Rural Mutual Insurance Company v. Lester Buildings, LLC

2019 WI 70
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP001837
COMPLETE TITLE: Rural Mutual Insurance Company,
Plaintiff-Appellant-Petitioner,
v.
Lester Buildings, LLC and The Phoenix Insurance
Company,
Defendants-Third-Party
Plaintiffs-Respondents,
West Bend Mutual Insurance Company,
Defendant-Respondent,
Jim Herman, Inc.,
Defendant-Co-Appellant,
v.
Van Wyks, Inc.,
Third-Party Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 269,915 N.W.2d 729
(2018 – unpublished)
OPINION FILED: June 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 20, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Maryann Sumi & Valerie Bailey-Rihn
JUSTICES:
CONCURRED:
DISSENTED: KELLY, J. dissents, joined by A.W. BRADLEY, J.
(opinion filed).
NOT PARTICIPATING: ABRAHAMSON, J. did not participate,
ZIEGLER, J. withdrew from participation.
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Monte E. Weiss, Charles W. Kramer, and Weiss Law
Offices S.C., Mequon. There was oral argument by Monte E. Weiss.
For the defendant-third-party-plaintiff-respondent, there
was a brief filed by Kevin A. Christensen, Patricia A. Stone,
and Wilson Elser Moskowitz Edelman & Dicker, LLP, Milwaukee.
There was oral argument by Kevin A. Christensen.
For the third-party-defendant-respondent, there was a brief
filed by Eugene M. LaFlamme, Esq., Michael A. Snider, Esq., and
McCoy Leavitt Laskey LLC, Waukesha. There was oral argument by
Eugene M. LaFlamme.
For the defendant-respondent, there was a brief filed by
Jeffrey Leavell, Danielle N. Rousset, and Jeffrey Leavell, S.C.,
Racine. There was oral argument by Jeffrey Leavell.
2
2019 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1837
(L.C. No. 2014CV1354)
STATE OF WISCONSIN : IN SUPREME COURT
Rural Mutual Insurance Company,
Plaintiff-Appellant-Petitioner,
v.
Lester Buildings, LLC and The Phoenix Insurance
Company,
Defendants-Third-Party FILED
Plaintiffs-Respondents,
West Bend Mutual Insurance Company, JUN 18, 2019
Defendant-Respondent, Sheila T. Reiff
Clerk of Supreme Court
Jim Herman, Inc.,
Defendant-Co-Appellant,
v.
Van Wyks, Inc.,
Third-Party Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. Rural Mutual Insurance
Company seeks review of an unpublished per curiam decision of
No. 2016AP1837
the court of appeals1 affirming the circuit court's grant of
summary judgment dismissing Rural Mutual's subrogation claims.2
The circuit court determined that Rural Mutual's claims against
Lester Buildings, LLC, Phoenix Insurance Company, Van Wyks,
Inc., and West Bend Mutual Insurance Company were barred
pursuant to a subrogation waiver contained in a Lester
Buildings' contract with Rural Mutual's insured, Jim Herman,
Inc. ("Herman"). The circuit court also found that Wis. Stat.
§ 895.447 did not void that subrogation waiver.3
¶2 The court of appeals affirmed the circuit court and
dismissed Rural Mutual's claims. However, the court of appeals
declined to address whether Wis. Stat. § 895.447 voided the
subrogation waiver, reasoning that the argument was
insufficiently developed. We granted review as to two issues:
Does § 895.447 void the subrogation waiver at issue? And was
the subrogation waiver an unenforceable exculpatory contract
contrary to public policy?
¶3 We conclude that Wis. Stat. § 895.447 does not void
the subrogation waiver in Lester Buildings' contract because the
waiver does not limit or eliminate tort liability. We also
1Rural Mut. Ins. Co. v. Lester Buildings, LLC, No.
2016AP1837, unpublished slip op. (Wis. Ct. App. Apr. 26, 2018).
2Judges Maryann Sumi and Valerie Bailey-Rihn of Dane County
Circuit Court presided.
3All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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No. 2016AP1837
conclude that the subrogation waiver is not an unenforceable
exculpatory contract contrary to public policy. We therefore
affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 As the court of appeals correctly noted, "[t]he
procedural history of this case is lengthy and complicated."
Rural Mut. Ins. Co. v. Lester Buildings, LLC, No. 2016AP1837,
unpublished slip op., ¶2 (Wis. Ct. App. Apr. 26, 2018). In
2009, Herman entered into a contract with Lester Buildings for
the design and construction of a barn on its property. The
contract included the following language:
Both parties waive all rights against each other
and any of their respective contractors,
subcontractors and suppliers of any tier and any
design professional engaged with respect to the
Project, for recovery of any damages caused by
casualty or other perils to the extent covered by
property insurance applicable to the Work or the
Project, except such rights as they have to the
proceeds of such property insurance and to the extent
necessary to recover amounts relating to deductibles
of self-insured retentions applicable to insured
losses. . . . This waiver of subrogation shall be
effective notwithstanding allegations of fault,
negligence, or indemnity obligation of any party
seeking the benefit or production of such waiver.
