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Thomas v. Mallett7/15/2005
law to ensure that the plaintiff had a remedy, for unless existing law was modified, the plaintiff in Collins would have had no remedy against anyone. By contrast, the Pigment Manufacturers note that Thomas had a remedy for his injuries against his landlords. Because Thomas had a remedy, the Pigment Manufacturers contend that there is no need to apply the risk-contribution theory to his case. We do not agree.
1.
Article I, Section 9 of the Wisconsin Constitution provides:
Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obligated to purchase it, completely and without denial, promptly and without delay, conformably to the laws.
The Pigment Manufacturers would have this court conclude that because Collins relied on Article I, Section 9, and because in Collins the plaintiff was without a remedy, it follows that Article I, Section 9 applies only when a plaintiff is without a remedy. See Resp't Br. at 36 ("Article I, ยง 9 was material to the analysis in Collins only because the Court concluded that Therese Collins was entitled to a remedy at law for her injuries, and unless existing law were modified she would have no remedy against anyone."). According to the Pigment Manufacturers, "The Court decided Collins to ensure that DES claimants had a remedy, not that they could choose, among all possible classes of potential defendants from whom they would collect their remedy." Resp't Br. At 41. The Pigment Manufacturers contend that because Thomas had an "an opportunity for a judgment against the landlords for the full amount demanded if he had litigated his claims," Resp't Br. At 36-37, there is no justification for extending Collins.
We do not agree with the Pigment Manufacturers' reading of Collins, and we do not agree that Article I, Section 9 is as frail as the Pigment Manufacturers would have us believe.
a.
The Collins court was concerned with more than just ensuring a plaintiff had a remedy against someone for something. Instead, the Collins court wrote that Article I, Section 9 had been interpreted in a manner that allowed the court to fashion an adequate remedy when one did not exist. Collins, 116 Wis. 2d at 182. In fashioning the particulars of Wisconsin's risk-contribution theory, the court remained mindful that, in the end, the theory would provide the plaintiff with an adequate remedy should the plaintiff meet the burden of proof. Id. at 194, 198.
We have serious concerns with the Pigment Manufacturers' attempt to displace all of the blame for lead poisoning from its white lead carbonate pigment on landlords and what effect that will have on the adequacy of a plaintiff's remedy. Although this court has held that "a duty to test for lead paint arises whenever the landlord of a residential property constructed before 1978 either knows or in the use of ordinary care should know that there is peeling or chipping paint on the rental property," Antwaun, 228 Wis. 2d at 62, this court has also concluded that a pollution exclusion in a commercial general liability insurance policy bars coverage for lead poisoning from paint that has chipped, flaked, or broken down into dust or fumes. Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 130, 596 N.W.2d 429 (1999). The result of Peace is that many victims of lead poisoning will be deprived "of an effective remedy for their harm." Id. at 151 (Crooks, J., dissenting).
While Thomas recovered from two of the landlords' insurers (Fire Insurance Exchange and Germantown Mutual Insurance), the settlemen
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