Nooyen v. Wisconsin Electric Power Co. (Construction Statute of Repose)

*This case is recommended for publication.

In Nooyen v. Wisconsin Electric Power Co. (2019AP289), the Court of Appeals District III dismissed safe place statute claims based on the plaintiff’s husband’s development of mesothelioma from asbestos. The court found the construction statute of repose barred the claims.

Norbert Nooyen was working on the construction of two nuclear power plants owned by the utility defendants Wisconsin Electric Power Co., Madison Gas & Electric Co., Wisconsin Power & Light Co., and Wisconsin Public Service Corp. In 2016, Nooyen was diagnosed with mesothelioma. Nooyen and his wife filed the instant lawsuit alleging that his mesothelioma was caused by asbestos at the plants and that the utilities violated the safe place statute (Wis. Stat. § 101.11(1)). The safe place statute states that owners have a duty to construct, repair and maintain buildings safely.

The court found that the construction statute of repose (Wis. Stat. § 893.89) barred the Nooyens’ safe place statute claim. Previous case law holds that the statute of repose bars after ten years claims resulting from “structural defects” inherent to the construction of a building, but allows claims resulting from “unsafe conditions” due to improper maintenance and repair to proceed. At issue here was whether Nooyen’s injury resulted from a structural defect or unsafe condition.

Since Nooyen worked and was exposed to asbestos during the original construction of the power plants, the court found his injury resulted from a structural defect. Therefore, because the Nooyens filed their claim more than ten years after the power plants were completed, the statute of repose barred the Nooyens’ claims.

The court also found that the maintenance exception to the statute of repose did not apply to the Nooyens’ claims because the exception applies only to owners’ failure to maintain the construction itself, not failure to maintain a safe workplace, as plaintiffs had argued.

The court also rejected Nooyen’s argument that because the legislature included a statute of repose exception for actions based on latent diseases in 2011 products liability reforms, the Legislature now has embraced policy “to preserve rights of latent disease victims to recover.” The court found that the legislature would have to adopt a specific latent disease exception for the construction statute of repose for that public policy to apply.

Finally, the court found that the construction statute of repose, enacted in 1994, did apply to Nooyen’s claims because he was not diagnosed until 2016. The court held that its decision did not violate Nooyen’s constitutional right to a legal remedy (Wis. Const. Art. I § 9) because the statute of repose extinguishes the right to remedy after the repose period.