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Midland Builders7/14/2005
each category of damages sought under those claims. In analyzing Wausau Tile's costs in repairing and replacing the pavers, the court noted that it was undisputed that the pavers were "integrated systems comprised of several component materials." Id. at 251. The cement, in turn, was an "integral component" of the pavers, and the court thus rejected Wausau Tile's contention that the pavers constituted "other property." Id. at 251-52. Accordingly, the court also concluded:
he crux of Wausau Tile's claim for repair and replacement costs is that the pavers were damaged because one or more of their ingredients was of insufficient quality and did not work for Wausau Tile's intended purpose. This is the essence of a claim for economic loss.
Id. at 252-53.
Likewise, the crux of Midland's claim for repair costs here is that the homes were damaged because an ingredient, Semco windows, was of insufficient quality and did not work for Midland's intended purpose. Accordingly, these costs are the "essence of a claim for economic loss," and Wausau Tile precludes Midland from seeking to recover such losses through its negligence and strict-responsibility-misrepresentation claims.
The court in Wausau Tile next addressed Wausau Tile's damages relating to third parties' claims for damage to property adjoining the pavers and for personal injury . Id. at 253. Wausau Tile conceded, much as Midland does here, that this item of damages was an "attempt to recoup the commercial costs of settling the claims of third parties which resulted from the product defect." Id. As to these damages, the court said: " ven if Wausau Tile's claims were sufficient to allege personal injury and/or property damage, it would not be permitted to litigate those claims because it would not be a real party in interest ...." Id.
As the court in Wausau Tile explained, a real party in interest is "'one who has a right to control and receive the fruits of the litigation.'" Id. at 253 (quoting Mortgage Assocs. v. Monona Shores, Inc., 47 Wis. 2d 171, 179, 177 N.W.2d 340 (1970)).
The basic test is whether the plaintiff's suit will prevent the defendant from being harassed by other claimants for the same demand, whether it will preclude the defendant from asserting any fair defense, offset, or counterclaim, and whether the defendant will be fully protected when the judgment in behalf of the plaintiff is discharged.
Wausau Tile, 226 Wis. 2d at 254. Applying this test, the court in Wausau Tile said:
Wausau Tile would not be a real party in interest in regard to any claims of personal injury or property damage. All property allegedly damaged is owned by third parties not joined in this suit. Similarly, third parties, not Wausau Tile, sustained any personal injury which may have occurred. Wausau Tile is arguably one of the parties responsible for harm caused by the defective pavers. As such, it is clear that Wausau Tile has no right to control the litigation or receive the fruits of any claims of harm to person or property. Further, because injured third parties may bring their own claims against Medusa, recovery for personal injury or property damage by Wausau Tile would not save Medusa from further harassment for the same harm.
Id. at 254-55 (footnote omitted). The Wausau Tile court noted that Wausau Tile "voluntarily incurred the costs it did when it chose to take on the responsibility of remediating the damage to the pavers and other property of third parties" and "could have declined to repair the pavers or pay for the property damage and left the affected third parties to their remedies." Id. at 255 n.13.
Again, we see no meanin
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