¶5 Herman's barn required concrete in several areas,
including the foundation, walls, and piers that supported the
roof. The specifications for the concrete were provided by
Lester Buildings, but Herman entered into a separate contract
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No. 2016AP1837
with Van Wyks in May 2010 to provide the concrete.4 The barn
that Lester Buildings and Van Wyks constructed was covered by
Herman's insurance policy with Rural Mutual. In that policy,
Rural Mutual explicitly allowed its insured, Herman, to waive
its rights without interfering with Rural Mutual's insurance
coverage: "You may waive your right of recovery in writing
before a loss occurs without voiding the coverage."
¶6 The barn was completed in June 2010. In May 2013, one
half of the barn collapsed due to strong winds, killing or
causing catastrophic injuries to a large number of Herman's
cattle. Rural Mutual asserts that the barn collapsed due to the
improper installation of steel rebar cages in the concrete piers
supporting the barn's roof. The cages were allegedly installed
by Van Wyks several inches below where Lester Buildings' design
had called for them to be installed, which led to the column
tops cracking from the strong winds.5 Rural Mutual paid
approximately $607,000 to rebuild Herman's barn and
approximately $51,000 for the losses related to cattle and other
miscellaneous damages.
4
The Van Wyks' contract also contained a waiver of claims,
similar to that found in the Lester Buildings' contract, which
read: "Both parties waive all rights against each other and any
of their respective contractors, subcontractors and suppliers
. . . ." Van Wyks' contract is not at issue on appeal.
5
The parties dispute who is at fault regarding where the
rebar cages were ultimately placed.
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No. 2016AP1837
¶7 In 2014, Rural Mutual brought a subrogation action
against Lester Buildings and its insurer, Phoenix, alleging that
Lester Buildings had breached its contract with Herman and had
been negligent in placing the rebar cages lower than where the
specifications required. Lester Buildings and Phoenix then
filed third-party cross-claims against Van Wyks and its insurer,
West Bend, alleging that if Lester Buildings was liable to Rural
Mutual, then Van Wyks would be responsible for any damages owed.
Rural Mutual filed an amended complaint which included a count
against West Bend, pursuant to Wisconsin's direct action
statute, Wis. Stat. § 632.24.6 Lester Buildings also moved to
join Herman as a defendant in the case. Lester Buildings and
Van Wyks, and their respective insurers (collectively the
"Contractors"), filed separate motions for summary judgment
against Rural Mutual. The Contractors asserted that the
subrogation waiver in the Lester Buildings' contract barred
Rural Mutual's claims against all of them.
¶8 The circuit court granted summary judgment to the
Contractors on all of Rural Mutual's claims, reasoning that the
6 Wisconsin Stat. § 632.24 reads:
Any bond or policy of insurance covering
liability to others for negligence makes the insurer
liable, up to the amounts stated in the bond or
policy, to the persons entitled to recover against the
insured for the death of any person or for injury to
persons or property, irrespective of whether the
liability is presently established or is contingent
and to become fixed or certain by final judgment
against the insured.
5
No. 2016AP1837
subrogation waiver was enforceable and precluded Rural Mutual's
claims. The circuit court determined that Gerdmann and Dykstra
controlled its interpretation of Wis. Stat. § 895.447 and
resolved the claims against Rural Mutual. Gerdmann v. United
States Fire Ins. Co., 119 Wis. 2d 367, 350 N.W.2d 730 (Ct. App.
1984); Dykstra v. Arthur G. McKee & Co., 100 Wis. 2d 120, 301
N.W.2d 201 (1981). In affirming the circuit court's decision,
the court of appeals did not address Rural Mutual's argument
that § 895.447 barred the subrogation waiver because it found
Rural Mutual's argument regarding the specific waiver to be
"woefully insufficient." Rural Mut., No. 2016AP1837, ¶20.7
Rural Mutual filed a motion to reconsider, which was denied.
Rural Mutual then petitioned this court for review.
II. STANDARD OF REVIEW
¶9 We review a decision on summary judgment using the
same methodology as the circuit court. Green Spring Farms v.
Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987).
Summary judgment shall be granted where the record demonstrates
7 However, in a footnote, the court of appeals stated that
if it had reached the issue, it would have concluded that Wis.
