Catherine Sosnowski v. Auto-Owners Insurance Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 17, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2178 Cir. Ct. No. 2022CV346

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

CATHERINE SOSNOWSKI,

PLAINTIFF-APPELLANT,

WEA INSURANCE CORPORATION AND
ASPIRUS HEALTH PLAN, INC.,

INVOLUNTARY-PLAINTIFFS,

V.

AUTO-OWNERS INSURANCE COMPANY,
SPRING BROOK RESORT HOLDINGS, LLC,
SPRING BROOK RESORT, LLC,
EDWARD J. DOWLING, JR. REVOCABLE LIVING TRUST AND
WAUSAU GENERAL INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Portage County:
LAMONT K. JACOBSON, Judge. Reversed and cause remanded.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.
No. 2024AP2178

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. While staying at a vacation rental property owned
by the Edward J. Dowling, Jr. Revocable Living Trust (the Trust), Catherine
Sosnowski fell down the stairs to the basement when she walked through a door
that, when she opened it, swung over the basement stairs.1 The prior owners of the
property had removed the original basement door, which swung into the hallway
away from the basement stairs, in order to move some furniture into the basement,
and then installed a replacement door that swung out from the hallway over the
basement stairs (generally, the replacement door). Sosnowski sued the current
property owner and its insurer, and the rental management business entities and
their insurer, alleging negligence and safe place claims and seeking damages for
the injuries that she sustained when she fell. The circuit court granted summary
judgment in favor of all of the defendants and dismissed Sosnowski’s claims as
barred by the statute of repose set forth in WIS. STAT. § 893.89 (2023-24), which
applies to claims for injury resulting from an “improvement to real property.”2
The court also denied Sosnowski’s motion to strike a response by one of the
defendants to a request for admission regarding insurance coverage. Sosnowski
challenges both decisions on appeal.

¶2 We conclude that the defendants are not entitled to summary
judgment dismissing Sosnowski’s claims as barred by the statute of repose

1
Catherine Sosnowski, now known as Catherine Hansen, will be referred to as
Sosnowski, her name at the time of the filing of the complaint and as it appears in the caption.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

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because the undisputed facts establish that, as a matter of law, the replacement
door is not an improvement within the meaning of the statute. We also conclude
that the circuit court erroneously exercised its discretion when it denied the motion
to strike the response to the request for admission because the response did not
comply with statutory requirements. Accordingly, we reverse and remand.

BACKGROUND

¶3 The following material facts are undisputed for the purposes of
summary judgment.

¶4 This appeal involves injuries sustained at a vacation rental property
in Wisconsin Dells, Wisconsin (the property). The property was built between
2005 and 2006 by Spring Brook Construction, LLC.3 After the construction was
completed, in June 2006, Tina and Brad Reich, who owned the property from
2006 to 2019, hired Spring Brook Construction, LLC, to remove the door to the
basement and enlarge the opening, to allow the Reichs to move furniture into the
basement. Before the door was removed, it swung when opened into the hallway
and away from the basement stairs. After the Reichs finished moving the furniture

3
We clarify the identification of, and our references to, the three entities with the words
“Spring Brook” in their names that are relevant to this appeal.

Spring Brook Construction, LLC, is not a party to this action but built the property at
issue and inspected the property after the accident giving rise to this action.

Spring Brook Resort, LLC, is a defendant to this action and “operates the overnight rental
management company” through which Sosnowski reserved the property.

Spring Brook Resort Holdings, LLC, is also a defendant to this action and owns the land
on which the office of Spring Brook Resort, LLC, is located.

We will refer to each of these three entities individually by the entity’s full name.

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No. 2024AP2178

into the basement, sometime in June 2006, Brad Reich hired or requested an
unknown person to install a new, taller door in place of the door that had been
removed. The newly installed replacement door swung when opened out from the
hallway and over the basement stairs. In 2019, the Reichs sold the property to the
Trust. The replacement door was not removed or changed from the time the
Reichs had it installed until the date of Sosnowski’s accident.

¶5 In April 2021, Sosnowski rented the property through Spring Brook
Resort, LLC. At that time, the property was owned by the Trust, and the Trust had
entered into a Rental Management Agreement with Spring Brook Resort, LLC,
allowing Spring Brook Resort, LLC, to rent out the property.

