American Family Mutual Insurance Company v. Current Electric Company ( 2023 )

COURT 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.
December 13, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP408 Cir. Ct. No. 2020CV1392
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
PLAINTIFF-APPELLANT,
V.
CURRENT ELECTRIC COMPANY AND UNITED FIRE & CASUALTY COMPANY,
DEFENDANTS,
SUNVEST SOLAR, INC.,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Racine County:
JON E. FREDRICKSON, Judge. Reversed and cause remanded for further
proceedings.
Before Gundrum, P.J., Neubauer and Lazar, JJ.
No. 2022AP408
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. In 2017, the roof of a building caught fire
underneath a solar-panel array for which Sunvest Solar, Inc. was the general
contractor during installation. American Family Mutual Insurance Company filed
a strict products liability claim against Sunvest, alleging both a design defect and a
failure to warn. That claim was dismissed by the circuit court on summary
judgment based on the court’s conclusion that the opinions of American Family’s
electrical engineer were insufficient to create a triable issue on certain elements of
the cause of action.
¶2 On appeal, American Family argues its expert’s opinions were
sufficient to establish that the risk of rodent damage to the solar-panel array was
foreseeable and rendered the array unreasonably dangerous. Moreover, American
Family argues the expert’s report establishes that there were reasonable alternative
designs that would have rendered the array reasonably safe. We agree. We also
agree with American Family’s argument that no further expert opinion testimony
was necessary to establish a duty to warn. Accordingly, we reverse and remand
for further proceedings consistent with this opinion.
BACKGROUND
¶3 In 2011, Our Savior Lutheran Church installed a roof-mounted solar-
panel system on its building. Sunvest was the general contractor for the project
and purchased the solar panels from a distributor. Current Electric Company
performed the installation. The building was subsequently sold to Circa on 7th
LLC.
2
No. 2022AP408
¶4 On November 28, 2017, a fire originated near the roof’s peak under
a solar panel. American Family, Circa on 7th’s insurer, alleged that the fire was
caused by rodent damage to the system’s wiring, which removed the insulation
and left bare wire exposed. This, in turn, caused electrical “arcing” that started the
fire.
¶5 American Family paid to remediate the damage. It then commenced
this action, advancing as relevant here a strict products liability claim against
Sunvest. American Family’s claim included both design defect and failure-to-
warn components. As to the former, American Family alleged the system’s design
failed to include any guarding around the panel perimeters to prevent rodent
access, and there was no metal conduit to protect the wiring from rodent damage.
As to the latter, American Family claimed that the system failed to instruct the
installer to guard the wiring against rodent damage and failed to warn the
customer of the risk of fire created by rodent damage. According to American
Family, such an instruction or warning would have reduced or eliminated the
foreseeable risk of fire posed by the system.
¶6 American Family retained electrical engineer Robert Neary as an
expert to testify as to his opinions about the cause of the fire. Neary was tasked
with determining whether the risk of rodent damage should have been known
during the panel design and installation phases. He was also asked to opine as to
whether, if that risk was known, the installation contractor should have used an
alternative design or method that could have ameliorated that risk.
¶7 As relevant here, Neary reached two conclusions. First, he opined
that “[r]odent damage to internal and exterior wiring has been a well-known
problem in the electrical industry for decades, well before the design and
3
No. 2022AP408
installation of the subject solar array.” Second, he concluded that “[m]odifications
to the design or materials used were available to prevent the rodent damage to the
subject solar array wiring from causing a fire.” As set forth in more detail below,
Neary’s report contained his analysis that led him to those two conclusions, and he
noted the availability of two conductor products that would have prevented rodent
damage to the solar array wiring.
¶8 Sunvest sought the dismissal of the strict products liability claim on
summary judgment. The motion argued that Neary’s expert opinions were too
general. Specifically, Sunvest argued that Neary failed to opine that this particular
solar array was at risk of rodent damage. Sunvest further argued that Neary’s
opinion about alternative design or materials was inadequate because he “does not
offer the opinion that the designer or contractor should have used something else
or that the system was unreasonably dangerous.”
