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Wosinski v. Advance Cast Stone Co.

Court of Appeals of Wisconsin, District I

July 11, 2017

Amy J. Wosinski, Eric Wosinski, a minor and Steven J. Wosinski, Sr., Plaintiffs-Respondents,
v.
Advance Cast Stone Co. and Milwaukee County, Defendants-Respondents, Guhring, Inc., Plaintiff, Liberty Surplus Insurance Corporation and Liberty Insurance Underwriters, Inc., Defendants-Appellants. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-RESPONDENTS,
v.
MILWAUKEE COUNTY AND ADVANCE CAST STONE CO., DEFENDANTS-RESPONDENTS, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. CHRISTOPHER KELLNER, PLAINTIFF,
v.
ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. AMY J. WOSINSKI, ERIC WOSINSKI, A MINOR, STEVEN J. WOSINSKI, SR. AND GUHRING, INC., PLAINTIFFS,
v.
MILWAUKEE COUNTY, LIBERTY SURPLUS INSURANCE CORPORATION, LIBERTY INSURANCE UNDERWRITERS, INC. AND ADVANCE CAST STONE CO., DEFENDANTS. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-APPELLANTS,
v.
MILWAUKEE COUNTY, LIBERTY SURPLUS INSURANCE CORPORATION, LIBERTY INSURANCE UNDERWRITERS, INC. AND ADVANCE CAST STONE CO., DEFENDANTS-RESPONDENTS. CHRISTOPHER KELLNER, PLAINTIFF,
v.
ADVANCE CAST STONE CO., LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS. AMY J. WOSINSKI, STEVEN J. WOSINSKI, SR. AND ERIC WOSINSKI, A MINOR, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS, GUHRING, INC., PLAINTIFF,
v.
ADVANCE CAST STONE CO., DEFENDANT-APPELLANT-CROSS-RESPONDENT, MILWAUKEE COUNTY, DEFENDANT-RESPONDENT, LIBERTY INSURANCE UNDERWRITERS, INC. AND LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANTS. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-RESPONDENTS,
v.
ADVANCE CAST STONE CO., DEFENDANT-APPELLANT, LIBERTY INSURANCE UNDERWRITERS, INC., MILWAUKEE COUNTY AND LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANTS. CHRISTOPHER KELLNER, PLAINTIFF,
v.
LIBERTY INSURANCE UNDERWRITERS, INC., ADVANCE CAST STONE CO. AND LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANTS. AMY J. WOSINSKI, ERIC WOSINSKI, A MINOR, STEVEN J. WOSINSKI, SR., PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS, GUHRING, INC., PLAINTIFF,
v.
MILWAUKEE COUNTY, DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION, DEFENDANT-APPELLANT, ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT-CROSS-RESPONDENT, LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANT-APPELLANT-CROSS-RESPONDENT. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS-RESPONDENTS,
v.
MILWAUKEE COUNTY AND ADVANCE CAST STONE CO., DEFENDANTS-RESPONDENTS, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. CHRISTOPHER KELLNER, PLAINTIFF,
v.
ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS. AMY J. WOSINSKI, ERIC WOSINSKI, A MINOR, STEVEN J. WOSINSKI, SR. AND GUHRING, INC., PLAINTIFFS,
v.
ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS, MILWAUKEE COUNTY, DEFENDANT. ESTATE OF JARED C. KELLNER, BY HIS SPECIAL ADMINISTRATOR AND DAWN KELLNER, PLAINTIFFS,
v.
ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS, MILWAUKEE COUNTY, DEFENDANT. CHRISTOPHER KELLNER, PLAINTIFF,
v.
ADVANCE CAST STONE CO., DEFENDANT-RESPONDENT, LIBERTY SURPLUS INSURANCE CORPORATION AND LIBERTY INSURANCE UNDERWRITERS, INC., DEFENDANTS-APPELLANTS.