Stat. § 895.447 did not void the subrogation waiver. Rural
Mut., No. 2016AP1837, ¶23 n.6. The court of appeals observed
that the subrogation waiver does not limit Herman from
recovering against Lester Buildings in all circumstances. Id.
Instead, it limits Herman from recovering damages from Lester
Buildings that were covered by insurance and limits recovery by
the insurer for damages paid under the insurance policy. Id.
For example, the court of appeals discerned that if the collapse
was not covered by an insurance policy, there would be no limit
on Lester Buildings' tort liability. Id.
6
No. 2016AP1837
"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). The facts related to this issue are not
in dispute and therefore only questions of law remain.
Statutory interpretation and the interpretation of an insurance
policy present questions of law that this court reviews de novo.
Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, ¶¶12, 28,
248 Wis. 2d 1031, 637 N.W.2d 45.
III. ANALYSIS
¶10 This case involves the validity of a subrogation
waiver contained in Lester Buildings' contract with Rural
Mutual's insured, Herman. The Contractors argue that Rural
Mutual's subrogation claims are entirely precluded by the
subrogation waiver in Lester Buildings' contract with Herman.
Rural Mutual asserts that Wis. Stat. § 895.447 voids the
subrogation waiver. In the alternative, Rural Mutual asserts
that the subrogation waiver is an unenforceable exculpatory
contract contrary to public policy.8
A. Wisconsin Stat. § 895.447 does not void the
subrogation waiver.
¶11 We first interpret Wis. Stat. § 895.447 to determine
whether it voids the subrogation waiver. Statutory
interpretation begins with the language of the statute and if
the meaning is plain, the inquiry ordinarily ends. State ex
8
Rural Mutual concedes that if the subrogation waiver is
valid, all of its claims would be extinguished.
7
No. 2016AP1837
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. "A statute's purpose or scope may
be readily apparent from its plain language or its relationship
to surrounding or closely-related statutes——that is, from its
context or the structure of the statute as a coherent whole."
Id., ¶49.
¶12 We begin with an examination of the plain language of
Wis. Stat. § 895.447, which reads:
Any provision to limit or eliminate tort
liability as a part of or in connection with any
contract, covenant or agreement relating to the
construction, alteration, repair or maintenance of a
building, structure, or other work related to
construction, including any moving, demolition or
excavation, is against public policy and void.
(Emphasis added.) Neither § 895.447 nor surrounding statutes
define the term "tort liability." "Statutory language is given
its common, ordinary, and accepted meaning, except that
technical or specially defined words or phrases are given their
technical or special definitional meaning." Kalal, 271 Wis. 2d
633, ¶45. "Technical terms or legal terms of art appearing in a
statute are given their accepted technical or legal
definitions . . . ." See Bosco v. LIRC, 2004 WI 77, ¶23, 272
Wis. 2d 586, 681 N.W.2d 157; see also Wis. Stat. § 990.01(1).
¶13 The dispute lies in whether the subrogation waiver
here limits or eliminates "tort liability" and is therefore
void. Due to the absence of a statutory definition for the
legal term "tort liability," we look to Black's Law Dictionary
for assistance. A "tort" is defined as a "civil wrong . . . for
8
No. 2016AP1837
which a remedy may be obtained." Tort, Black's Law Dictionary
1717 (10th ed. 2014); see also Curda-Derickson v. Derickson,
2003 WI App 167, ¶17, 266 Wis. 2d 453, 668 N.W.2d 736 (citing to
Black's Law Dictionary for the definition of tort). "Liability"
is defined as "[t]he quality, state, or condition of being
legally obligated or accountable; legal responsibility to
another or to society, enforceable by civil remedy or criminal
punishment." Liability, Black's Law Dictionary 1053 (10th ed.
2014). Taken together, "tort liability" is the legal obligation
or responsibility to another resulting from a civil wrong or
injury for which a remedy may be obtained.9
¶14 Rural Mutual selectively reads the words "waive all
rights against each other" together with the words
"notwithstanding allegations of fault, negligence, or
indemnity," in the Lester Buildings' contract and concludes that
this language eliminates tort liability in violation of Wis.
Stat. § 895.447. The subrogation waiver must be read in its
entirety, however, to understand exactly what is being waived:
"Both parties waive all rights against each other . . . for
recovery of any damages . . . to the extent covered by property
insurance . . . . This waiver of subrogation shall be effective
9The Supreme Court of Michigan recently took a similar
approach in defining the term "tort liability" when there was no
statutory definition or case law defining the term. See In re
Bradley Estate, 835 N.W.2d 545, 555 (Mich. 2013).
