Feb. 4, 2020 – The estate of a career pipefitter who died from mesothelioma recently lost an appeal on claims that asbestos exposure caused his cancer and the exposure, in the course of his employment, violated the state’s safe place statute.

Norbert Nooyen worked for contractors involved in the construction of utility-owned nuclear power plants north of Sheboygan in the 1970s.

The power plants were jointly owned, in some form, by Madison Gas and Electric, Wisconsin Power & Light, and the Wisconsin Public Service Corporation.

In 2016, Nooyen was diagnosed with mesothelioma. In 2017, he filed a lawsuit against the utility companies. In 2018, the case pending, Nooyen died from the disease. The lawsuit continued under Nooyen’s estate, through administrator Jacqueline Nooyen.

The complaint alleged that Nooyen’s mesothelioma was caused by exposure to airborne asbestos fibers released while working in the power plants, and the power plant owners knew or should have known of the hazards of asbestos.

Specifically, the complaint alleged a violation of Wisconsin’s safe place statute, Wis. Stat. section 101.11(1), causing damages. The safe place statute requires employers “to furnish a place of employment which shall be safe for employees.”

The power plants, the complaint alleged, had a duty to warn Nooyen of the dangers of asbestos exposure and to establish safety protocols, among other duties.

But the defendant companies argued that Nooyen’s complaint was barred by the state’s construction statute of repose, section 893.89(2015-16), which barred causes of action against entities or persons “involved in the improvement to real property” after 10 years immediately following the date of substantial completion of the improvement. (Note: In 2018, enacted legislation shortened the exposure period from 10 to seven years).

The Brown County Circuit Court agreed with the defendants and dismissed the case. In Nooyen v. Wisconsin Electric Power Company, 2019AP289 (Jan. 22, 2020), a three-judge panel for the District III Court of Appeals affirmed the circuit court decision.

The panel rejected the estate’s claim that the statute of repose improperly barred the claim and applying the statute violated the estate’s constitutional right to a remedy.

There was no dispute that Nooyen’s claim was filed well beyond the statute of repose’s applicable “exposure period” of 10 years. But the panel examined whether the statute of repose applies, based on the source of the injuries alleged.

“[T]he crucial inquiry for purposes of determining whether the construction statute of repose applies is whether the safe place claims resulted from an injury caused by a structural defect or by an unsafe condition associated with the structure,” wrote Judge Lisa Stark, concluding the asserted injuries were caused by a structural defect.

“Jacqueline does not allege that the asbestos was properly installed but then became unsafe over time because it was not appropriately repaired or maintained. Instead, it is the original construction process that she contends caused Norbert’s injury.”

The panel explained that Nooyen’s alleged exposure to asbestos fibers, released through installation, occurred during the original construction of the power plants. The panel distinguished cases in which asbestos fibers were released during maintenance.

The estate argued that the version of the statute of repose in existence in the 1970s, when the alleged injuries occurred, did not provide the same protections to real property owners and thus applying the statute here was an improper retroactive application.

The panel noted that Nooyen did not have a cognizable claim until 2016, when he was diagnosed, and the circuit court properly applied the statute in existence at that time.

Finally, the panel rejected the estate’s claim that the statute of repose unconstitutionally bars the estate’s right to a remedy under the Wisconsin Constitution (art. 1, section 9), noting that provision only applies to remedies “for an already existing right.”

The panel, noting a prior state supreme court decision, concluded that “applying § 893.89 to bar her claims does not violate her constitutional right to a remedy” because “Jacqueline possessed no right of recovery at the time she commenced this lawsuit.”