         APPEALS and CROSS-APPEALS from judgments of the circuit court for Milwaukee County Nos. 2011CV1003, 2011CV1007, 2012CV8327, : CHRISTOPHER R. FOLEY, Judge. Judgments affirmed in part, reversed in part, and cause remanded for further proceedings.

          Before Brennan, P.J., Kessler and Brash, JJ.

          BRASH, J.

         ¶1 Advanced Cast Stone (ACS) and its insurer, Liberty Surplus Insurance Corporation and Liberty Insurance Underwriters Inc. (collectively, "Liberty"), appeal the judgments as entered by the trial court on July 11, 2014, regarding the liability for and damages resulting from the collapse of a concrete panel at the O'Donnell Park Parking Structure (O'Donnell Park). ACS was found to be primarily negligent for the failure of the panel, and relief was granted to the Estate of Jared Kellner and Dawn Kellner (collectively, "Kellner Plaintiffs"), to Steven J. Wosinski, Amy J. Wosinski, and Eric Wosinski (collectively, "Wosinski Plaintiffs"), and to Milwaukee County, as follows:

• Various compensatory damages to the Kellner Plaintiffs relating to the death of Jared Kellner, amounting to over $6.8 million;
• Various compensatory damages to each of the Wosinski Plaintiffs for their injuries, totaling over $11.4 million;
• Punitive damages to both the Kellner Plaintiffs and the Wosinski Plaintiffs in the amount of $15 million; and
• Compensatory damages to Milwaukee County for repairs to O'Donnell Park in the amount of $6 million.

         The total damages award was over $39 million.

         ¶2 On appeal, ACS argues (1) that the claims were barred based on time limitations as set forth in WIS. STATS. §§ 893.89 and 893.43 (2015-16)[1]; (2) that there were several erroneous evidentiary rulings made during the course of the trial that prejudiced ACS; and (3) that certain damages are not sufficiently supported by the evidence and should therefore be dismissed or reduced, including the punitive damages award, the damages to the Estate of Jared Kellner for pre-death pain and suffering, and the damages to Milwaukee County.

         ¶3 Furthermore, Liberty appeals the trial court's finding rendered post-verdict with regard to insurance coverage issues: that there was coverage as a matter of law. Moreover, Liberty appeals the trial court's finding that Liberty had breached its duty to defend and duty of good faith and fair dealing, and was therefore responsible for the entire amount of the damages awarded in the verdict.

         ¶4 Additionally, the Kellner Plaintiffs and the Wosinski Plaintiffs filed cross-appeals on several issues: (1) that the pre-trial offer of settlement made by the Kellner Plaintiffs was valid; (2) that the Wosinski Plaintiffs are entitled to statutory interest on the entire judgment, including costs; and (3) that the statute of repose does not apply as a matter of law and, as such, summary judgment should have been granted.

         ¶5 Upon review, we reverse the trial court's finding that Liberty breached its duty to defend ACS. As a result, Liberty is responsible for coverage only to the extent provided in ACS's policy. Additionally, we conclude that there was no claim by ACS for breach of duty of good faith and fair dealing before the trial court; thus, its award of damages based on its finding that Liberty breached that duty is unsupported, and we therefore reverse that ruling as well.

         ¶6 We also reverse and remand on the issue of coverage for the damages awarded to Milwaukee County, as they are subject to the "your work" exclusion of the policy, and therefore further findings are necessary to itemize and categorize the damages. The jury verdict and all other rulings are affirmed.

         BACKGROUND

         ¶7 This case stems from the tragic accident that occurred on June 24, 2010, at the O'Donnell Park parking garage in Milwaukee, where a large concrete panel fell from the structure, killing Jared Kellner and injuring Steven, Amy, and Eric Wosinski.