9
No. 2016AP1837
notwithstanding allegations of fault, negligence, or indemnity
obligation of any party . . . ." (Emphasis added.)10
¶15 The subrogation waiver does not limit or eliminate the
legal responsibility of the Contractors to Herman for the
collapse of Herman's barn. The Contractors and any other
subcontractors or suppliers who constructed the barn are still
liable to Herman for their negligent acts.11 Instead, the
subrogation waiver waives Herman's right to recover damages from
the Contractors for their wrongful acts to the extent those
damages are covered by a property insurance policy such as the
one between Herman and Rural Mutual. Responsibility for payment
of damages, the remedy for tort liability, has shifted from the
Contractors to Rural Mutual.12 The dissent improperly equates
collection of damages with liability and asserts that if Herman
cannot collect all of its damages from the Contractors, then the
10
Contrary to Rural Mutual's assertion, the language
"notwithstanding [any] allegations of fault, negligence, or
indemnity" does not broaden the subrogation waiver; rather, it
is illustrative of the types of claims that may be brought.
11
The waiver stated that Lester Buildings and Herman "waive
all rights against each other and any of their respective
contractors, subcontractors and suppliers of any tier" and do so
"notwithstanding allegations of fault, negligence . . . ." The
waiver therefore unambiguously applies to all of the
"contractors, subcontractors and suppliers of any tier." As a
contractor to Herman, Van Wyks was included within this
provision.
12
Tort liability, "the legal obligation or responsibility
to another resulting from a civil wrong or injury for which a
remedy may be obtained," does not specify from whom the remedy
may be obtained.
10
No. 2016AP1837
Contractors' liability is limited.13 However, the Contractors
could be 100 percent liable for wrongful conduct but, based on
the subrogation waiver expressly allowed by Rural Mutual's
policy, Rural Mutual could be responsible for paying damages to
Herman for property loss.
¶16 Moreover, the remedy that may be obtained as a result
of the Contractors' civil wrong is not limited because Herman
may still recover damages that are not covered by its policy
with Rural Mutual, including any deductibles applicable to its
losses.14 In fact, Herman pursued and ultimately resolved its
claims against the Contractors for uncovered losses they
allegedly caused.15
¶17 Lastly, we examine prior case law interpreting Wis.
Stat. § 895.447 to corroborate its plain meaning. See Legue v.
City of Racine, 2014 WI 92, ¶61, 357 Wis. 2d 50, 849 N.W.2d 837;
Force ex rel. Welcenbach v. American Family Mut. Ins. Co., 2014
WI 82, ¶31, 356 Wis. 2d 582, 850 N.W.2d 866. Only one case has
applied the plain language of Wis. Stat. § 895.447, Gerdmann,
13
The dissent writes: "[o]f course the Contractors' tort
liability to Herman is limited——the subrogation clause made it
responsible for only 20 percent of the damage it caused."
Dissent, ¶39.
14
The subrogation waiver provides an exception for rights
to the proceeds of the property insurance and, as necessary, to
recover amounts relating to deductibles.
15
Herman was ultimately made whole through a combination of
its policy with Rural Mutual and its ability to sue the
Contractors for damages not covered by that policy.
11
No. 2016AP1837
119 Wis. 2d 367, and it supports our conclusion regarding the
subrogation waiver at issue. In Gerdmann, the court of appeals
held that an indemnity clause between Roen, a contractor, and
Manitowoc, the property owner, was not void under Wis. Stat.
§ 895.49, the statutory precursor to § 895.447.16 Gerdmann, 119
Wis. 2d at 374. The Gerdmann court reasoned that the indemnity
agreement at issue "neither limits nor eliminates Manitowoc's
tort liability to third parties [Gerdmann]. Rather, it makes
Roen the insurer should damages result." Id. The Gerdmann
court relied on this court's decision in Dykstra, 100
Wis. 2d 120, which upheld an indemnification agreement executed
prior to the codification of the precursor to § 895.447. In a
footnote the court stated: "[w]e note in passing, however, that
16 The indemnity agreement in Gerdmann read:
Contractor shall indemnify the Owner and Engineer
against and hold the Owner and Engineer harmless from
any and all liability for damages on account of
injury, including death, to persons, including
employees of Contractor, or damage to property
resulting from or arising out of or in any way
connected with the performance of work under this
Contract by Contractor or any Subcontractor. In
addition, Contractor shall reimburse Owner for all
costs, expenses, and loss incurred by them in
consequence of any claims, demands, and causes of
action, whether meritorious or not, which may be
brought against them and arising out of the operations
covered by the Contract. . . . Contractor shall pay
any costs, including Attorney's fees, that may be
incurred by Owner in enforcing this indemnity. . . .
Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 374,
350 N.W.2d 730 (Ct. App. 1984).
12
No. 2016AP1837
it does not appear that this statute [§ 895.447] necessarily
outlaws indemnity agreements of the kind with which this opinion
is concerned." Dykstra, 100 Wis. 2d at 130 n.4. The Gerdmann
court characterized this court's observation in Dykstra as
"important" because it indicated that this court "did not
believe that the statute clearly voids such indemnity
agreements." Gerdmann, 119 Wis. 2d at 374. As in Gerdmann, the
subrogation waiver neither limits nor eliminates the
Contractors' tort liability, it simply makes Rural Mutual the
insurer should property damage result. Therefore, we conclude
that § 895.447 does not void the subrogation waiver here because
it does not limit or eliminate tort liability.
B. The subrogation waiver does not relieve a party from
liability for harm caused by its own negligence and therefore it
is not an unenforceable exculpatory contract.
¶18 Rural Mutual asserts that the subrogation waiver is an
unenforceable exculpatory contract that is contrary to public
policy. While Rural Mutual did not brief this argument to the
court of appeals, we will nonetheless consider it.17 To the
extent that Rural Mutual argues that Wisconsin law prohibits the
enforcement of exculpatory contracts for reckless conduct, there
is no evidence in the record to establish reckless conduct on
17See e.g., Hopper v. City of Madison, 79 Wis. 2d 120, 137,
256 N.W.2d 139 (1977) (noting that whether this court will
consider an issue not raised before the circuit court "depends
upon the facts and circumstances of each case.").
13
No. 2016AP1837
the part of the Contractors, and therefore we will not reach
that issue.18
¶19 In Merten v. Nathan, 108 Wis. 2d 205, 210, 321
N.W.2d 173 (1982), we defined an exculpatory contract as one
which "relieve[s] a party from liability for harm caused by his
or her own negligence." In its oral ruling in this case, the
circuit court held that the subrogation waiver was not an all-
encompassing avoidance of liability and therefore did not meet
the definition of an exculpatory contract.19 The circuit court
relied upon Rainbow Country Rentals & Retail, Inc. v. Ameritech
Publishing, Inc., 2005 WI 153, 286 Wis. 2d 170, 706 N.W.2d 95,
where this court held that a contract restricting recoverable
damages, but not releasing a party from liability, did not meet
the operational definition of an exculpatory contract.
¶20 We agree with the circuit court's conclusion. As
detailed above, the subrogation waiver in this case did not
exculpate the Contractors from liability, it merely shifted the
responsibility for payment of damages. If the Contractors were
negligent or otherwise at fault, the subrogation waiver shifted
recovery of damages for property loss to Herman's insurer, Rural
18We decline to answer a question unsupported by the facts
of the case or to render an advisory opinion on an issue that is
not ripe for adjudication. See Tammi v. Porsche Cars N. Am.,
Inc., 2009 WI 83, ¶3, 320 Wis. 2d 45, 768 N.W.2d 783.
19The circuit court also relied on the equal bargaining
positions of the parties; however, we can identify no authority
to support the consideration of bargaining positions when
deciding if a contract meets the definition of exculpatory.
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No. 2016AP1837
Mutual, only to the extent covered by Herman's policy with Rural
Mutual. Herman could still recover damages not covered by its
policy with Rural Mutual from the Contractors, including any
deductibles.
¶21 We also observe that the court of appeals rejected a
public policy challenge to a contractual subrogation waiver in a
similar situation involving sophisticated parties where the
waiver was expressly authorized by the insurer in its policy.
See Factory Mut. Ins. Co. v. Citizens Ins. Co. of America, 2006
WI App 16, ¶20, 288 Wis. 2d 730, 709 N.W.2d 82. Here, Rural
Mutual expressly anticipated and allowed for this outcome, as
evidenced by its policy language permitting Herman to "waive
[its] right of recovery in writing before a loss occurs without
voiding the coverage." Rural Mutual received a benefit, in the
form of premium payments, for expressly allowing its insured to
allocate risk in this way. We will not rewrite Rural Mutual's
policy to exonerate it from a risk that it contemplated and for
which it received a premium. See Algrem v. Nowlan, 37
Wis. 2d 70, 79, 154 N.W.2d 217 (1967) ("'when parties to a
contract adopt a provision . . . which contains no element of
ambiguity, the court has no right, by a process of
interpretation to relieve one of them from any disadvantageous
terms which [it] has actually made'") (quoted source omitted).
¶22 The subrogation waiver in this case does not immunize
the allegedly negligent parties from liability or require the
injured party to go uncompensated, and thus it is not an
unenforceable exculpatory contract contrary to public policy.