¶6 Sosnowski and members of her family arrived at the property on
Friday, April 23, 2021. Sosnowski and her husband shared a bedroom that was on
the ground level of the property. On Saturday morning, Sosnowski attempted to
enter that bedroom by opening the door that she believed led to the bedroom. The
door that Sosnowski opened was the door that led to the basement and, when she
opened the door, it swung forward and away from her, and she stepped forward
and fell down several stairs. As a result of her fall, Sosnowski sustained a broken
femur.

¶7 After Sosnowski’s fall, Spring Brook Construction, LLC, at the
request of Spring Brook Resort, LLC, inspected the property and confirmed that
the door violated the Wisconsin building code because it swung out from the
hallway and over the basement stairs without a three-foot landing at the top of the
stairs. See WIS. ADMIN. CODE § SPS 321.04(4)(b)-(c) (requiring a three-foot
landing at the top of interior stairs when a door swings over the stairs).

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¶8 Sosnowski filed a complaint against the Trust and its insurer,
Wausau General Insurance Company (collectively, the Dowlings), as well as
Spring Brook Resort, LLC, and Spring Brook Resort Holdings, LLC, and their
insurer, Auto-Owners Insurance Company (collectively, Spring Brook).4

¶9 Sosnowski alleged that the Dowlings were causally negligent for:
causing the property to be marketed and rented to the public when the door created
an unsafe condition and violated the Wisconsin building code; failing to properly
inspect the property for building code violations; failing to warn renters of the
unsafe condition; failing to correct the door swing before renting the property to
Sosnowski; and otherwise failing to exercise reasonable care “in the maintenance,
operation, inspection and repair” of the property.5

¶10 Sosnowski alleged that Spring Brook was “causally negligent in
failing to properly manage, inspect, maintain, market and/or operate” the property
by: renting the property to Sosnowski with an unreasonably dangerous condition,
based on the lack of a landing and proper lighting; failing to warn renters of the
unsafe condition; and failing to request that Spring Brook Construction, LLC,
inspect the property for unsafe conditions and building and safety code violations.
Sosnowski also alleged that Spring Brook violated Wisconsin’s safe place statute,
WIS. STAT. § 101.11.

4
In her original complaint, Sosnowski named only Spring Brook Resort Holdings, LLC,
and Auto-Owners Insurance Company as defendants. Sosnowski identified additional defendants
through discovery and filed a total of four amended complaints. The operative complaint for
purposes of this appeal is the fourth amended complaint.
5
Sosnowski originally also alleged that the Dowlings violated the safe place statute,
WIS. STAT. § 101.11, but later voluntarily dismissed that claim.

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¶11 The Dowlings and Spring Brook each filed a motion for summary
judgment, arguing, as pertinent here, that Sosnowski’s negligence and safe place
claims are barred by the seven-year statute of repose set forth in WIS. STAT.
§ 893.89, because the replacement door was installed at least 14 years before
Sosnowski sustained her injuries.

¶12 Sosnowski opposed the motions for summary judgment, arguing that
her claims are not barred by the statute of repose for the following reasons. First,
the replacement door is not an “improvement to real property” within the scope of
the statute of repose. Second, and in the alternative, Sosnowski’s claims fall
within the exception to the statute of repose for damages resulting from
“negligence in the maintenance, operation or inspection of an improvement to real
property.” See WIS. STAT. § 893.89(4)(c). Third, and in the alternative with
respect to Spring Brook only, Spring Brook is not within the class of persons
protected by the statute of repose because Spring Brook is not an “occupier” of the
property. See § 893.89(2). Sosnowski also filed a motion to strike Spring Brook’s
response to Sosnowski’s request for admission regarding Auto-Owners Insurance
Company’s coverage for the allegations in the complaint, which admitted that:
“Auto-Owners Insurance may provide liability insurance to Spring Brook, LLC
[sic] as set forth in any insurance policy issued by Auto-Owners Insurance
Company, subject to the terms, exclusions, provisions, and other wording of the
insurance policy.”6

6
Sosnowski also filed a motion for sanctions against Spring Brook for asserting a
frivolous affirmative defense, which the circuit court denied. Sosnowski does not on appeal
challenge the court’s denial of the motion, and we discuss it no further.

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¶13 After a hearing, the circuit court issued an order granting the
Dowlings’ and Spring Brook’s motions for summary judgment and dismissing
Sosnowski’s claims against those defendants with prejudice. The court concluded
that all of Sosnowski’s claims against the Dowlings and Spring Brook are barred
by the statute of repose. The court also denied Sosnowski’s motion to strike.

¶14 Sosnowski appeals.

DISCUSSION

¶15 Sosnowski argues that the Dowlings and Spring Brook are not
entitled to summary judgment dismissing her negligence and safe place claims as
barred by the statute of repose. She also argues that the circuit court erred in
denying her motion to strike Spring Brook’s response to her request for admission.
We address each issue in turn.7

I. Summary Judgment Based on Statute of Repose

¶16 The primary issue on appeal is whether the Dowlings and Spring
Brook are entitled to summary judgment dismissing Sosnowski’s negligence and
safe place claims because the claims are barred by the statute of repose set forth in
WIS. STAT. § 893.89.

7
In its appellate briefing, Spring Brook sometimes cites to the appendices that were
submitted with its and Sosnowski’s briefs without including parallel citations to the appellate
record that was compiled by the clerk of the circuit court. At other times, Spring Brook cites only
to “Management Agreement,” or fails to cite to anything in the record. We remind counsel that
the appendix is not the record, see United Rentals, Inc. v. City of Madison, 2007 WI App 131, ¶1
n.2, 302 Wis. 2d 245, 733 N.W.2d 322, and that the rules of appellate procedure require parties to
include appropriate citations to the record, see WIS. STAT. RULE 809.19(1)(d)-(e).

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No. 2024AP2178

¶17 This court reviews a grant of summary judgment de novo. Bank of
New York Mellon v. Klomsten, 2018 WI App 25, ¶31, 381 Wis. 2d 218, 911
N.W.2d 364. Pursuant to WIS. STAT. § 802.08(2), summary judgment shall be
granted “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter
of law.”

¶18 “[WISCONSIN STAT. §] 893.89 is a statute of repose that sets forth the
time period during which an action for injury resulting from improvements to real
property must be brought.” Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶13,
283 Wis. 2d 1, 698 N.W.2d 794. Pertinent here, the statute of repose provides:

[N]o cause of action may accrue and no action may be
commenced … against the owner or occupier of the
property or against any person involved in the improvement
to real property after the end of the exposure period, to
recover damages for any … injury to the person … arising
out of any deficiency or defect in the design, land
surveying, planning, supervision or observation of
construction of, the construction of, or the furnishing of
materials for, the improvement to real property.

§ 893.89(2). The exposure period is defined as the seven years “immediately
following the date of substantial completion of the improvement to real property.”
§ 893.89(1). If the injury to the person arises out of something other than an
improvement to real property, the statute of repose does not apply. Cf. Kohn, 283
Wis. 2d 1, ¶14 (explaining that the statute of repose applied to bar the plaintiffs’
claims only if the item causing injury was an improvement to real property).

¶19 “Whether an item is an ‘improvement to real property’ under [WIS.
STAT.] § 893.89 is a question of law that we review de novo.” Kohn, 283 Wis. 2d
1, ¶12. As we explain, we conclude that Sosnowski’s claims are not barred by the

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statute of repose because the undisputed facts establish that, as a matter of law, the
item causing injury here, the replacement door, is not an improvement to real
property within the meaning of the statute.

¶20 An “improvement to real property” is defined in the relevant case
law as “‘a permanent addition to or betterment of real property that enhances its
capital value and that involves the expenditure of labor or money and is designed
to make the property more useful or valuable as distinguished from ordinary
repairs.’” Id., ¶17 (quoted source omitted).

¶21 The record establishes as undisputed that the replacement door was
installed to fill the opening that was left after the original door was removed, and
to restore the means of access from the hallway to the basement that the original
door provided before it was removed. In other words, the prior owners fixed the
removal of the original door by installing a replacement door, without changing
the use of that door as providing access from the hallway to the basement stairs.
Based on this undisputed fact, the replacement door is more akin to an “ordinary
repair” that perpetuated the utility of the hallway’s access to the basement, as
opposed to “an improvement” that enhanced the utility of the hallway’s access to
the basement. See id. (stating that an improvement “‘is designed to make the
property more useful or valuable as distinguished from ordinary repairs’” (quoted
source omitted)).

