In Mohn v. CBS Corp. (2017AP861), the Court of Appeals District I’s per curiam decision upheld the constitutionality of the property improvements statute of repose (Wis. Stat. § 893.89); thus Sprinkmann Sons Corp. was not liable for the plaintiff’s asbestos exposure.

Mary Ellen Mohn’s husband was exposed to asbestos while working at a construction project that ended in the late 1960s. Mohn was diagnosed with cancer in 2009, and Mary Ellen subsequently filed action against manufacturers and suppliers involved in the construction, including Sprinkmann, in 2012.

Wisconsin’s statute of repose for property improvements bars liability for persons involved in property improvements after ten years (reduced to seven years by 2017 Wis. Act 235). The statute of repose does not protect manufacturers of defective materials and property owners negligent in subsequent maintenance of improvements.

Mohn argued that Sprinkmann could be considered a manufacturer of defective material because it supplied defective, asbestos-containing insulation during the construction project. However, the appeals court rejected this argument, stating that Mohn’s argument would conflate manufacturers and other persons involved in property improvements, ultimately negating the protective purpose of the statute of repose. Sprinkmann furnished but did not manufacture the asbestos-containing insulation.

Mohn further argued that the statute of repose itself is unconstitutional as-applied to asbestos exposure claims because it violates rights to remedy and equal protection. The appeals court upheld the constitutionality of the law because the statute extinguishes the entire “right by which the litigant seeks a remedy.” Furthermore, the statute does not violate equal protection rights because the distinction of a class of asbestos claims that take longer to manifest serves a “legitimate governmental interest.”