         ¶8 On that afternoon, Steven Wosinski, together with his wife, Amy, their son, Eric, and Eric's friend, Jared Kellner, had parked their vehicle at O'Donnell Park to spend the evening at Summerfest. They were exiting the parking garage when one of the decorative concrete panels-specifically, the panel designated as 56AL, weighing approximately 13.5 tons and measuring over thirty-three feet long-fell from the structure. It crushed Jared Kellner, killing him. It also caught Amy Wosinski in the back of the left heel, which ultimately led to her lower left leg being amputated below the knee. Eric Wosinski suffered a broken right leg in his escape from the falling panel. All of this was witnessed by Steven Wosinski.

         ¶9 Milwaukee County, which owns O'Donnell Park, closed it immediately after the accident, and began an investigation to determine the reason that Panel 56AL had fallen. The investigation focused on the manner in which Panel 56AL, as well as the all of the other concrete panels in the structure, had been constructed and installed. O'Donnell Park was closed for over a year while this investigation ensued and the necessary repairs were completed.

         Construction of O'Donnell Park

         ¶10 Milwaukee County began the construction process on O'Donnell Park in the late 1980's, hiring J.H. Findorff & Sons, Inc. (Findorff) in July 1987 as the construction manager for the project. Milwaukee County also hired ACS to manufacture and install decorative concrete panels that hung on the side of the structure. ACS, in turn, hired Dietz Engineering, Inc. (Dietz), to design those panels. The panel design specifications prepared by Dietz indicated the size of each panel, the reinforcing of the panels, and the hardware that was to be used to connect each panel to the structure.

         ¶11 When investigators examined Panel 56AL after the accident, it was found that it was not manufactured and installed by ACS in accordance with Dietz's specifications. Dietz had called for a specific type of connector to be installed in the panel, a stainless steel coil rod into which a threaded pin would be inserted. Part of the pin was to protrude from the panel and connect with a stainless steel cup, referred to as a "sleeve, " in the underlying concrete wall. Dietz's plan indicated that there should have been four connectors threaded with pins in each panel to be dropped into the sleeves in the concrete wall. The sleeves would then be filled with cement to form four solid connections. During the investigation, it was discovered that the coiled connectors specified in the plans had been replaced with smooth receiving tubes; thus, the threaded pins could not be inserted into the connectors and were missing from Panel 56AL.

         ¶12 As a result, during installation, instead of utilizing the "pin and sleeve" method referred to above, ACS instead used what is referred to as the "drill and pound" method to install Panel 56AL. This method involved drilling two holes through the panel and then pounding rebar through the drilled hole. This was not the method specified by Dietz-in fact, it was not a method recommended by the construction industry-because it did not comply with the building code standards at that time for connecting a panel of that size. This issue was compounded by the manner in which the drill and pound method was executed to attach Panel 56AL: the holes were drilled too close to the edge of the concrete wall to attach the panel, which caused cracks in the concrete wall that further compromised the structural integrity of the panel. This was found to be a cause of the collapse of the panel.

         ¶13 These discrepancies were discovered immediately as investigators compared the connection hardware of the collapsed panel to the design drawings that had been submitted to Milwaukee County by ACS. The drawings on file with Milwaukee County, referred to as the "As-Built Drawings, " showed the pin and sleeve method of connection as originally designed by Dietz; they did not reflect the change in connection method utilized by ACS.

         ¶14 These unreported deviations in the construction and installation of Panel 56AL indicated that ACS had not complied with its contractual duties for the O'Donnell Park project with Milwaukee County. In the first place, any deviations from the design specifications made during construction required that a change order be submitted in writing and approved prior to continuing work in those areas. Furthermore, ACS was obligated to maintain and update the As-Built Drawings on file with Milwaukee County, to reflect all changes made to the original plans for the structure. Moreover, Findorff and Milwaukee County denied that they had any knowledge that there had been a deviation from the design specifications with regard to the construction and installation of any of the panels.

         ¶15 Construction of O'Donnell Park was substantially completed in 1993. It was thereafter open to the public.

