01-3501 Rich Products Corp. v. Zurich American Insurance Co.

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“The Wisconsin statutes cited by plaintiff do not favor the result plaintiff urges in a direct action against Zurich. The relevant portion of WIS. STAT. sec. 803.04(2)(a) provides, ‘(2) Negligence actions: insurers. (a) In any action for damages caused by negligence, any insurer . . . is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured.’

“This statute, as it is captioned, is a negligence section applicable to insurers which permits insurers to be joined in a case where a claim is alleged against the insured, but the section unambiguously is limited to damage claims caused by negligence. Implied warranty claims, as this case involves, do not constitute a negligence action for damages. In Wisconsin, warranty claims and negligence claims are not to be intertwined as RPC urges. See Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 437 N.W.2d 213, 215-18 (Wis. 1989) (discussing breach of warranty, negligence, and the economic loss doctrine). Our case, United States v. Ettrick Wood Products, Inc., 916 F.2d 1211 (7th Cir. 1990), cited by RPC, is not apropos as it raised a Rule 54(b) issue. Our task is to follow the Wisconsin statutes, not to try to judicially amend them. See DNR v. Wisconsin Power & Light Co., 321 N.W.2d 286, 288 (Wis. 1982).”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Harlington Wood, J.