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Ahnert v. Employers Insurance Company of Wausau

United States District Court, E.D. Wisconsin

May 15, 2017

DANIEL AHNERT and BEVERLY AHNERT, Plaintiffs,
v.
EMPLOYERS INSURANCE COMPANY OF WAUSAU, SPRINKMANN SONS CORPORATION, WISCONSIN ELECTRIC POWER COMPANY, and PABST BREWING COMPANY, Defendants.

          MEMORANDUM OF LAW SUPPORTING THE COURT'S DENIAL OF WISCONSIN ELECTRIC POWER COMPANY'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 52)

          HON. PAMELA PEPPER United States District Judge.

         I. BACKGROUND

         Plaintiffs Daniel and Beverly Ahnert filed this asbestosis case on February 25, 201. Dkt. No. 1. The complaint alleged that plaintiff Daniel Ahnert had been exposed to asbestos, which had caused his medical condition. On May 4, 2010, the United States Judicial Panel on Multidistrict Litigation transferred the case to the federal court for the Eastern District of Pennsylvania, where Judge Eduardo C. Robreno was presiding over multidistrict litigation (“MDL”) involving thousands of asbestosis cases. Dkt. No. 28.

         Some two and a half years later, Beverly Ahnert-individually, and as the executrix of the estate of Daniel Ahnert (who since had passed away)-filed a new case in the Eastern District of Wisconsin. Ahnert v. Employers Ins. Co. of Wausau, et al., Case No. 13-cv-1456-cnc (E.D. Wis.) (“the 2013 case”) alleged that on July 7, 2011, Daniel Ahnert had passed away as a result of asbestos-related diseases. This case was assigned to Judge Charles N. Clevert; it was not transferred to an MDL court.

         On September 8, 2014-while the 2013 case was pending before Judge Clevert-the MDL court remanded this case back to the Eastern District of Wisconsin. Dkt. No. 34. In his suggestion of remand order, Judge Robreno stated that he had denied the summary judgment motions filed by defendants Pabst Brewing Company and Wisconsin Electric Power Company; he had granted in part and denied in part defendant Sprinkmann Sons Corporation's motion for summary judgment. Dkt. No. 34-1 at 6-7. Judge Robreno found that the case was ready for trial (subject to any trial-related motions in limine and Daubert motions). Dkt. No. 34-1 at 7. He severed “[a]ny demand for punitive damages, ” and the MDL court retained “claims for punitive or exemplary damages.” Id. In a footnote, Judge Robreno noted that he was severing the issue of punitive damages with regard to all of the cases in the MDL proceeding. Id. at 8, n.1.

         A few months later, Beverly Ahnert moved to consolidate this case with the 2013 case. Dkt. No. 35. This court deferred ruling on that motion until Judge Clevert could decide the outstanding motions for summary judgment in the 2013 case. Dkt. No. 44. The court also ordered that defendants Pabst and Sprinkmann could “update” their summary judgment motions (the ones upon which Judge Robreno had ruled) on two discrete issues that Judge Robreno did not address: the Wisconsin Construction Statute of Repose (“CSOR”) and the Safe Place Act. Id.

         The court issued a second, text-only order, extending the deadline for Sprinkmann and Pabst to file their updates on these issues. Meanwhile, Wisconsin Electric-whom the court had not given permission to update its summary judgment motion-filed a summary judgment motion. Dkt. No. 52. In its brief, Wisconsin Electric asked for summary judgment based on the Safe Place Statute and the CSOR. With regard to the Safe Place Statute, Wisocnsin Electric argued that plaintiff Daniel Ahnert had been employed by an independent contractor while working on its premises. It asserted that because Wisconsin law provides that a principal employer is not liable in tort for injuries sustained by the employee of an independent contractor, and because neither of the two exceptions to that rule applied, Wisconsin Electric was not liable to the plaintiffs for his injuries. With regard to the CSOR, it argued that the work done by Ahnert and others constituted an improvement to the property, and not maintenance. Finally, it argued that the plaintiffs were not entitled to punitive damages. Dkt. No. 53.

         Ignoring the court's instructions, Sprinkmann (dkt. no. 55) and Pabst (dkt. no. 58) filed new summary judgment motions (although Pabst captioned its motion as an amended motion).

         On January 6, 2016, Judge Clevert denied Employers' and Sprinkmann's motion for summary judgment in the 2013 case. Ahnert v. Employers Insurance of Wausau, Case No. 13-cv-1456-cnc at Dkt. No. 199. The next day, he denied Pabst's motion for summary judgment. Id. at Dkt. No. 200. A couple of weeks later, he denied Wisconsin Electric's motion for summary judgment. Id. at Dkt. No. 201. The plaintiffs then filed another motion in this court, asking the court to consolidate the two cases. Dkt. No. 89.

         On March 31, 2017, [1] this court denied the defendants' pending summary judgment motions, and granted the plaintiffs' second motion to consolidate the two cases. Dkt. No. 101.

         Despite the fact that the court did not authorize Wisconsin Electric to update its summary judgment motion on the Safe Place and CSOR issues, the court has considered the defendant's arguments on those issues. The court finds that genuine issues of material fact preclude summary judgment on the issue question of whether the Safe Place Statute and the CSOR bar the plaintiffs' claims, and will deny the defendant's motion for summary judgment on those issues. The court will not address the defendant's arguments on the issue of punitive damages, because Judge Robreno retained all punitive damages issues for decision by the MDL court.

         II. SUMMARY JUDGMENT STANDARD

         Rule 56 requires that a moving party identify each claim or defense on which the party seeks summary judgment. Fed.R.Civ.P. 56(a). If the moving party can show there is no genuine issue of material fact and an entitlement to judgment as a matter law, the court should grant the motion. Id. However, to prove there are no genuine, factual disputes, the moving party must support the motion with citations to the record, such as “depositions, documents . . . affidavits or declarations, stipulations.” Fed.R.Civ.P. 56(c)(1)(A). The moving party may show “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). In ruling, the court may consider the other materials in the record and not judgment just those cited by the parties. Fed.R.Civ.P. 56(c)(3).

         III. FINDINGS OF FACT

         Plaintiff Beverly Ahnert resides in White Settlement Texas, where she lived with Daniel Ahnert prior to his death on July 7, 2011. Dkt. No. 1 at ¶1; Dkt. No. 53-7. The complaint contains allegations that Daniel Ahnert was exposed to and inhaled airborne asbestos fibers released while he was using or removing such products, or was working in proximity to others using or removing such products. Dkt. No. 1 at ¶25. Dr. Stephen Haber determined that Daniel Ahnert developed asbestos-related pleural disease from his occupational exposure to asbestos. Dr. Haber further opined, based on Ahnert's work history, that the cumulative asbestos exposure contributed to his disease. Case No. 10-cv-67443 (E.D. Pa.), Dkt. No. 396-4.[2]

         The plaintiffs allege that Wisconsin Electric is the “owner or operator of premises where asbestos products were used.” Dkt. No. 1 at ¶15. There are three Wisconsin Electric facilities relevant to this case: the Oak Creek Power Plant, Port Washington and Lakeside. Id. at ¶¶48-57, Ex. B.

         In the MDL litigation before Judge Robreno, the plaintiffs produced Wisconsin Electric's 1958 contracts with the companies it hired to install insulation materials for Unit 5 in the Oak Creek Power Plant. Case No. 10-67443 (E.D. Pa.), Dkt. No. 396-18, 19 and 20. Wisconsin Electric provided insulation requirements to bidders, and the products contained asbestos. Id. at 396-13 at 5154, 396-18-20. Its contract with Sprinkmann (one of the companies retained to provide and install insulation) provided specifications for materials containing asbestos. Id. at 396-17, 37 at ¶ 52138. Asbestos was used throughout the boiler. Id. at 396-16, 18-20.

         In the 1980s, Daniel Ahnert and other co-workers began to work on the burner deck of Unit 5 at the Oak Creek Power Plant. Jon Shorougian-who, like Ahnert, had been a member of Local 601-testified that Ahnert was his partner for six months, and that the work involved overtime hours (shifts longer than eight hours). Case No. 10-156, Dkt. No. 64-5 at 6, 20. The insulation removal was done in part by Sprinkmann, but Wisconsin Electric told Shorougian and Ahnert that they, too, were safe to remove the insulation. Id. at 9, 11, 12, 18, 49, 50. The insulation removal made the surrounding environment “always really dusty.” Id.

         According to Shorougian, he and Ahnert were “replacing some of the old coal-fired pieces with natural gas-fired pieces, which involved a lot of cutting, grinding, [and] welding.” Id. at 7. Coal was the main process of burning fuel, even after the additional of gas nozzles to the burner deck. Id. at 14. The replacement process involved tearing off casing to reveal insulation that went from the floor up to the burner deck, twenty-five to thirty feet up. Id. at 8, 10, 11. Behind the boiler jacket was a fibrous insulation material, both hard and soft. Id. at 9. The brick insulation underneath the boiler was soft and crumbly. Id. at 10.

         Shorougian testified that Wisconsin Electric initially told him and Ahnert that the insulation was not asbestos, so they continued to strip the boiler down to the fibrous material like insulation. Id. at 9. But, as the facility became “really dusty, ” the workers began to worry, and they “took a sample and gave it to one of [the] union representatives and asked him to have it tested … and found out it was positive.” Id. at 12. Both Shorougian and Ahnert still were on the job when the results came back. Id. at 50.

         There were approximately sixteen gaskets inside the boiler that Shorougian and Ahnert were removing. Id. at 14, 15 and 74. The gaskets were eight by eight inches, and took about an hour each to remove. Id. at 74. Shorougian and Ahnert's noses were about six to eight inches away from this work, and they breathed the gasket dust. Id. at 75. The gaskets were removed and a scraper or power grinder with a wire wheel was used to clean up the faces of the gaskets. Id. at 15, 74. Shorougian and Ahnert also removed the metal cover on the burner deck, which disturbed insulation material. Id. at 76. Dust would be kicked up, and would float around the areas where they were working. Id. Finally, there were bricks and insulation between the floors, that the workers believed contained asbestos. Id. at 47.

         The Sprinkmann employees on site worked to install and remove the insulation. Id. at 16-17, 89-90. Dust was in the air, but Wisconsin Electric assured the workers that there were no hazardous materials. Id. at 18. The foreman of Foster Wheeler (a company which manufactured and sold insulation products)[3] worked with a Wisconsin Electric engineer. Id. at 34-35. The Wisconsin Electric ...


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