 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Midland Builders7/14/2005
Semco. The circuit court dismissed Midland's contribution claim based on the court's determination that Midland was not the real party in interest.
The elements of contribution can be generally stated as follows: (1) the parties must be joint wrongdoers; (2) the parties must have common liability because of such wrongdoing to the same person; and (3) one such party must have borne an unequal proportion of the common burden. See Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 404, 331 N.W.2d 585 (1983). Setting aside the question of whether Midland could maintain a contribution claim against Semco in light of the operation of the economic loss doctrine and real-party-in-interest principles, we determine that Midland has failed to properly plead a contribution claim.
Midland's complaint fails to allege facts showing that it might be negligent or otherwise legally liable for any of the damage caused by the defective Semco windows. Midland is to be commended for standing behind the homes it sold. But the question here is whether it has alleged in its complaint that it was obligated to do so. The answer is no and, thus, Midland has failed to plead either the first or second elements required to state a claim for contribution.
Midland relies on Rusch v. Korth, 2 Wis. 2d 321, 328, 86 N.W.2d 464 (1957), and argues that under Korth a plaintiff is not required to establish its own wrongdoing in order to bring a contribution claim and something is "radically wrong" with a rule that would require otherwise. But Korth was overruled on this very point in Farmers Mutual Automobile Insurance Co. v. Milwaukee Automobile Insurance Co., 8 Wis. 2d 512, 99 N.W.2d 746 (1959). In Farmers Mutual, the court had this to say about Korth: "As a contribution case it stands as an anomaly in the law." Farmers Mutual, 8 Wis. 2d at 517. The court explained as follows:
The Korth Case might better have been put on the general equitable principles governing subrogation as was inferred in the subsequent case of Kennedy-Ingalls Corp. v. Meissner (1958), 5 Wis. (2d) 100, 92 N.W.(2d) 247. In the more-recent decision in Bauman v. Gilbertson (1959), 7 Wis. (2d) 467, 96 N.W.(2d) 854, we commented on the Korth Case as follows (p. 470):
"The appellants urge that common liability is no longer required as an essential element of contribution under Rusch v. Korth (1957), 2 Wis. (2d) 321, 86 N.W.(2d) 464. We do not agree. The latter case in reality should not be classed as a contribution case but rather as one grounded on the principle of subrogation. Kennedy-Ingalls Corp. v. Meissner (1958), 5 Wis. (2d) 100, 106, 92 N.W.(2d) 247."
We did not intend the Korth Case to change the traditional law of contribution in this state so as to make it unnecessary for the party seeking contribution to allege and prove his negligence, the negligence of the defendant, and common liability resulting from such joint negligence. The language therein used extending the doctrine of contribution to cases when no common liability exists at the time of the accident cannot be approved.
After a careful review of the cases and the implications put on the language of the Korth Case, this court is of the opinion that, to recover on the basis of contribution, non-intentional negligent tort-feasors must have a common liability to a third person at the time of the accident created by their concurring negligence. Language to the contrary in the Korth Case is overruled. Situations like those of the Korth Case may give rise to a claim for subrogation in equity but on principle cannot be based on the equitable principles governing contribution. It follows, therefore, that when one of two or more joint
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|