Exceptions to statute of repose. Miron v. MNI, Inc. Court of Appeals of Wisconsin (2016), by Hugh Anderson

Summary: Alan Miron was a laborer for a company hired by Target to demolish a store in Milwaukee. During demolition in 2011, a fixture wall fell on and injured Miron. An investigation showed that a wall cleat intended to hold the fixture wall in place had been screwed into drywall, rather than into the wood frame backing behind the drywall. Miron brought a lawsuit against MNI, the contractor that had built the fixture wall in 2000.

Wisconsin has a statute of repose that bars construction-related claims made more than 10 years after substantial completion of the project. There are a few exceptions in the statute, including exceptions for misrepresentation, concealment, or fraud with respect to a deficiency or defect. The plaintiff, Miron, acknowledged that more than 10 years had passed, and therefore attempted to avoid summary judgment by contending that one of the exceptions applied.

Miron argued that: MNI had promised in a proposal to perform the work in a workmanlike manner—but had failed to do so; had submitted payment applications that falsely purported that the work had been performed satisfactorily; and should have known of the substandard installation of the cleat and therefore must have concealed it. The trial court rejected all these arguments and issued summary judgment based on the statute of repose.

Decision: The Wisconsin Court of Appeals affirmed the trial court decision. In part, it concluded that although there was evidence of the condition of the cleat (not attached to wood) in 2011, there was no evidence of its condition in 2000, and no evidence of any concealment. The court also held that a promise to perform cannot be categorized as a misrepresentation: the concept of misrepresentation is based on existing facts, not future actions. Finally, of most interest, the court held that if submitting payment applications, or for that matter breaching the implied covenant to perform the work in a satisfactory manner, could be construed as “misrepresentations,” then contractors would never be able to enjoy the protections of the statute of repose. The arguments put forward by the plaintiff would “eviscerate the intent of the statute of repose and lead to absurd results.”

Comment: By their very nature, statutes of repose protect wrongdoers as well as the innocent. One important basis for the statute of repose is the idea that it is usually impossible to have a fair adjudication of an issue many long years after the project was completed. Another purpose is to reduce uncertainty and exposure, for the sake of the orderly conduct of business planning and transactions. This might result in some unfairness in individual cases, but serves a more general beneficial public purpose.

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