Wisconsin Court of Appeals Finds Statute of Repose Did Not Apply In Parking Garage Fatality Case, Affirms $39 Million Judgment Against Panel Installer, But Finds Insurer Only Liable For Policy Limit Of $10 Million
By: Matt Fricker - Attorney
In Wosinski v. Advance Cast Stone, Inc., 2017 WI App ____, 2014AP1961 (July 11, 2017), the Wisconsin Court of Appeals affirmed in part and reversed in part the circuit court’s award of $39 million in the suit over a fatal accident at a Milwaukee County parking garage. In its 67-page unanimous opinion, the appellate court addressed numerous issues; in its most important ruling, the could held that the defendant’s insurer, instead of being liable for the entire award, need only cover about a quarter of the amount.
In 2010, a 13-ton decorative concrete panel fell from the O'Donnell Park garage, killing 15-year-old Jared Kellner and injuring two other people. In 2013, a Milwaukee County jury found Advance Cast Stone (ACS), installer of the panel, 88% percent at fault. ACS’ insurer, Liberty Surplus, had issued policies with $10 million coverage. Liberty disputed coverage but defended ACS under a reservation of rights. The circuit court held that Liberty had breached its duty to defend ACS and held Liberty was obligated to pay the entire $39 million award.
ACS’ primary argument on appeal was that Wisconsin’s 10-year statute of repose for bringing claims based on improvements to real property barred the plaintiffs’ claim. The appellate court disagreed and held that the statute’s exception for fraud, concealment, and misrepresentation applied. Evidence showed that ACS did not follow the original design for the panels when installed and submitted as-built drawings that did not reflect changes to the design.
ACS also disputed the jury’s award of $15 million in punitive damages. The appellate court held that ACS’ deviation from the construction and installation design plan for the panel and failure to submit a change order before making these changes to the design plan was sufficient evidence to prove that it acted in intentional disregard of the rights of the plaintiffs.
Liberty disputed coverage arguing that the jury’s finding of intentional misrepresentation with regard to the panel installation rendered the panel’s failure an intentional act, as opposed to an “occurrence” which is required under the policy to trigger coverage, and that if there was an occurrence, the “expected or intended" exclusion eliminated coverage. The appellate court disagreed and held that ACS did not expect or intend for the panel to fall.
Liberty, however, prevailed when it disputed the circuit’s holding that it was liable for the entire amount because Liberty breached its duty to defend ACS. The circuit court found Liberty breached its duty to defend when it did not move for bifurcation and instead submitted a proposed special verdict question that pertained to its coverage position. The appellate court disagreed and held Liberty followed the proper procedure to determine coverage, did not breach its duty to defend, and thus Liberty was responsible only for the $10 million limit as provided in the policy issued to ACS.
All parties are expected to seek review of the decision by the Wisconsin Supreme Court.
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