Contracts — third-party beneficiaries

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Wisconsin Court of Appeals

Civil

Contracts — third-party beneficiaries

Kenneth P. and Maureen Manning (“the Mannings”) appeal from a judgment dismissing their complaint against Super Excavators, Inc.

(“SuperEx”). The Mannings contend that we should reverse the circuit court’s decision on summary judgment and remand this case for a trial because: (1) in dismissing the Mannings’ negligence claim against SuperEx, the circuit court relied on Showers Appraisals, LLC v. Musson Bros., 2012 WI App 80, 343 Wis. 2d 623, 819 N.W.2d 316 (“Shower-Ct. App.”), which has since been reversed by Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226 (“Showers-S. Ct.”); and (2) in dismissing the Mannings’ breach of contract claim against SuperEx, the circuit court improperly concluded that the Mannings lacked standing to bring the claim because SuperEx’s contracts with the Village of Whitefish Bay (“the Village”) did not consider the Mannings to be third-party beneficiaries. Because we agree with the Mannings that Showers-S. Ct. prohibits SuperEx from claiming governmental immunity from the Mannings’ negligence claim, and because we conclude that SuperEx’s contract with the Village is ambiguous as to whether the Mannings are third-party beneficiaries, we reverse and remand for further proceedings consistent with this decision. Not recommended for publication in the official reports.

2013AP1029 Manning v. Vinton Construction Co. et al.

Dist I, Milwaukee County, Conen, J., Brennan, J.

Attorneys: For Appellant: Linn, Paul F., Milwaukee; Wisnefski, Ted A., Milwaukee; Witkov, Adam E., Milwaukee; Watters, Zachary John, Milwaukee; For Respondent: Farley, David J., Milwaukee; Bascom, Timothy A., Milwaukee; Sosnay, Jacob, Wauwatosa; Schmeckpeper, Jeffrey A., Milwaukee; Mentkowski, Timothy, Hartford