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No. 2016AP1837
IV. CONCLUSION
¶23 We conclude that Wis. Stat. § 895.447 does not void
the subrogation waiver in Lester Buildings' contract because the
waiver does not limit or eliminate tort liability. We also
conclude that the subrogation waiver is not an unenforceable
exculpatory contract contrary to public policy. We therefore
affirm the court of appeals and uphold the grant of summary
judgment.
By the Court.—The decision of the court of appeals is
affirmed.
¶24 SHIRLEY S. ABRAHAMSON, J., withdrew from
participation.
¶25 ANNETTE KINGSLAND ZIEGLER, J., did not participate.
16
No. 2016AP1837.dk
¶26 DANIEL KELLY, J. (dissenting). The court's error is
really pretty simple. Where the Legislature said that a
contract may not limit a tortfeasor's liability, the court heard
that a contract may not limit the victim's right to be made
whole. These are not the same things. Because the court said
they are, I respectfully dissent.
¶27 Demonstrating where the court's analysis stopped
tracking Wis. Stat. § 895.447 requires some table-setting. So
I'll start with the central parties and some hypothetical
numbers. Jim Herman, Inc. ("Herman") hired Lester Buildings,
LLC, and others ("the Contractors") to build a barn. The barn
failed because of the Contractors' (alleged) negligence, causing
Herman significant damages. Rural Mutual Insurance Company
("Rural") paid Herman for most of the damage he suffered, and
the Contractors paid the balance. For the sake of simplicity,
I'll say the total damages were $100,000, Rural paid $80,000 of
that, and because of the contract clause at issue in this case,
the Contractors paid $20,000.
¶28 Next we need to know what we mean when we talk about
"tort liability." The court provided a workable definition——it
is "the legal obligation or responsibility to another resulting
from a civil wrong or injury for which a remedy may be
obtained." Majority op., ¶13. In this case, therefore, when we
speak of tort liability we are speaking of "[the Contractors']
legal obligation or responsibility to [Herman] resulting from a
civil wrong or injury for which a remedy may be obtained." Id.
That is to say, we look at this from the perspective of what the
Contractors owe Herman for their tortious behavior.
1
No. 2016AP1837.dk
¶29 Now we are ready to assess the contract's impact on
the tort liability involved in this case. Without Rural's
insurance payment and the contract's subrogation waiver, the
Contractors would be liable to Herman for $100,000. But with
the insurance payment and subrogation waiver, the Contractors
are liable to Herman for only $20,000. In either scenario,
Herman still receives $100,000. The question is whether the
latter scenario represents the limitation or elimination of tort
liability.
¶30 The court sees no difference in tort liability between
these two scenarios. In fact, it says "[t] he subrogation
waiver does not limit or eliminate the legal responsibility of
the Contractors to Herman for the collapse of Herman's barn.
The Contractors and any other subcontractors or suppliers who
constructed the barn are still liable to Herman for their
negligent acts." Id., ¶15 (footnote omitted). But how can that
be true if the duty to pay Herman has decreased from $100,000 to
$20,000? The court does not explain, but does give some insight
into the nature of its error.
¶31 I think the court's misunderstanding stems from the
following four errors: (1) its basic misunderstanding of tort
law; (2) its failure to distinguish between casualty insurance
policies and commercial general liability ("CGL") insurance
policies; (3) its conflation of contract and tort liability; and
(4) its shift in focus from liability to wholeness.
¶32 The court's first error goes to the very concept of
torts. The raison d'être of tort law is holding tortfeasors
responsible for the damages they cause. The court, however,
2
No. 2016AP1837.dk
isn't so sure. It says: "Tort liability, 'the legal obligation
or responsibility to another resulting from a civil wrong or
injury for which a remedy may be obtained,' does not specify
from whom the remedy may be obtained." Id., ¶15 n.12. Yes,
actually it does. The remedy may be obtained from the
tortfeasor. The court's own definition of "tort liability"
should have informed it that we really do know the identity of
the one against whom a remedy may be had. The "legal
obligation" and the "remedy" to which the court refers are
reciprocals. The one with the right to a remedy is the one to
whom the legal obligation is owed. Inversely, the one with a
legal obligation owes it to the one with a remedy. So if a
civil wrong gives rise to a legal obligation to someone else,
the "someone else" is the person who has the right to pursue the
remedy. And that person may pursue the remedy against the one
who owes the legal obligation. So the court cannot maintain its
definition of "tort liability" while professing agnosticism
about the target of the remedy.
¶33 We used to know this. "An individual is personally
responsible for his own tortious conduct." Oxmans' Erwin Meat
Co. v. Blacketer, 86 Wis. 2d 683, 692, 273 N.W.2d 285 (1979).
