from an order of the circuit court for Outagamie County: No.
2015CV1072 MARK J. MCGINNIS, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
Auto-Owners Insurance Company appeals an order denying its
motion for an injunction prohibiting the razing of Lowell and
Carol McLartys' home following a garage fire. While
unclear, it appears Auto-Owners argues the raze order in this
case was invalid because the relevant provisions of the raze
order statute, WIS . STAT . § 66.0413 (2015-16),
not authorize a building damaged as a result of a sudden fire
to be razed. Auto-Owners also argues the raze order was
unreasonable because the home could be repaired at a
reasonable cost, the raze order was issued as a result of the
insured's inquiry to the municipality, and the building
inspector did not personally inspect the premises before
issuing the raze order. Finally, Auto-Owners contends that
smoke and water damage remediation must be excluded when
calculating a building's "cost of repair." We
reject each of Auto-Owners' arguments, primarily because
they are unsupported by the statute's plan language and
evident purpose, and because they produce an absurd result.
Accordingly, we affirm.
On August 26, 2015, the McLartys' residence in Appleton
caught fire. It is undisputed the fire caused structural
damage to the attached garage. There was also non-structural
damage throughout the home, including water damage from the
fire suppression efforts and smoke damage. The property was
insured by Auto-Owners, with a policy limit of $287, 500. The
McLartys notified Auto-Owners of the fire the day after it
occurred. They did not live in the residence following the
The McLartys contacted a damage restoration company, ServPro,
which provided a quote in early October 2015 for "[fire
restoration] of garage/main floor/second story/ related to
the fire in garage." The estimate for such restoration
was approximately $130, 600. The following day, ServPro
contacted the McLartys with a revised estimate of
approximately $112, 850 for a reduced scope of work that
included "rebuild only[, ] not … cleaning &
demo & smoke sealing."
The City's inspection supervisor, Kurt Craanen, testified
that, as a matter of routine, he was notified of the fire the
day after it occurred. Craanen did not take any action based
on that report. However, after the McLartys received the
ServPro estimate, their attorney contacted Craanen and
notified him that the costs to repair the home were
considerably more than half the home's value. The
McLartys' attorney requested information regarding
whether the City would issue a raze order for the building,
as repairs appeared presumptively unreasonable under
Wis.Stat. § 66.0413(1)(c), given the cost of repairs as
compared to the home's value.
Craanen requested a copy of the ServPro estimate from the
McLartys' attorney. After reviewing the estimate, Craanen
reviewed property records showing the building's assessed
value was approximately $124, 000.Pursuant to the raze order
statute, Craanen concluded repairs were not reasonable. On
October 8, 2015, he issued an order requiring that the
McLartys' residence be razed within thirty days.
Auto-Owners received a copy of the raze order on October 14.
Auto-Owners objected to the raze order. Razing the home would
result in a total loss, requiring payment of the homeowner
policy limits pursuant to the valued policy law, Wis . Stat .
§ 632.05. At Auto-Owners' request, the City
stipulated to extend the time within which to raze the home,
allowing the McLartys until February 1, 2016. In the interim,
Auto-Owners commenced this action by filing a motion pursuant
to Wis.Stat. § 66.0413(1)(h) seeking a restraining order
prohibiting the razing of the McLartys' residence.
Auto-Owners asserted the raze order was unreasonable and
demanded it be allowed to repair the residence. Auto-Owners
also challenged Craanen's conclusion that repairs were
unreasonable, noting the ServPro estimate included
approximately $76, 500 in repairs for smoke remediation,
which amount Auto-Owners asserted was not to be considered
when calculating the cost of repair under the raze order
The circuit court held a temporary injunction hearing, at
which Craanen was the only witness to testify. Craanen
testified the City does not often issue raze orders, but he
estimated he had personally ordered three in the past for
fire damage, including one in August 2015. Craanen determined
the fire had rendered the McClartys' residence "out
of repair" under Wis.Stat. § 66.0413(1)(b)1., based
on the fact the home required at least $112, 000 in repairs
and needed to be brought up to code. Craanen did not visit
the McLartys' property until after he had issued the raze
order, nor did he independently verify that the McLartys'
repair estimate was correct.
The parties presented argument following Craanen's
testimony. Auto-Owners claimed the McLartys' home was not
"out of repair" because the statute only applies to
conditions persisting over a long period of time, and a
sudden fire does not qualify. Auto-Owners also challenged the
raze order as unreasonable and arbitrary, based on: (1)
Craanen's broadly defining "out of repair" as
meaning "out of code, " which in Auto-Owners'
view left too much discretion to the City; and (2)
Craanen's failure to independently inspect the property.
Auto-Owners also argued that smoke and water damage
remediation should not be considered in determining the
feasibility of repairs, and that the raze order statute
should not be interpreted "as a way [for an insured] to
obtain an insurance windfall." The City asserted that
the McLartys' home satisfied each of the statutory
criteria for the raze order to issue, and that the raze order
was not unreasonable or arbitrary.
The circuit court denied Auto-Owners' motion at a
subsequent hearing. The court specifically found Craanen
credible and that he had acted professionally and in good
faith when issuing the raze order. The court concluded that,
following the fire, the McLartys' residence was "out
of repair" under the raze order statute, and that the
home was rendered uninhabitable. The court also determined it
was unreasonable to repair the home given the estimated cost
of repairs compared to the home's value. Consequently,
the court concluded Auto-Owners had not satisfied its burden
of showing that the raze order was unreasonable, and it also
concluded that the City had not acted arbitrarily. The court
then entered a written order formally denying
Auto-Owners' motion. Auto-Owners now
As an initial matter, we note that any issues involving the
obligations of the McLartys and Auto-Owners pursuant to their
insurance policy are not before us. Rather, the parties to
this appeal are Auto-Owners and the City of Appleton, and the
issue is whether the City justifiably issued the raze order
in this case. Auto-Owners' arguments in that regard
primarily focus on interpreting the raze order statute,
Wis.Stat. § 66.0413.
Statutory interpretation presents a question of law, which we
review de novo. Seider v. O'Connell, 2000 WI 76,
¶26, 236 Wis.2d 211, 612 N.W.2d 659. We begin with the
statute's language; if that language yields a plain
meaning, we ordinarily stop the inquiry. State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis.2d 633, 681 N.W.2d 110. Language in a
statute is generally given its common, ordinary and accepted
meaning. Id. We interpret the language "in the
context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or
unreasonable results." Id., ¶46.
Wisconsin Stat. § 66.0413 governs a municipality's
authority to raze buildings within its
jurisdiction. Under the relevant subdivision here, a
governing body, building ...