         Procedural Posture

         ¶16 The Plaintiffs filed suit in January 2011.[2] They named as defendants ACS, Findorff, Dietz, and Milwaukee County, along with CD. Smith Construction Company, Inc. (CD. Smith), which designed the wall to which Panel 56AL was attached. The Plaintiffs alleged negligence on the part of the defendants, along with allegations of fraud, concealment, or misrepresentation relating to purported defects and deficiencies in Panel 56AL. They also included claims for punitive damages. Additionally, Milwaukee County filed a cross-claim for breach of contract against ACS for damages it incurred as a result of the accident.

         ¶17 At the time of the accident in June 2010, ACS was insured by Liberty. The coverage included a $1 million Commercial General Liability policy, together with $9 million in excess coverage. Thus, the total policy limits were $10 million.

         ¶18 The policy included a duty to defend up to the policy limits. It provided coverage for an "occurrence, " defined as "an accident." However, it also included an intentional acts exclusion under which '"[b]odily injury' or 'property damage' expected or intended from the standpoint of the insured" was not covered.

         ¶19 ACS tendered defense of this case to Liberty around July 2010, which Liberty accepted on November 18, 2011, but under a reservation of rights. In the reservation of rights letter, Liberty stated it believed that WIS. STAT. § 893.89, referred to as the statute of repose, would bar the negligence claims. The statute of repose states, in pertinent part, that "no action may be commenced ... against any person involved in the improvement to real property after the end of the exposure period, " which is defined as "the [ten] years immediately following the date of substantial completion of the improvement to real property." WIS. STAT. § 893.89(1)-(2). Additionally, Liberty noted that coverage for claims relating to the allegations of fraud, concealment, and misrepresentation-allegations that would invoke an exception to the statute of repose-did not exist under the intentional acts exclusion.

         ¶20 ACS, Findorff, Dietz, and CD. Smith moved for summary judgment in July 2012, primarily based on the statute of repose. They argued that the ten year exposure period barred the negligence claims because the construction of O'Donnell Park had been substantially completed nineteen years prior to the accident. ACS also moved for summary judgment against Milwaukee County's breach of contract claims, asserting the statute of limitations on contracts.

         ¶21 The Plaintiffs countered that summary judgment should be denied based on an exception to the statute of repose for "[a] person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property." WIS. STAT. § 893.89(4)(a). Likewise, Milwaukee County argued that equitable estoppel applied to keep ACS from asserting the statute of limitations on contract claims on the same basis.

         ¶22 In its decision on these motions, the trial court dismissed CD. Smith, finding that there was no evidence of fraud, concealment, or misrepresentation on its part, and therefore the statute of repose barred the claims against it. The court also dismissed Dietz, again finding no evidence of fraud, concealment, or misrepresentation on its part, thereby invoking the limitation of the statute of repose. The court further noted that Dietz's contractual responsibilities were to ACS, not to Milwaukee County, so there was no contractual duty to disclose any design or installation changes of which they may have been aware.

         ¶23 However, the trial court denied the summary judgment motions of ACS and Findorff, finding there to be a material issue of fact as to whether there was concealment or misrepresentation on the part of either defendant with regard to the "defective or deficient manner" in which the panels were secured. The court also denied ACS's summary judgment motion relating to Milwaukee County's breach of contract claims on the same premise: that ACS was equitably estopped from asserting the six-year statute of limitations on contracts due to the existence of a material issue of fact as to whether ACS concealed or misrepresented the manner in which Panel 56AL was installed.

         ¶24 At the time these other dispositive motions were filed, Liberty never filed a declaratory judgment motion to argue its position on the issue of coverage, nor did it ever file a motion for bifurcation of the liability issues and the insurance coverage issues. However, Liberty reiterated its coverage position in its pretrial report, submitted prior to the final pretrial conference held on October 8, 2013. That pretrial report also included proposed special verdict questions relating to the fraud, concealment, and misrepresentation allegations against ACS, presumably to establish a potential trigger for the intentional acts exclusion of the policy. The Kellner Plaintiffs objected to the questions and moved to bifurcate the coverage issues from the liability trial. They were joined by ACS in that motion.

