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Midland Builders7/14/2005
10 (citations omitted).
While the Wausau Tile footnote is not a model of clarity, when read with the rest of the court's opinion it is apparent that the court was recognizing two concepts, neither of which help Midland: (1) a final product that is an integrated system does not necessarily gain "other property" status for purposes of the economic loss doctrine simply because the product is sold to someone else, and (2) to the extent an integrated system produced and sold by a manufacturer has become someone else's property, the manufacturer ordinarily will lack standing to initiate an action in tort against one of its component suppliers for damage to the system or to property other than the system, in part because the manufacturer no longer owns the damaged system.
Contrary to Midland's argument, the sum total of what the Wausau Tile court had to say about real parties in interest and the "other property" exception demonstrates that Midland is similarly situated to Wausau Tile. We realize that at least some of the third parties in Wausau Tile may have been more remote from any direct relationship with Wausau Tile than the homeowners are from Midland. However, the court in Wausau Tile did not distinguish between third parties who were direct customers of Wausau Tile and third parties who were not. We repeat, Midland has not explained why this is a difference that matters.
Midland advances additional arguments as to why it is a real party in interest. We reject these arguments.
Midland argues that it had a legal duty to mitigate damages, which was triggered when homeowners threatened Midland with lawsuits. However, Midland provides no direct authority for this proposition, relying instead on general sources for the rule that an injured party has a duty to mitigate damages. These sources, however, do not address whether Midland had a legal duty to repair, at the time that it made repairs, such that it became a real party in interest for claims that otherwise belonged to the homeowners. Wausau Tile would have had the same "duty," to the extent such a duty can be said to exist. Like Wausau Tile, Midland could have declined to repair the homes or pay for other damages and "left the affected third parties to their remedies." See Wausau Tile, 226 Wis. 2d at 255 n.13. It may have been in Midland's best interest to make repairs, just as it may have been in Wausau Tile's interest to replace and repair, but it does not follow that either company was legally bound to make the repairs that it did.
Midland also argues that the costs it incurred in response to the threat of litigation were not "voluntary," citing Kennedy-Ingalls Corp. v. Meissner, 5 Wis. 2d 100, 106-07, 92 N.W.2d 247 (1958). But Midland does not explain why its actions were any less voluntary than those by the plaintiff in Wausau Tile. To the extent that Kennedy-Ingalls and Wausau Tile could be read as conflicting with each other, we follow Wausau Tile, which is a more recent supreme court case. See Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 324, 328 N.W.2d 886 (Ct. App. 1982).
Midland also argues that, under the test articulated in Wausau Tile, Midland is the real party in interest because, in Midland's words, it "completely took care of SEMCO's future liability" by making repairs and backing up the repairs with a fully transferable five-year warranty. According to Midland, these repairs ensured that homeowners were made whole and there is no risk that Semco will face any viable homeowner claims. We disagree.
Midland does not adequately explain why the homeowners can have no viable claims against Semco. Midland seemingly assumes that all affected homeowne
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