That is to say, the injured person has a remedy against the
tortfeasor. We have recognized this as a basic proposition as
recently as 2001: "It is a basic principle of law, as well as
common sense, that one is typically liable only for his or her
own acts, not the acts of others." Lewis v. Physicians Ins. Co.
of Wisconsin, 2001 WI 60, ¶11, 243 Wis. 2d 648, 627 N.W.2d 484
(footnote omitted). For what is a tortfeasor liable? Damages,
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of course: "Tort law has generally been viewed as serving three
broad social purposes: (1) as a matter of justice, tort law
shifts the losses caused by a personal injury to the one at
fault . . . ." CLL Assocs. Ltd. P'ship v. Arrowhead Pac. Corp.,
174 Wis. 2d 604, 610, 497 N.W.2d 115 (1993) (emphasis added).
The tortfeasor's responsibility for the damages he causes is so
basic that over a century ago Justice Oliver Wendell Holmes
thought we were all agreed on this proposition. "I assume that
common-sense is opposed to making one man pay for another man's
wrong, unless he actually has brought the wrong to pass
according to the ordinary canons of legal responsibility."
Oliver Wendell Holmes Jr., Agency, 5 Harv. L. Rev. 1, 14 (1891).
¶34 Although we used to know this, we have apparently
forgotten. So now we say that "the Contractors could be 100
percent liable for wrongful conduct but . . . Rural Mutual could
be responsible for paying damages to Herman for property loss."
Majority op., ¶15.1 What would Justice Holmes say about this?
He would say "I assume that common-sense is opposed to making
[Rural] pay for [the Contractors'] wrong, unless [Rural]
actually has brought the wrong to pass according to the ordinary
canons of legal responsibility." Holmes, supra at 14. We used
to say the same thing. See Oxmans' Erwin Meat Co., 86
Wis. 2d at 692; CLL Assocs. Ltd. P'ship, 174 Wis. 2d at 610.
1 The phrase I elided from my quote of the court's opinion
was this: "based on the subrogation waiver expressly allowed by
Rural Mutual's policy . . . ." Majority op., ¶15. The efficacy
of that waiver depends on the enforceability of the subrogation
waiver. If Wis. Stat. § 895.447 invalidates the subrogation
waiver, then the fact that the policy allows for such a waiver
is entirely irrelevant.
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¶35 The court's second through fourth errors all fluoresce
in this single sentence: "Responsibility for payment of
damages, the remedy for tort liability, has shifted from the
Contractors to Rural Mutual." Majority op., ¶15. The court's
second error was conflating casualty and CGL insurance policies.
CGL policies insure against, inter alia, the insured's tort
liability. Casualty policies, generally speaking, pay for loss
without respect to anyone's tort liability. So when the court
casually says the responsibility to pay for Herman's losses
"shifted" from the Contractors to Rural, it means that a
casualty insurer, instead of a CGL insurer, was responsible for
paying for the loss. This is significant because a casualty
insurer does not promise to pay for someone's torts; it promises
to pay for property loss. So payments made pursuant to Rural's
policy have nothing to do with tort liability. The court's
error on this point feeds directly into its third error——the
failure to distinguish between tort and contract liability.
¶36 To accurately determine whether the subrogation clause
limited tort liability, we must account for the nature of the
obligations that brought $100,000 into Herman's hands. Rural
paid $80,000 to Herman. But it did not do so because it
committed a tort against Herman. It did so because it issued a
casualty insurance policy in which it promised to pay Herman for
certain property losses. In other words, Rural was liable to
Herman in contract, not tort. The Contractors, on the other
hand, paid $20,000 based on their tort liability to Herman. So
Herman received $80,000 based on contract liability and $20,000
based on tort liability. Therefore, by "shifting" to Rural the
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Contractor's responsibility to pay Herman for the damage it
caused, the subrogation clause converted $80,000 of tort
liability into contract liability. So the court's statement
that "[t]he Contractors could therefore be 100 percent liable
for wrongful conduct but, based on the subrogation waiver
expressly allowed by Rural Mutual's policy, Rural Mutual could
be responsible for paying damages to Herman for property loss"
cannot possibly be true. Majority op., ¶15. The "shift" made
the Contractors only 20 percent liable for their tort.
¶37 The court says this conclusion is a result of my
mistaken equation of "tort liability" and "damages": "The
dissent improperly equates collection of damages with liability
and asserts that if Herman cannot collect all of its damages
from the Contractors, then the Contractors' liability is
limited."2 Id. But I made no such equation. All I have done is
repeat the age-old understanding that there is a necessary and
inextricable link between tort liability and damages. It is
necessary and inextricable because "damages" are part of the
very definition of a tort. "Tort claims comprise the familiar
elements of duty, breach, causation, and damage." Springer v.
