2010AP87 Cianciola, LLP, v. MMSD

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Torts
Builders’ statute of repose

Where there is a contractual relationship between the parties, the builders’ statute of repose does not apply.
“Here, the language of the easement establishes a contractual relationship between Cianciola and MMSD. The easement expressly states that MMSD ‘covenants and agrees … that it will construct and maintain said intercepting sewer in good order and condition’ and will ‘indemnify and save harmless [Cianciola] … from all loss or injury to its property and persons due to such construction, operation, maintenance, repair and reconstruction.’ Our supreme court in Hocking concluded that while the meaning of the term ‘warranty’ varies by context, a warranty is generally defined as ‘“an assurance by one party to a contract of the existence of a fact upon which the other party may rely.”’ Id., ¶28 (citation omitted). The court further held that In the context of § 893.89(4)(b), the express warranty or guarantee is clearly referring to an assurance of quality by the one designing or constructing the improvement, likely for a defined period of time. Hence, the statute allows an express warranty or guarantee to outlive the statute of repose ‘for the period of that warranty or guarantee.’ Such an express warranty or guarantee is not present here. Id., ¶33 (citation omitted). The easement agreement between Cianciola and MMSD constitutes a warranty as explained in Hocking. Therefore, Cianciola’s claims are not barred by Wis. Stat. § 893.89.”

Affirmed.

Recommended for publication in the official reports.

2010AP87 Cianciola, LLP, v. MMSD

Dist. I, Milwaukee County, Lamelas, Witkowiak, JJ., Kessler, J.

Attorneys: For Appellant: McCabe, Michael J., Milwaukee; Petersen, James H., Milwaukee; Lazarski, Katherine E., Milwaukee; For Respondent: Nistler, Brent D., Brookfield; Tuchalski, Michael Frank, Jr., Brookfield

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