‘Public’ can mean 1 person, state Supreme Court rules

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The term “the public” can refer to a single person, a majority of the justices on the Wisconsin Supreme Court ruled last week.

Chief Justice Pat Roggensack and justices Ann Walsh Bradley, Annette Ziegler, Rebecca Bradley and Rebecca Dallet released their majority opinion in Hinrichs and Autovation Limited v. The Dow Chemical Company, a case out of Waukesha County, on Thursday. Justices Dan Kelly and Brian Hagedorn did not participate.

Chris Hinrichs manufactures and installs JeeTops, a type of aftermarket acrylic skylight made for certain types of Jeep Wranglers. The company uses an adhesive made by Dow Chemical Company to install the skylights and ensure they’re watertight.

Hinrichs said the JeeTops started cracking shortly after a Dow agent told him the company was testing a new primer on the skylights. By 2014, Hinrichs said about one-third of his panels using the Dow adhesive had failed. Many dealers and high-profile customers dropped the JeeTops in response to the resulting publicity, and Hinrichs said he’s now not able to sell them, even though he has found a new adhesive.

Hinrichs sued, alleging three counts of misrepresentation and a violation of Wis. Stat. § 100.18(1).4, which concerns fraudulent representation. A circuit court granted Dow’s motion to dismiss the case. Hinrichs appealed, and the appellate court concluded neither of the standard exceptions to the economic-loss doctrine applied. At the same time, the appeals court ruled the circuit court had acted improperly when it dismissed the claim after finding Hinrichs, as an individual, did not fit the statutory definition of “the public.”

The high court discussed whether the economic-loss doctrine barred the misrepresentation claims, if the court of appeals had properly found that the statute claim should survive Dow’s motion to dismiss and if Hinrichs could claim he is is the public for purposes of the statute. The justices upheld the appellate court’s conclusions on all of the questions.

Dow had asked the state Supreme Court to overrule a previously established framework of analysis that decided oral representations made in private conversations counted as public, arguing it was inconsistent with the plain meaning of the term public. The justices denied the request.

“A single representation to a single person is enough to trigger § 100.18(1)’s protections,” Walsh Bradley wrote in the opinion.

Rebecca Bradley dissented with the majority’s interpretation of “the public.” In her opinion, she said the justices in the majority hadn’t applied the plain meaning.

“… the majority’s interpretation of ‘the public’ empties the phrase of any meaning,” Bradley wrote.

She said she would have reversed the appellate court’s decision on the issue, but concurred with the decision to dismiss the misrepresentation claims. Follow @WLJReporter