¶9 The circuit court granted Sunvest’s summary judgment motion. The
court reasoned that the strict products liability statute, WIS. STAT. § 895.047
(2021-22),1 “requires [that] the defective condition be a cause [of] plaintiff’s
damages. The plaintiff does not have the correct experts to proceed under the
design defect or a failure to warn claim against either [the panel manufacturer] or
Sunvest.” American Family now appeals Sunvest’s dismissal.
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
4
No. 2022AP408
DISCUSSION
¶10 We review a grant of summary judgment de novo. Estate of
Paswaters v. American Fam. Mut. Ins. Co., 2004 WI App 233, ¶13, 277 Wis. 2d
549, 692 N.W.2d 299. Summary judgment is appropriate when the moving party
is entitled to judgment as a matter of law and no genuine issue of material fact
exists. WIS. STAT. § 802.08(2). At the summary judgment stage, all facts and
reasonable inferences from those facts are viewed in the light most favorable to
the nonmoving party. Bohm v. Leiber, 2020 WI App 52, ¶8, 393 Wis. 2d 757,
948 N.W.2d 370.
¶11 American Family’s complaint advanced a single strict products
liability claim against Sunvest, but it had two components. The first component
was a claim for a defective design, which requires proof that “the foreseeable risks
of harm posed by the product could have been reduced or avoided by the adoption
of a reasonable alternative design by the manufacturer and the omission of the
alternative design render[ed] the product not reasonably safe.” WIS. STAT.
§ 895.047(1)(a).
¶12 The second claim was for failure to include adequate instructions or
warnings with the product. A product is defective under that theory “only if the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the
manufacturer and the omission of the instructions or warnings renders the product
not reasonably safe.” Id.
¶13 In addition to these matters, by statute the strict products liability
claimant must show by a preponderance of the evidence four things: that the
defective condition rendered the product unreasonably dangerous to persons or
5
No. 2022AP408
property; that the defective condition existed at the time the product left the
control of the manufacturer; that the product reached the end user or consumer
without substantial changes from the condition in which it was sold; and that the
defective condition was a cause of the claimant’s damages. WIS. STAT.
§ 895.047(1)(b)-(e).2
¶14 WISCONSIN STAT. § 895.047 was enacted in 2011, and the parties
quarrel about whether foreseeability of harm is an element of a strict products
liability claim.3 The dispute surrounding foreseeability of harm is academic in this
case: even if American Family must prove foreseeability, Neary’s expert report
was sufficient to create a triable issue of fact on that point.
¶15 Though Neary’s report did not use the word “foreseeable,” many of
his opinions quite obviously went to that criterion. Neary stated that rodent
damage to electrical wiring of all sizes was a known problem for decades in the
electrical industry prior to the design and installation of the solar-panel array here.
He further wrote that rodents such as squirrels and mice have constantly growing
2
The parties’ briefs contain no argument concerning the fact that Sunvest was the
general contractor for the solar-panel array’s installation and was not the manufacturer.
Similarly, there is no argument concerning the allegedly defective condition of the panel array at
time of manufacture nor argument about whether the panels were in the same condition upon
receipt. We do not address these matters. See Techworks, LLC v. Wille, 2009 WI App 101, ¶27,
318 Wis. 2d 488, 770 N.W.2d 727.
3
It seems clear that at common law, foreseeability of harm was not required. See Green
v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶56, 245 Wis. 2d 772, 629 N.W.2d 727 (“Thus,
regardless of whether a manufacturer could foresee potential risks of harm inherent in its
defective and unreasonably dangerous product, strict products liability holds that manufacturer
responsible for injuries caused by that product.”). The current statutory language appears to
abrogate this rule, although we need not definitively resolve that issue given the existing state of
the record. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286
Wis. 2d 774, 703 N.W.2d 707 (observing that the court of appeals decides cases on the narrowest
grounds).
6
No. 2022AP408
teeth and are attracted to soft metals like copper and aluminum for sharpening.
Finally, he addressed solar installations specifically:
Solar panel arrays are prime targets for rodent damage.
