289
prospective litigant seeks a remedy for an already existing right.” Id., ¶37
(emphasis and citations omitted). The court explained:
A statute of repose “limits the time period within which an
action may be brought based on date of the act or
omission.” A statute of repose may therefore bar an action
before the injury is discovered or before the injury even
occurs. “[B]y definition, a statute of repose cuts off a right
of action regardless of the time of accrual.” As such, when
the legislature enacts a statute of repose, it “expressly
cho[o]se[s] not to recognize rights after the conclusion of
the repose period[ ].” In other words, a statute of repose
does not merely extinguish a party’s remedy, it
extinguishes the right of recovery altogether. Therefore,
statutes of repose do not violate the right to remedy
provision of Article I, Section 9 because any right of
recovery is extinguished at the end of the repose period and
the right for which the litigant seeks a remedy no longer
exists.
Id., ¶38 (citations omitted).
¶30 Applying the above analysis to the Kohns’ case, the supreme court
noted that the bleachers were substantially completed in 1969, and the “repose
period” for purposes of WIS. STAT. § 893.89 therefore ended in 1979. Kohn, 283
Wis. 2d 1, ¶39. The court reasoned:
As such, as of 1979, the Kohns possessed no right of
recovery against ITW. Therefore, because Article I,
Section 9 guarantees a remedy only for existing rights, and
the Kohns possessed no right of recovery when they
brought their action against ITW, § 893.89 does not violate
the constitutional guarantee in Article I, Section 9.
Kohn, 283 Wis. 2d 1, ¶39.
¶31 The same analysis is applicable here. In this case, Jacqueline did not
have a claim against the Utilities until Norbert was diagnosed with mesothelioma
in 2016. It is undisputed that at that point, the ten-year exposure period set forth in
WIS. STAT. § 893.89 had long since elapsed. Thus, because article I, section 9
15
No. 2019AP289
guarantees a remedy only for existing rights, and because Jacqueline possessed no
right of recovery at the time she commenced this lawsuit, applying § 893.89 to bar
her claims does not violate her constitutional right to a remedy. It is immaterial
that, because of mesothelioma’s long latency period, Norbert did not become
aware of his injury until 2016. As the Kohn court observed, a statute of repose
“may … bar an action before the injury is discovered or before the injury even
occurs.” Kohn, 283 Wis. 2d 1, ¶38. The legislature’s policy decision to bar
claims under those circumstances does not violate a party’s constitutional right to
a remedy. See id., ¶¶41-43.
By the Court.—Judgment affirmed.
16