         ¶25 The trial court granted the motion to bifurcate. It concluded that Liberty's apparent trial strategy would seriously undermine ACS's defense, particularly with regard to the punitive damages claims. Thus, the trial court determined that bifurcation was necessary and warranted. Additionally, the court ruled that Liberty's coverage counsel could not actively participate at the trial.

         ¶26 The jury trial lasted six weeks. In its verdict, the jury found that the negligence of several defendants had caused Panel 56AL to fail, and apportioned liability as follows: ACS: 88%, Milwaukee County: 2%, and Findorff & Sons: 10%.

         ¶27 Specifically, the jury found that ACS, Findorff, and Milwaukee County were all negligent with respect to either the construction or maintenance of O'Donnell Park, and that this negligence was a cause of the panel failure. Furthermore, the jury found that ACS had intentionally disregarded the Plaintiffs' rights, and awarded punitive damages. In addition to the punitive damages questions, the special verdict also asked whether ACS had "intentionally conceal[ed]" and "misrepresented]" a "deficiency or defect in the panel installation at O'Donnell Park"; the jury answered in the affirmative.

         ¶28 Liberty filed several post-verdict motions, including a motion for declaratory judgment that they had no duty to indemnify ACS based on the jury's finding of intentional concealment and misrepresentation; a motion for declaratory judgment that Liberty had not waived its coverage defenses; a motion for a new trial because Liberty had been barred from participating in the merits trial; a motion for reconsideration of the decision to have the same jury from the liability trial sit for a coverage trial; and a motion for recusal for any future coverage trial on this case. The other parties filed countering motions asserting that there was coverage as a matter of law.

         ¶29 The trial court completely rejected Liberty's arguments. At the motion hearing on February 10, 2014, the court granted the other parties' counter motions, ruling that there was coverage as a matter of law. In particular, it found that the panel collapse was an accident and thus qualified as an "occurrence" under the policy. Furthermore, the court found that regardless of the jury findings relating to concealment and misrepresentation, and the intentional disregard of the Plaintiffs' rights, there was no evidence supporting a contention that ACS "intended or was substantially certain that the panel would fall off, " and therefore the intentional acts exclusion of the policy did not apply.

         ¶30 Moreover, the trial court found that although Liberty had provided a defense to ACS, its actions worked against ACS at trial. As a result, the trial court ruled that Liberty's conduct amounted to a breach of the duty to defend as well as the duty of good faith and fair dealing. This decision was based on Liberty's failure to move for bifurcation, together with its attempt to argue (based on the proposed special verdict questions submitted with its pretrial report) that ACS had installed the panels with the intent or substantial certainty that they would fall. In fact, the court stated that these actions by Liberty rendered its defense a "sham." The trial court therefore ruled that there was coverage up to the policy limits. Additionally, it found that by committing these breaches, Liberty had "waived, [was] estopped, or [had] forfeited the right to interpose [its] coverage defenses."

         ¶31 However, the trial court did not stop there. At a subsequent post-verdict motion hearing on June 17, 2014, it ruled that Liberty's breach of its duties to ACS rendered them liable for "all damages that naturally flow from that breach." In other words, Liberty was obligated to pay the entire amount of the $39 million judgment, regardless of policy limits.

         Discussion

         I. ACS's Issues on Appeal

         ¶32 On appeal, ACS argues that the trial court erred on several different fronts. First, procedurally, ACS contends that the trial court erred in allowing the claims against it to go forward despite the limitations of the statute of repose and the statute of limitations on contract claims. Second, ACS alleges that there were several erroneous evidentiary rulings made during the trial. And third, ACS asserts that the trial court erred in entering judgment on the punitive damages and emotional distress damages awarded by the jury as well as damages awarded to Milwaukee County. As such, ACS seeks several means of relief: (1) all of the claims against it being dismissed; (2) a new trial; or (3) reversing the damages awards or amending the judgments on damages that were entered. We disagree and affirm.

