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Midland Builders7/14/2005
gful difference between Midland's claim for damages for costs in settling claims or anticipated claims of homeowners and Wausau Tile's alleged damages for its costs in settling claims or anticipated claims of third parties. See id. at 253. The only difference is that some of the third parties in Wausau Tile may not have been customers of Wausau Tile, whereas all of the homeowners here were customers of Midland. This is a factual difference, but Midland does not provide any reason why this is a difference that matters.
Midland nonetheless argues that Wausau Tile is distinguishable. More specifically, Midland argues:
The Supreme Court [in Wausau Tile] did not directly address the application of the "integrated system" rule when the plaintiff purchases the product separately, incorporates it into another product and sells it. Instead, the Court concluded that the plaintiff's argument failed "in light of the fact we determine elsewhere in this opinion that Wausau Tile is not the real party in interest as to the tort claims it asserts." Wausau Tile, 226 Wis. 2d at 252 n.10. That distinction cannot be made here because the facts show that Midland is the real party in interest.
But Midland misreads Wausau Tile and quotes it out of context.
First, Midland is wrong that the court in Wausau Tile did not directly address the application of the integrated system rule when a plaintiff purchases a product separately, incorporates it into another product, and sells it. Wausau Tile addressed the application of the integrated system rule to the following facts. The plaintiff (Wausau Tile) purchased a product separately (cement), incorporated the cement into another product (pavers), and sold the pavers. See id. at 241-42, 251-52. Both Midland and Wausau Tile obtained component products (windows and cement) from manufacturers (Semco and Medusa), integrated those component products into final products (houses and pavers), and sold them.
Second, the language that Midland quotes from Wausau Tile, found in a footnote toward the end of the court's discussion of damages for repair and replacement of pavers, refers to the court's discussion of damages for third-party personal injury or property damage claims. The language must be read in that context. The court, in referencing its later discussion, was elaborating on its rejection of Wausau Tile's argument that the pavers themselves (analogous to the homes here) constituted "other property" for purposes of the economic loss doctrine:
Wausau Tile argues that the ... "integrated system" rule ... may only be applied when a purchaser buys an entire integrated system which later turns out to have a defective component. Wausau Tile contends that the rule does not apply in this case because Wausau Tile bought only the component (the cement), not the integrated system (the pavers).
In a similar vein, Wausau Tile argues that it is in the position of the "initial user" in Saratoga Fishing [a United States Supreme Court case discussing the "initial user" as the one who first purchases an integrated system]....
Both of these arguments fail in light of the fact we determine elsewhere in this opinion that Wausau Tile is not the real party in interest as to the tort claims it asserts.... The complete packages purchased by the "initial users" in this case were the pavers manufactured by Wausau Tile, which contained cement as one of their components. If the proper parties were to bring the tort claims Wausau Tile is attempting to assert, the damage to the pavers would be damage to the "product itself" even under Wausau Tile's formulation of the [integrated system] rule.
Id. at 252 n.
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