Nohl Elec. Prod. Corp., 2018 WI 48, ¶36, 381 Wis. 2d 438, 912
N.W.2d 1; see also United States v. Burke, 504 U.S. 229, 234
(1992) ("A 'tort' has been defined broadly as a 'civil wrong,
2
This statement is actually a little ironic because it is
the court's focus on Herman's ability to collect rather than the
Contractor's liability to pay that forms one of its fundamental
errors. See infra, ¶14. My analysis has nothing to do with
anyone's ability to collect anything. It is entirely about the
tortfeasor's legal obligation to pay.
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other than breach of contract, for which the court will provide
a remedy in the form of an action for damages.'") (quoted source
omitted); Anderson v. Green Bay & W.R.R., 99 Wis. 2d 514, 516,
299 N.W.2d 615 (Ct. App. 1980) ("Before a cause of action for
negligence can be successfully alleged, there must exist a duty
of care on the part of the defendant, a breach of that duty, a
causal connection between the conduct and the injury, and an
actual loss or damage as a result of the injury.") (footnote
omitted); and Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531,
247 N.W.2d 132 (1976) ("In order to constitute a cause of action
for negligence there must exist: (1) A duty of care on the part
of the defendant; (2) a breach of that duty; (3) a causal
connection between the conduct and the injury; and (4) an actual
loss or damage as a result of the injury.").
¶38 So there can be no tort liability without damages.
And as the court's own definition says, to be liable for a tort
means to owe a "legal obligation or responsibility" to the
injured party. What is the nature of that "obligation or
responsibility"? To pay damages. And if the person is relieved
of the responsibility for some of those damages, it necessarily
follows that his tort liability has been, in the words of the
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statute, "limited."3 And this has nothing to do with Herman's
collection of damages; it relates entirely to the tortfeasor's
liability for them, which leads to the court's fourth error.
¶39 The court's analysis is inaccurate because the
provisions of Wis. Stat. § 895.447 are directed at the
Contractors and their liability, whereas the court is focused on
Herman and its wholeness. The statute does not prohibit
contract clauses that prevent a tort victim from being made
whole. It prohibits contract provisions that limit or eliminate
the tortfeasor's liability. The court sees no difference
between the two, which is why it can say "the remedy that may be
obtained as a result of the Contractors' civil wrong is not
limited because Herman may still recover damages that are not
covered by its policy with Rural Mutual." Majority op., ¶16.
3Neither Gerdmann v. United States Fire Ins. Co., 119
Wis. 2d 367, 350 N.W.2d 730 (Ct. App. 1984), nor Dykstra v.
Arthur G. McKee & Co., 100 Wis. 2d 120, 301 N.W.2d 201 (1981),
support the majority's position. Nor are they inconsistent with
mine. Both the Gerdmann and Dykstra courts addressed indemnity
agreements, not subrogation waivers. In an indemnity agreement,
one contracting party stands in relation to the other as an
insurer of tort liability, as does an insurer who issues a CGL
policy. A tortfeasor with a CGL policy is still entirely liable
to the injured party for damages; the insurance policy simply
makes a contracted-for pool of resources available to satisfy
the judgment. An indemnity agreement performs largely the same
function——that is, it does not shift liability, it just makes
someone else's resources available to satisfy the judgment. We
know Wis. Stat. § 895.447 does not forbid insurance for tort
liability because the statute says so: "This section does not
apply to any insurance contract." § 895.447(2). On the other
hand, a subrogation waiver is not an agreement to act as the
tortfeasor's liability insurer. It simply eliminates part of
the tortfeasor's legal responsibility to pay damages to the
injured party.
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Of course the Contractors' tort liability to Herman is limited——
the subrogation clause made it responsible for only 20 percent
of the damage it caused. That is the statute's focus, not
Herman's full recovery. Yes, Herman can turn to its own
casualty insurer to obtain a contract-based recovery for its
loss. But the statute has nothing to say about that. The
statute says the construction contract may not limit the
Contractors' tort-based liability to Herman. By "shifting"
responsibility for its tort liability to Herman's casualty
insurer, the subrogation clause quite obviously limited the
Contractors' tort-based liability to Herman.
¶40 Finally, there is this. The court does not explain
what Wis. Stat. § 895.447 actually does. Presumably, the court
would agree that the statute must prohibit some type of
contractual provision that operates against one of the four
elements of a tort (duty, breach, causation, damage). It
concludes today that the statute does not refer to provisions
that reduce the tortfeasor's legal obligation to pay damages to
the victim. But it says nothing about which tort element the
statute does immunize against contractual revision. For all of
these reasons, I respectfully dissent.
¶41 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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