         A. Time Restrictions on Claims

         ¶33 In its procedural arguments, ACS seeks a reversal of the trial court's summary judgment determination, or a reversal of the trial court's denial of ACS's motion for directed verdict, such that all claims against ACS are dismissed. It asserts that the evidence is not sufficient to meet the standards required to apply the exception to the statute of repose set forth at WIS. STAT. § 893.89(4), allowing the Plaintiffs' claims, nor is it sufficient to apply equitable estoppel to Milwaukee County's claims.

         1. There is sufficient evidence to support the jury's finding of concealment and misrepresentation on the part of ACS, thereby triggering the exception to the statute of repose.

         ¶34 The statute of repose, set forth at WIS. STAT. § 893.89, imposes a time limit, referred to as the "exposure period, " for bringing claims related to the improvement of real property. WIS. STAT. § 893.89(1). The exposure period runs for ten years after "the date of substantial completion" of the improvements. Id. No claims for injuries to person or property can be made against the owner of the property or any person involved in the improvements for any defect or deficiency related to the construction after the end of the exposure period. WIS. STAT. § 893.89(2).

         ¶35 However, there are several exceptions also set forth in the statute of repose. The statute is rendered inapplicable in cases where "[a] person ... commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property." WIS. STAT. § 893.89(4)(a). The burden of proving that an exception is applicable lies with the Plaintiffs. Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶44, 298 Wis.2d 640, 726 N.W.2d 258. We review the application of a statute to the fact of a case independently, but benefiting from the trial court's analysis. See id., ¶25.

         ¶36 Although this accident occurred well after the ten-year exposure period had expired, as O'Donnell Park was substantially completed in 1993, we find there to be sufficient evidence in the record to support the jury's findings that triggered the concealment or misrepresentation exception. In the first place, the final As-Built Drawings filed with Milwaukee County reflect the original design of the panels by Dietz; they do not indicate the changes in the construction of Panel 56AL and the manner in which it was actually installed. Furthermore, there is testimony from an ACS employee, James Coates, who was the foreman of the O'Donnell Park project, that he discussed the changes in the installation of the panel with Erhardt Garni, the owner of ACS at that time, and they agreed not to put the changes in writing.

         ¶37 Moreover, there is also testimony from another ACS employee, Stanley Petts, with regard to the installation of the panels. Petts testified that he was called in by Coates to do some "backup drilling" on the panels where they were attached to the wall. Backup drilling is generally understood to mean the installation of extra pins in a panel, as opposed to the installation of the anchoring pins for the panel. Petts stated that the installation method he used in his "backup drilling" was not, on its own, a safe means of installing the panel. Thus, a reasonable inference drawn from this testimony is that Coates misled one of his own employees with regard to the installation method being utilized.

         ¶38 This evidence, reviewed cumulatively and together with the reasonable inferences that flow therefrom, is sufficient to support the jury's findings that ACS concealed and misrepresented the changes in the construction and installation of Panel 56AL. Consequently, the exception to the statute of repose relating to fraud, concealment, or misrepresentation was triggered in this case, and, therefore, ACS's argument that the statute of repose bars the Plaintiffs' claims fails.

         2. It was not error for the trial court to apply equitable estoppel to bar ACS from asserting a defense based on the six-year statute of limitations for contracts against the claims of Milwaukee County.

         ¶39 Generally, when "the facts are undisputed, or when the facts are disputed and the [trial] court's factual findings are not clearly erroneous, this court reviews the application of equitable estoppel de novo.'" Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2006 WI 67, ¶21, 291 Wis.2d 259, 715 N.W.2d 620 (italics added). "Proof must be clear, satisfactory, and convincing and must not rest on mere inference or conjecture." Nugent v. Slaght, 2001 WI.App. 282, ¶29, 249 Wis.2d 220, 638 N.W.2d 594. "[O]nce the elements of equitable estoppel have been established as a matter of law, the decision to actually apply the doctrine to provide relief is a matter of discretion." Id., ¶30.

