Please ensure Javascript is enabled for purposes of website accessibility

Torts — intentional misrepresentation

By: WISCONSIN LAW JOURNAL STAFF//May 3, 2012//

Torts — intentional misrepresentation

By: WISCONSIN LAW JOURNAL STAFF//May 3, 2012//

Listen to this article

This action arises out of the construction of a new milking parlor on the farm of Dan and Pam Schullo. The Schullos contend that the rails on the stalls for the cows were improperly installed. The Schullos filed this action against the distributor and manufacturer of the milking equipment, DeLaval, Inc.; the dealer and installer, Spring Valley Enterprises; and Spring Valley’s insurer, Addison Insurance Company. On summary judgment the circuit court dismissed all claims against DeLaval except one intentional misrepresentation claim based on a specific statement attributed to a DeLaval employee. Spring Valley was dismissed by stipulation because of bankruptcy, and the court subsequently dismissed all claims against Addison on summary judgment.

On the Schullos’ appeal of the dismissal of all claims against DeLaval, we conclude: (1) the circuit court properly dismissed all but one of the misrepresentation claims because the others were based on statements that were “mere puffery”; (2) the court properly dismissed the claim of breach of the purchase agreement because DeLaval is not a party to that agreement; (3) there are issues of fact that preclude summary judgment on the claim of breach of the written warranty, and there is no separate claim for breach of an oral warranty; and (4) the court properly dismissed the negligence claim for the reasons we explain in the opinion.

On the Schullos’ appeal of the dismissal of all claims against Addison except the intentional misrepresentation claim, we conclude the circuit court erred in deciding that Addison’s commercial general liability (CGL) insurance policy did not provide coverage for the Schullos’ claims of breach of purchase agreement and strict liability misrepresentation. Therefore, the court erred in dismissing these claims on this ground. We also conclude the court erred in dismissing the negligence claim. Contrary to the circuit court’s ruling, we conclude that the complaint does state a claim for relief based on negligence against Addison and that summary judgment based on the application of the economic loss doctrine is not appropriate.

Accordingly we affirm the dismissal of all the claims against DeLaval that the circuit court dismissed, except that we reverse dismissal of the breach of written warranty claim; and we reverse the dismissal of all claims against Addison except the dismissal of the intentional misrepresentation claim, which we affirm. We remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2011AP1876 Schullo, et al. v. DeLaval Inc., et al.

Dist III, Barron County, Babbitt, J., Vergeront, J.

Attorneys: For Appellant: Guelzow, Thomas K., Eau Claire; For Respondent: Pytlik, Paul J., Waukesha; Newmark, Eric L., Minneapolis; Tipping, William J., Minneapolis

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests