CourtListener 1303928

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SNYDER, J.

¶ 1. Martin G. Wenke and Dakota M. Wenke, a minor, (collectively, Wenke) appeal from a summary judgment in favor of Gehl Company (Gehl). Wenke argues that the circuit court failed to distinguish between a statute of limitations and a statute of repose; specifically, Wenke argues that the circuit court miscon

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strued the significance of

Landis v. Physicians Insurance Co. of Wisconsin, Inc.,

2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, and was required to follow the holding of

Leverence v. United States Fidelity & Guaranty,

158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990). We disagree and conclude that

Landis

functionally overruled

Leverence.

We affirm the judgment of the circuit court.

FACTS

¶ 2. On September 12,1997, Martin Wenke's right arm was amputated while he was attempting to remove háy from the front of a Gehl Model RB1450 baler. At the time of the incident, Wenke was an Iowa resident. The baler was designed and manufactured by Gehl Company whose principal business operations are in West Bend, Wisconsin. The baler in question was first sold by Gehl to another Iowa resident on May 26, 1981.

¶ 3. Wenke commenced this action in Wisconsin on August 18, 1999. On January 31, 2000, Gehl moved for summary judgment on the grounds that Iowa's statute of repose prohibited Wenke's claim. Iowa's statute of repose provides that no product liability action may be commenced "more than fifteen years after the product was first purchased." Thus, the time period for filing a product liability action would have expired on May 26, 1996.

¶ 4. Gehl argued that

Leverence,

which held that Wisconsin's Borrowing Statute has no application to a foreign state's statute of repose, was erroneously decided.

See Leverence,

158 Wis. 2d at 92-93. Gehl's summary judgment motion was denied. Gehl unsuccessfully sought interlocutory review of this decision.

¶ 5. On June 8, 2001, Gehl filed a motion for reconsideration of this earlier summary judgment ruling, based upon the Wisconsin Supreme Court's deci

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sion in

Aicher v. Wisconsin Patients Compensation Fund,

2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, arguing that

Aicher

undercut the

Leverence

decision. This motion was denied.

¶ 6. On July 17, 2001, Gehl renewed its motion for reconsideration of the summary judgment decision, based upon the Wisconsin Supreme Court's recent decision in

Landis.

After a hearing on August 6, 2001, the circuit court acknowledged that

Landis

did not explicitly overrule

Leverence

but stated that it must follow the holding of

Landis

where it conflicted with

Leverence

and granted Gehl's motion for summary judgment, concluding that Iowa's fifteen-year statute of repose barred the action based upon Wisconsin's Borrowing Statute. Wenke appealed.

¶ 7. On June 12, 2002, we certified the following issue to the Wisconsin Supreme Court: Whether the holding of

Leverence,

distinguishing between statutes of limitations and statutes of repose, was functionally overruled by

Landis.

The Wisconsin Supreme Court accepted certification of this issue; however, on July 8, 2003, the supreme court issued a decision, with one justice not participating, indicating that the court was equally divided on whether to affirm or reverse the judgment. Based upon this tie vote, the supreme court vacated its acceptance of our certification and remanded the cause to us.

See State v. Richard Knutson, Inc.,

191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995).

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DISCUSSION

¶ 8. We first summarize the two cases at issue.

Leverence

was an insurance coverage case where 798 occupants of homes built by Tri-State Homes brought strict liability and negligence actions against Tri-State's insurers and an inspection service.

Leverence,

158 Wis. 2d at 71-72. The occupants alleged that their homes retained excessive moisture within their interior walls, which promoted mold, mildew, fungus, spores and other toxins that presented a continuing health risk and adversely affected the value of the homes.

Id.

at 72. Tri-State manufactured prefabricated homes during the 1970s and 1980s and marketed them in northern Wisconsin, Minnesota and Michigan.

Id.

Tri-State's insurers provided comprehensive general liability insurance coverage to Tri-State.

Id.

¶ 9. The

Leverence

trial court held that the insurers were entitled to summary judgment because TriState had failed to provide timely notice of an occurrence as required by the policies, that the inspection agency had no duty to the occupants independent of its contractual obligations to Tri-State and that the occupants failed to demonstrate any breach of those contractual obligations.

Id.

at 71. Despite the dispositive nature of these rulings, the trial court went on to rule on other policy defenses raised by the insurance companies; the said rulings were challenged on appeal by the homeowners and on cross-appeal by the insurers.

Id.

¶ 10. We reversed the trial court on the summary judgment issue, concluding that there were issues of material fact on the notice of occurrence issue.

Id.

However, we affirmed the judgment on the cross-appeal

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issues.

Id.

at 71-72. Specifically, the insurers had argued that Minnesota's statute of repose applied to the Minnesota plaintiffs by virtue of Wisconsin's Borrowing Statute, Wis. Stat. § 893.07 (2001-02).

Leverence,

158 Wis. 2d at 90. Minnesota's statute of repose provided that no action arising out of a defective condition of an improvement to real property may be brought more than ten years after substantial completion of construction.

Id.

at 90-91. Wisconsin's Borrowing Statute provided: "If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state."

Id.

at 91;

Wenke v. Gehl Co.

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