Friday, May 9, 2014

Stevens & Kuss To Wisconsin Supreme Court: Overrule Linden V. Cascade Stone Company

For the first time since December of 2006, I petitioned the Wisconsin Supreme Court to review a Court of Appeals' decision. Once again, it was a decision holding that my clients' claims are barred by the economic loss doctrine. Admittedly, I telegraphed my pitch to the Wisconsin Supreme Court in a post from January. As I said back then:

Unfortunately for homeowners, the Wisconsin Supreme Court held in Linden v. Cascade Stone Co., 2005 WI 113, that negligence claims against builders and their subcontractors are barred by the economic loss doctrine. Wisconsin law does nothing to deter slipshod and shoddy construction work by builders and their subcontractors, and it does nothing for homeowners (like the Liebls) who have been victimized by such carelessness. Deterring contractor negligence is an important public safety issue, as homeowners, renters, and their children are all endangered by sloppy construction practices. As discussed in the Milwaukee Journal/Sentinel article, the quality of residential construction has been declining for years, and construction professionals are seeing more and more mold cases as a result.

At some time in the future, the Wisconsin Supreme Court will be presented with another negligent construction case. When that day comes, our supreme court needs to consider the interests of all present and future homeowners and the public health, safety and welfare, instead of just considering the private interests of contractors and their insurance companies. The time has come for the Wisconsin Supreme Court to overrule Linden and bring back the negligent construction claim.

The time has come for someone to put their foot down, and that foot is me:

This court needs to overrule Linden and return the economic loss doctrine to its U.C.C. and product liability origins. See Wis. Stat. (Rule) § 809.62(1)(e). Before Linden, negligence claims against contractors and other service providers survived the economic loss doctrine - a common law doctrine that was intended to save the legislatively-enacted Uniform Commercial Code from common law products liability claims.  Since repair and construction contracts are not covered by the U.C.C., there was no reason to deprive victims of negligently-provided services their tort claims.  See Ins. Co. of N. Am. v. Cease Elec. Inc., 2004 WI 139, ¶ 35, 274 Wis. 2d 361, 683 N.W.2d 462. That all changed in Linden, in which this court held that the economic loss doctrine was available as a defense to certain homeowner tort claims against subcontractors. See Linden, 283 Wis. 2d 606, 699 N.W.2d 189, ¶ 32. This court’s Linden decision relied upon a Florida Supreme Court decision, which that court has recently overruled. See id., ¶ 28 (citing Casa Clara Condominium Ass’n, Inc. v. Charley Toppino & Sons, Inc., 620 So. 2d 1244 (Fla. 1993), overruled by Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Cos., Inc., 110 So. 3d 399, 407 (Fla. 2013)). This court should join the Florida Supreme Court in returning the economic loss doctrine to its principled roots in U.C.C. and products liability law.  The residential construction industry desperately needs the deterrence from negligent workmanship that only tort law can provide.  

While I also argue that the Court of Appeals' decision should be reversed because it is in conflict with Linden, I appear to be the first attorney in a long time to expressly ask the Wisconsin Supreme Court to overrule Linden. I fully understand that Linden has been the law for nine long years and that the Wisconsin Supreme Court only grants about 5% of all petitions for review, but nothing is going to change for Wisconsin homeowners unless someone challenges Wisconsin Supreme Court precedent every once in awhile.    

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