         ¶40 The primary reason for applying equitable estoppel to bar a defendant from asserting the statute of limitations is when '"the conduct and representations of [the defendant] were so unfair and misleading as to outbalance the public's interest in setting a limitation on bringing actions.'" Hester v. Williams, 111 Wis.2d 634, 645, 345 N.W.2d 426 (1984) (citation omitted). There are four elements to be considered in applying equitable estoppel: '"(1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment.'" Nugent, 249 Wis.2d 220, ¶29 (citation omitted). Proof of actual fraud is not required. State ex rel. Susedik v. Knutson, 52 Wis.2d 593, 597, 191 N.W.2d 23 (1971).

         ¶41 All of these elements are present in this case. The jury reasonably found, as discussed in the previous section, that ACS concealed and misrepresented changes in the construction and installation of Panel 56AL, and that this was a cause of its collapse. Thus, the first two elements of equitable estoppel are satisfied.

         ¶42 As to the third element, reliance, ACS argues that because Milwaukee County supervised this construction project, and that the County and Findorff should have seen how the connections were done on the installation of the panel, that the reliance element was not met. However, this does not take into consideration that ACS was contractually bound to disclose in writing any and all changes to the design that were made during the construction and installation process. Nor does it take into account that ACS filed final As-Built Drawings with Milwaukee County that did not reflect the changes that were made to Panel 56AL.

         ¶43 This evidence is sufficient to show that Milwaukee County did not know of the deviations to the construction and installation of Panel 56AL. The County reasonably relied on the provisions of its contract with ACS, and on the As-Built Plans that ACS filed that indicated that Dietz's design for the construction and installation of the panels had been adhered to. Moreover, it is reasonable to infer that this reliance was to Milwaukee County's detriment, the fourth element, in that the County incurred the expense of having to pay for the investigation of the accident and the repairs to the panels, as well as the defense and prosecution of this action.

         ¶44 Because the record supports these jury findings, it was not an erroneous exercise of discretion for the trial court to apply equitable estoppel to bar ACS's statute of limitations defense. As a result, ACS's argument that Milwaukee County's claims are barred fails.

         B. Evidentiary Rulings

         1. The trial court did not err in instructing the jury that the testimony regarding an alleged ACS meeting during the construction of O'Donnell Park was not to be considered for the truth of the matter asserted.

         ¶45 The testimony at issue relates to a discussion that Robert Hanson, an expert with the architectural and engineering firm of Fischer-Fischer-Theis, Inc., claims to have had with Allen Francois, an employee of INSPEC, Inc. Hanson was hired after the accident by Dietz, the firm that designed the concrete panels at O'Donnell Park, to inspect Panel 56AL and observe the removal of the remaining panels. INSPEC, Inc., an architectural and engineering firm, was hired by Milwaukee County after the accident to perform a forensic investigation into how and why Panel 56AL had fallen.

         ¶46 Hanson, who was named as a witness for ACS, claimed that Francois had told him in March 2011 about a meeting that allegedly had occurred sometime in 1990 during the construction of O'Donnell Park. At this alleged meeting, changes relating to the installation method that was ultimately employed for Panel 56AL were purportedly discussed among the parties involved in the construction of O'Donnell Park. Hanson further stated that Francois had told him that there was no record of that meeting.

         ¶47 Neither Hanson nor Francois claimed to have attended the alleged meeting in 1990. In fact, not only was there no record of the alleged meeting, there were no witnesses who had personal knowledge of any such meeting.

         ¶48 The Plaintiffs objected to Hanson's testimony on hearsay grounds. In contrast, ACS contended that because Francois was an agent of Milwaukee County at the time of the conversation in 2011, it was an admission by a party opponent, and therefore not hearsay, pursuant to WIS. STAT. § 908.0l(4)(b)4. The trial court agreed with ACS, but was nevertheless still concerned about the trustworthiness of the testimony: the source of Francois's knowledge about the alleged meeting did not involve personal knowledge, since ...


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