Secura Insurance, A Mutual Company, Intervening Plaintiff-Respondent,
Super Products LLC, Defendant-Third-Party Plaintiff-Appellant, Wisconsin Utility Exposure, Inc., Involuntary-Plaintiff-Respondent, ABC Insurance Company, Defendant,
ABC Insurance Company and Paccar, Inc. d/b/a Peterbilt Motors Company, Third-Party Defendants.
from a judgment of the circuit court for Waukesha County,
Cir. Ct. No. 2015CV2286 KATHRYN W. FOSTER, Judge.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
This case involves the application of the economic loss
doctrine to a negligence claim brought against Super Products
LLC. Secura Insurance, a Mutual Company, seeks recovery for
damages arising from an allegedly defective product sold by
Super Products to Secura's insured pursuant to a
contract. Because the circuit court erred in determining that
the economic loss doctrine did not bar the negligence claim,
we reverse and remand for further proceedings.
Wisconsin Utility Exposure, Inc. (WUE), purchased an
excavator called a Mud Dog from Super Products pursuant to a
contract with a limited warranty. The Mud Dog was comprised
of a truck chassis and cab on which Super Products installed
the Mud Dog heavy excavation equipment. The Mud Dog was the
source of a fire that damaged the Mud Dog.
WUE was compensated by Secura for property damage it
sustained in the fire. Secura then filed suit against Super
Products, asserting a claim for negligence, and seeking
recovery for the payments to WUE. Secura alleged that Super
Products was negligent in its design of and modifications to
the Mud Dog.
Secura sought three categories of damages based on its
payments to WUE.
First, a variety of items, including stepladders, a trash
can, a wheelbarrow, boots, hoses, tools, and other equipment
stored in or around the Mud Dog were physically injured
(other property). Super Products concedes Secura's
negligence claim is available under the economic loss
doctrine's "other property" exception for the
physical injury to the other property.
Second, Secura seeks damages for the total loss of the Mud
Third, expenses were incurred to clean up the Mud Dog and
debris from the Mud Dog. The invoice for the cleanup
identifies services for "Removal, Analytical, Profiling,
Transportation and Disposal of Liquid Wastes Generated from
Hydro Excavator Involved in a Fire." The detail includes
vacuums, roll off boxes and trucks, drums, disposal of water,
and waste analysis and disposal.
In October 2016, Super Products moved for partial summary
judgment contending that the economic loss doctrine precluded
recovery in tort for damage to the product and the clean-up
In response, Secura conceded that the damage to the product
and the clean-up costs would ordinarily be subject to the
economic loss doctrine's bar, but argued that because
there was physical injury to other property (stepladders,
etc.), the economic loss doctrine did not apply. The circuit
court agreed with Secura holding that, when there is damage
to both the product and other property the economic loss
doctrine permits a negligence claim seeking recovery for
both, despite the parties' contractual remedies.
The parties entered into a Consent Judgment in which they
agreed to settle for a certain amount in the event Super
Product's challenge to the circuit ...