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Courts not seeing flurry of lawsuits after statute-of-repose change

By: Erika Strebel, [email protected]//January 25, 2019//

Courts not seeing flurry of lawsuits after statute-of-repose change

By: Erika Strebel, [email protected]//January 25, 2019//

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A memorial stands on Nov.11, 2010, near where a slab of concrete fell from the O’Donnell Park parking structure and killed Jared Kellner earlier that same year. (File photo by Kevin Harnack)
A memorial stands on Nov.11, 2010, near where a slab of concrete fell from the O’Donnell Park parking structure and killed Jared Kellner earlier that same year. (File photo by Kevin Harnack)

After the Wisconsin Senate last spring passed legislation that would give contractors further protection from certain lawsuits, the state’s plaintiffs’ attorney bar advised members in March to file lawsuits before the new law took effect that summer.

However, in the months after Gov. Scott Walker signed the bill, defense lawyers and plaintiffs lawyers have neither observed a rush to the courthouse nor seen a recent example of defense lawyers wielding the newly enacted law.

Buried in Wisconsin Act 235, which contained a slew of changes to the state’s civil litigation rules, was a change to the state’s construction statute of repose.

Before Act 235, that particular statute had prevented injured plaintiffs from suing builders, contractors and others over negligent design for an injury that occurred more than 10 years after a project was substantially completed. The statute, which was first enacted in 1973, is one that few people outside construction and legal circles are aware of.

Act 235, which Walker signed into law in April, shrunk the statute’s 10-year window to seven years. It took effect on July 1.

Some personal-injury lawyers who were opposed to the change said the shorter repose period would encourage contractors to cut corners and prevent injured parties from being able to obtain compensation for their injuries.

Various defense attorneys, in contrast, said the three-year difference wasn’t significant. Meanwhile, the Wisconsin Builders Association, which represents homebuilders throughout the state and was a big supporter of the change, testified that reducing the window for filing lawsuits would give builders, who are often defendants in legal cases, certainty and control over their exposure to liability and would reduce the cost of investigating allegations.

Officials at the Wisconsin Association of Justice have yet to hear from their members about encounters with the new seven-year limit.

As for defense counsel, the Milwaukee attorney Travis Rhoades said the new statute hasn’t come up in the work that he and his colleagues at Crivello Carlson are doing.

The former statute remains a powerful means of quashing lawsuits. In rare cases, however, plaintiffs’ attorneys have successfully argued against it.

One such case involved a lawsuit filed over the death in 2010 of a 15-year-old boy who was killed when a 13 ½-ton concrete façade panel fell off the O’Donnell Park parking garage in downtown Milwaukee. Two other people were injured in the same accident.

Because the work at the parking garage had been substantially completed 20 years before the panel had fallen, many believed any recovery would be barred by the statute of repose. Even so, the plaintiffs’ attorney was able to argue successfully that there is a legal exception to the 10-year rule, one applying to cases in which it can be shown that a defect was deliberately concealed.

Rhoades says he has seen the old statute pop up more recently in torts lawsuits that allege exposure during construction to materials such as asbestos.

“We have successfully, at the trial court level, used the statue of repose to get some of those claims dismissed,” Rhoades said.

For example, in December, Rhoades won summary judgment in a Brown County lawsuit involving a worker who was exposed to asbestos while working on the construction of two nuclear-power plants in Wisconsin.

He says the plaintiffs have said they would file an appeal. But no matter what they achieve at the appellate level, they are unlikely to overturn the statute of repose.

“Given the Wisconsin Supreme Court’s treatment of the last statute, I don’t believe anyone is really going to challenge and try to undo it,” he said. “But who knows? We’ve got a Democratic administration. … We could be looking at whole new statutory scheme.”

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