¶22 Spring Brook and the Dowlings argue that the replacement door is
an improvement that made the property more useful by allowing “larger items [of
furniture] to be more easily moved into the basement.” However, the evidence
shows that the furniture was moved through the opening left after the original door
was removed, before the prior owners installed the replacement door; accordingly,

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No. 2024AP2178

the replacement door itself was not designed to make the property more useful by
facilitating the movement of furniture. To the contrary, the evidence establishes as
undisputed that the replacement door was installed to repair the opening that had
been created by the prior owners after they moved the furniture into the basement,
in order to restore the hallway to its original state and the opening to its original
use once the furniture had been moved in, that is, with a door at the top of the
stairs to the basement.

¶23 The Dowlings point to the prior owner’s testimony that she
“thought” it might be useful that the replacement door, by opening over the
basement stairs, did not block the hallway when opened. However, this testimony
is insufficient as a matter of law to show that the replacement door was “‘designed
to make the property more useful or valuable as distinguished from ordinary
repairs.’” See id. (quoted source omitted).

¶24 The Dowlings also argue that reinstallation of a door “is not a
normal repair of any property” because “[t]o do so requires a person with some
construction experience, which is not a typical homeowner.” However, the
Dowlings cite no legal authority for the proposition that repairs performed by a
professional are improvements solely by virtue of being performed by a
professional. Indeed, it would be absurd to say that the repair of a burst pipe is an
improvement rather than a repair because it is done by a plumber.

¶25 In sum on this issue, the undisputed evidence establishes that, as a
matter of law, the replacement door is not an improvement to real property
because it was not designed to make the property more useful or valuable as
distinguished from ordinary repairs. See id. (defining improvement to real
property). Accordingly, neither the Dowlings nor Spring Brook are entitled to

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No. 2024AP2178

summary judgment dismissing Sosnowski’s claims based on the statute of repose
set forth in WIS. STAT. § 893.89.8

II. Motion to Strike

¶26 Sosnowski also argues that the circuit court erred when it denied her
motion under WIS. STAT. § 804.11(1)(c) to strike Spring Brook’s response to a
request for admission. Specifically, Sosnowski asserted that the response was
insufficient and asked that the court order that the matter be deemed admitted or
order Spring Brook to amend the response.

¶27 Neither Sosnowski nor Spring Brook direct us to legal authority
setting forth the standard of review. Based on the statutory language, we conclude
that we review the court’s denial of a motion under WIS. STAT. § 804.11(1)(c) for
an erroneous exercise of discretion. See § 804.11(1)(c) (explaining that the court
“determines [whether] an answer [does or] does not comply with this section” and
that “it may order either that the matter is admitted or that an amended answer be
served,” among other things); Smiljanic v. Niedermeyer, 2007 WI App 182, ¶12,
304 Wis. 2d 197, 737 N.W.2d 436 (use of the word “may” in a statute connotes an

8
Our conclusion that the replacement door is not an improvement to real property
because it is an ordinary repair is dispositive of the issue of the application of the statute of
repose. Accordingly, we do not address Sosnowski’s additional arguments that: the replacement
door is not an improvement because it is not a “permanent addition to or betterment of real
property that enhances its capital value,” see Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶17,
283 Wis. 2d 1, 698 N.W.2d 794; her claims arise out of negligence in the inspection of the
replacement door and, therefore, come within an exception to the statute of repose, see WIS.
STAT. § 893.89(4)(c) (the statute of repose does not apply to “[a]n owner or occupier of real
property for damages resulting from negligence in the maintenance, operation or inspection of an
improvement to real property”); and Spring Brook is not protected by the statute of repose
because it is not an occupier of the property, see § 893.89(2) (the statute applies to claims
“against the owner or occupier of the property”).

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No. 2024AP2178

exercise of discretion). A court properly exercises its discretion “if it examined
the relevant facts, applied a proper standard of law, and reached a reasonable
conclusion.” Teubel v. Prime Dev., Inc., 2002 WI App 26, ¶15, 249 Wis. 2d 743,
641 N.W.2d 461.

