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Thomas v. Mallett7/15/2005
t with Fire Insurance Exchange occurred three years before Peace was decided, and Germantown Mutual Insurance Company apparently did not have a pollution exclusion, as it never raised one. After Peace was handed down, however, the insurer for State Farm successfully raised its pollution exclusion, which contained the same language considered in Peace, and was dismissed from the suit. It is this latter occurrence that is troublesome, as it highlights the emerging ramifications Peace holds for future victims of lead poisoning. Those victims may not share Thomas's chance in being able to recover something from their negligent landlords.
Also troubling is the fact that landlords can immunize themselves from liability for "their acts or omissions related to lead poisoning or lead exposure of a person who resides in or has visited the dwelling or unit if, at the time that the lead poisoning or lead exposure occurred, a certificate of lead-free status or a certificate of lead-safe status was in effect for the dwelling or unit." Wis. Stat. ยง 254.173(2). As Thomas has established on his summary judgment record, however, the dangers of lead poisoning from lead paint exist notwithstanding a "lead-safe status." This court has recognized the same. See Peace, 228 Wis. 2d at 130 n.16 (equating lead as a contaminant or pollutant "in the same way that a loaded pistol is a dangerous weapon, even when it is locked up in a gun case, and a mamba is a deadly poisonous snake, even when it is confined in a reptile house.").
b.
Further, the Pigment Manufacturers' reading of the importance of Article I, Section 9 to Collins is in error.
As noted, 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. The only "comparable justification" for extending the risk-contribution theory, the Pigment Manufacturers contend, is when a plaintiff is remediless.
We do not agree with the assumption of the Pigment Manufacturers' argument. They assume that Article I, Section 9 becomes operative only when a plaintiff is remediless. Stated in the contrapositive, the Pigment Manufacturers assume that when someone has a remedy, Article I, Section 9 is not relevant. The import of this argument is that where recovery has been had against one tortfeasor, all other tortfeasors are necessarily absolved.
However, as Judge Brown concluded in his concurring opinion below:
The plain meaning of this section is that every person is entitled to a certain remedy for "all injuries or wrongs which he may receive in his person." Notice that the wording is in the disjunctive. The way I read this clause, it means that even assuming only one injury, if that injury was brought about by separate wrongs against the person, that person is entitled to a remedy for each "wrong."
Thomas, 275 Wis. 2d 377, (Brown, J., concurring) (emphasis in original). Judge Brown went on to write:
I have never seen a case that insulates a wrongdoer from being exposed to a lawsuit just because there exists a remedy against another wrongdoer.
Id.
We agree with Judge Brown's reading and sentiment. See Ross v. Ebert, 275 Wis. 523, 526, 82 N.W.2d 315 (1957) (the wrongs contemplated by this provision are those resulting from a party's legal right). See also Scholberg v. Itnyre, 264 Wis. 211, 213, 58 N.W.2d 698 (1953); Menasha Wooden Ware Co. v. Winter, 159 Wis. 437, 442, 150 N.W. 526 (1915). This court has previously explained that we examine three sou
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