Rodents look for protection from the elements especially in
the winter. A rooftop solar array in the wintertime can
provide shelter and warmth. Solar panel[s] are normally
located on the roof with the most southern exposure, which
is exposed to the most sunlight. Sunlight hitting the solar
panels during the day, even in the wintertime, will create a
warm shelter under the panel.
An article included with Neary’s report referred to rodents chewing wires as a
“common problem in the [photovoltaic] industry.”
¶16 We do not require that experts utter magic words when offering their
opinions. See Drexler v. All Am. Life & Cas. Co., 72 Wis. 2d 420, 432, 241
N.W.2d 401 (1976). A clear inference from Neary’s opinions was that the risk of
rodent damage to solar installations should have been known during the design
and installation phases of this particular solar array.4 Neary’s opinion was
sufficient to allow a reasonable factfinder to conclude that there was a foreseeable
risk of harm due to rodent damage.
¶17 Sunvest also argues that Neary’s report was inadequate to create a
triable issue of fact regarding whether the solar-panel array was unreasonably
dangerous to persons or property. Again, we disagree. Beyond the fact that a fire
actually occurred in this case, Neary included in his report a January 2007 article
discussing the risk of solar-panel fires and advising home inspectors to “[c]heck
for damage from rodents and other pests, which could compromise wiring or
4
We are unpersuaded that Neary’s opinion was deficient because it failed to state that
this particular solar power array was at risk of rodent damage. Neary’s report discusses why all
solar arrays are at risk—a category that includes the specific array at issue here.
7
No. 2022AP408
insulation.” Again, a reasonable factfinder could infer from Neary’s analysis that
the solar-panel installation was unreasonably dangerous.
¶18 Finally, Neary’s report was sufficient to create a triable issue
regarding the availability of a reasonable alternative design. Neary specifically
opined that there were two types of rodent-resistant cable wraps, either of which
“would have prevented the rodent damage to the solar array wiring.” This opinion
is, like any of Neary’s opinions, subject to adversarial testing, but a reasonable
factfinder could rely upon it to find that there was a reasonable alternative design
that would have rendered the solar array safe.
¶19 One of American Family’s arguments pertains specifically to its
failure-to-warn claim, which Neary’s report did not address. Instead, American
Family argues that no expert testimony was required to establish that the risk of
rodent damage to the solar-panel wiring could have been reduced or avoided by
the provision of reasonable instructions or warnings. Sunvest counters that
without expert testimony, American Family cannot meet its obligation to show
that “the defendant had a duty to warn and [that] the danger was reasonably
foreseeable.” Tanner v. Shoupe, 228 Wis. 2d 357, 365 n.3, 596 N.W.2d 805(Ct. App. 1999).
¶20 We disagree with Sunvest. As set forth above, a factfinder could
reasonably conclude that the risk of rodent damage to the solar-panel wiring was
both foreseeable and rendered the installation unreasonably dangerous. From this,
the factfinder could reasonably infer that Sunvest had a duty to warn about the
dangers of rodent damage such that the installer or consumer could take efforts to
mitigate those risks. As American Family points out, the adequacy of a warning is
typically a matter for the jury to decide, Schuh v. Fox River Tractor Co., 63
8
No. 2022AP408
Wis. 2d 728, 739, 218 N.W.2d 279 (1974), and in certain cases, it may be
necessary to introduce expert testimony to establish a warning’s inadequacy. But
here—where it is undisputed that Sunvest provided no warning—the matter of
whether a warning should have been given is not so unusually complex or esoteric
as to require expert testimony. See Racine Cnty. v. Oracular Milwaukee, Inc.,
2010 WI 25, ¶28, 323 Wis. 2d 682, 781 N.W.2d 88 (“[I]f the court or jury is able
to draw its own conclusions without the aid of expert testimony, ‘the admission of
such testimony is not only unnecessary but improper.’” (citation omitted)).
¶21 Based upon the foregoing, we reverse the grant of summary
judgment in favor of Sunvest and remand for further proceedings consistent with
this opinion.
By the Court.—Order reversed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
9