¶28 WISCONSIN STAT. § 804.11 provides that “a party may serve upon
any other party a written request for the admission … of the truth of any matters
within the scope of [WIS. STAT. §] 804.01(2) set forth in the request that relate to
statements or opinions of fact or of the application of law to fact.” § 804.11(1)(a);
see also § 804.01(2) (setting scope of discovery as “regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs
of the case,” with certain exceptions not relevant here). A matter is deemed
admitted unless the party to whom the request is directed answers or objects to the
request. § 804.11(1)(b). Answers to requests for admission

shall specifically deny the matter or set forth in detail the
reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of
the requested admission, and when good faith requires that
a party qualify an answer or deny only a part of the matter
of which an admission is requested, the party shall specify
so much of it as is true and qualify or deny the remainder.
An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny unless
the party states that he or she had made reasonable inquiry
and that the information known or readily obtainable by the
party is insufficient to enable the party to admit or deny. A
party who considers that a matter of which an admission
has been requested presents a genuine issue for trial may
not, on that ground alone, object to the request; the party
may … deny the matter or set forth reasons why the party
cannot admit or deny it.

§ 804.11(1)(b).

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¶29 “The party who has requested the admissions may move to
determine the sufficiency of the answers or objections…. If the court determines
that an answer does not comply with this section, it may order either that the
matter is admitted or that an amended answer be served.” WIS. STAT.
§ 804.11(1)(c).

Additional Background

¶30 Sosnowski served Spring Brook with the following request for
admission pursuant to WIS. STAT. § 804.11: “Admit that Auto-Owners Insurance
Company provides liability insurance to Spring Brook Resort, LLC for the
allegations against Spring Brook Resort, LLC set forth in Plaintiff’s Fourth
Amended Complaint.” Spring Brook responded:

Admit that Auto-Owners Insurance may provide liability
insurance to Spring Brook, LLC [sic] as set forth in any
insurance policy issued by Auto-Owners Insurance
Company, subject to the terms, exclusions, provisions, and
other wording of the insurance policy. Object to the
remainder of this request as calling for a legal opinion and
as being vague and overly broad. Defendant denies any
legal advice or legal opinions as are called for in the
request. These Defendants admit any judicial interpretation
finding consistent with the terms and wording of any
insurance policy issued by Auto-Owners.

¶31 Sosnowski filed a motion to strike Spring Brook’s response, arguing
that the response violated WIS. STAT. § 804.11(1)(b) because it “[was] an evasive
word salad and not a specific denial or admission as required” and “[did] not
remotely meet the requirement of § 804.11(1)(b) that the response fairly meet the
substance of the requested admission.”

¶32 After hearing argument on the motion to strike, the circuit court
stated that it was “satisfied the answer is adequate,” and denied the motion.

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No. 2024AP2178

Analysis

¶33 The record shows that the circuit court erroneously exercised its
discretion when it determined that Spring Brook’s response complied with WIS.
STAT. § 804.11(1)(b). Spring Brook’s response did not actually admit anything,
except that there “may” be “liability insurance” under “any insurance policy” it
issued. Spring Brook’s response also did not specifically deny anything, except
for “any” legal opinions sought in the request. Taken as a whole, the response
failed to “set forth in detail” why Spring Brook could not “truthfully admit or
deny” any aspect of “the matter,” and did not “fairly meet the substance of the
requested admission.” See § 804.11(1)(b). For example, Spring Brook did not
admit that Auto Owners Insurance Company had issued a policy to Spring Brook
Resort, LLC, which was in effect at the time of Sosnowski’s accident, nor did
Spring Brook identify that policy. Instead, the response referred to “any insurance
policy” that “may provide liability insurance … subject” to all the “wording” in
the policy.

¶34 Spring Brook counters that it “responded by asserting the actual
terms and provisions of the policy in question,” and by asserting that “there is
insurance coverage, but subject to the terms and conditions of the policy.”
Without providing an opinion as to whether such assertions would comply with
the statute, we simply observe that Spring Brook’s characterization of its response
is belied by the text of the response quoted above. The response as quoted did not
“specify so much of [the matter] as is true and qualify or deny the remainder.” See
WIS. STAT. § 804.11(1)(b). Accordingly, we remand to the circuit court to take
action consistent with § 804.11(1)(c).

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No. 2024AP2178

CONCLUSION

¶35 For the reasons stated, we conclude that the Dowlings and Spring
Brook are not entitled to summary judgment dismissing Sosnowski’s claims as
barred by the statute of repose because the undisputed facts establish that, as a
matter of law, the replacement door is not an improvement within the meaning of
the statute. We also conclude that the circuit court erred when it denied
Sosnowski’s motion to strike Spring Brook’s response to a request for admission
because the response did not comply with statutory requirements. Accordingly,
we reverse and remand.

By the Court.—Order reversed and cause remanded.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

15