01-0231 VanCleve v. City of Marinette (56334)

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“The statute states that if the damages are caused by the wrong of the City ‘and of any person, or private corporation, such person or private corporation shall be primarily liable therefor.’ Wis. Stat. § 81.17. Therefore, a person who has any liability is liable for the entire judgment.”

And, even though the city did not object to the contractor’s so-called “Pierringer” release, the city did not thereby waive its affirmative defense under Wis. Stat. sec. 18.17 because the city could not have kept the contractor in the lawsuit by objecting to the release because plaintiff and the contractor were direct adversaries.

“VanCleve cites no authority to support her argument that a non-settling tortfeasor, claiming secondary liability as an affirmative defense, is required to object to a Pierringer release. The result of this would be to effectively prohibit a Pierringer release by barring VanCleve from settling her claim against Keller.

The Pierringer release, voluntarily agreed to by VanCleve and Keller, required that Keller be dismissed from the lawsuit. The City had no way of keeping Keller in the lawsuit and the Pierringer release effectively dismissed the City’s cross-claim against Keller.”

Accordingly, we hold that the city is not responsible for paying any of the award.

Judgment reversed.

Recommended for publication in the official reports.

Dist III, Marinette County, Duker, J., Peterson, J.

Attorneys:

For Appellant: James O. Moermond, Wausau

For Respondent: Jonny L. Waara, Iron River, MI