Wisconsin Office Extends Winning Streak

April 25, 2019 / News

In three recent cases, the Wisconsin office has added to its string of success in obtaining summary judgment on behalf of our clients.  First, Canyon Partners Real Estate, LLC v. Newbanks/Washington Construction Consulting Services, Inc. (E.D. MI), involved a $60 million mixed use real estate development project in Ann Arbor, Michigan.  Plaintiff was the lender on the project and hired Newbanks to serve as a construction consultant.  In that role, Newbanks was to provide, among other things, monthly progress draw and review reports, observations as to construction progress and recommendations regarding pay applications from the project’s general contractor.  Plaintiff filed suit against Newbanks alleging negligence, negligent misrepresentation and breach of contract.  On a Motion to Dismiss, Newbanks argued that, because the parties entered into a contract for the services to be provided by Newbanks, the tort based claims were barred by the Economic Loss Doctrine.  The motion was granted, leaving only the breach of contract count.  Following discovery, Newbanks filed a Motion for Summary Judgment, arguing that a consequential damages waiver and a limitation of liability provision in the contract precluded Plaintiff from any recovery.  In response, Plaintiff sought to cast its damages as direct damages that were not subject to the waiver. Plaintiff also argued that the liability limitation provision in the contract created an ambiguity that precluded summary judgment.  The court rejected both arguments. In doing so, the court found that the damages sought by Plaintiff were not based on the value of the services to be provided pursuant to the contract. Rather, the damages sought were for losses alleged to have been suffered as a result of Newbanks’ breach of the contract. As such, the alleged damages were consequential in nature. Accordingly, the Court found that Plaintiff was not entitled to any recovery and granted summary judgment. 

The next successful motion for summary judgment was made in Holcombe v. American Asphalt of Wisconsin (Clark County, WI). Holcombe involved the design and construction of a portion of Highway 73 in Neillsville, Wisconsin.   The Wisconsin Department of Transportation (“WDOT”) hired American Asphalt to construct the involved stretch of highway.  American Asphalt resurfaced the northbound lane of Highway 73 on September 19, 2017. Plaintiff alleged that, at approximately 3:00 a.m. on September 20, 2017, as he was travelling north on Highway 73, his vehicle left the roadway and encountered the gravel shoulder adjacent to the paved surface. He responded by steering to the left in an attempt to get the vehicle back on the roadway. His vehicle returned to the roadway, crossed both lanes of traffic, left the roadway again and entered a cornfield where the vehicle rolled over numerous times. Plaintiff alleged that he lost control of his vehicle because, as a result of American Asphalt’s paving operations, there was a dangerous change in elevation between the paved roadway and the gravel shoulder. In addition, Plaintiff alleged that American Asphalt had failed to adequately warn motorists of the shoulder drop-off condition.  Plaintiff suffered serious injuries, including a fractured neck.  American Asphalt performed the project pursuant to a contract and project specifications issued by WDOT.  The specifications provided that a change in elevation between a paved surface and an adjacent shoulder must be eliminated within forty-eight hours of the end of a day’s paving operations. American Asphalt “pulled up” the shoulder adjacent to the northbound lane of Highway 73 (thereby eliminating the change in elevation) at approximately noon on September 20, 2017. The specifications did not require signs warning of a change in elevation between the paved road surface and adjacent shoulders. American Asphalt moved for summary judgment, arguing that, because it had performed the project and constructed the roadway in accordance with precise specifications issued by WDOT, it was entitled to governmental immunity under Wis. Stat. §893.80(4).  Immunity under Wis. Stat. §893.80(4) extends to private contractors acting as agents of a governmental entity. A contractor asserting immunity must establish that it adhered to reasonably precise specifications issued by the governmental entity and that, in issuing the reasonably precise specifications, the governmental entity was exercising its legislative, quasi-legislative, judicial or quasi-judicial function. Following extensive briefing on the motion, the Court granted summary judgment to American Asphalt, finding that it had performed the project pursuant to reasonably precise specifications issued by a government entity during the exercise of its quasi-legislative, judicial or quasi-judicial function. Accordingly, the Court found that American Asphalt was entitled to immunity under Wisconsin Statute §893.80(4) and granted summary judgment. 

Finally, summary judgment was granted in Schroeder v. Fahrner Asphalt Sealers, LLC, (Rock County, WI). Schroeder involved a motorcycle accident in which Plaintiff lost control of his motorcycle while riding through a construction zone where loose aggregate material had recently been placed on the roadway.  A few days prior to the accident, Fahrner Asphalt Sealers, LLC (“Fahrner”) had begun a procedure, known as a chip seal, to re-surface the involved roadway.  In a chip seal, a layer of hot asphalt is applied to the existing roadway. Next, aggregate material is spread on top of the hot asphalt. Once the aggregate is applied, vehicles are allowed to travel the roadway. The vehicular traffic serves to compact the aggregate into the asphalt. After a period of several days, excess aggregate is swept off of the road surface. Fahrner had been selected by the Town of Fulton, Wisconsin to perform the chip seal process.  Fahrner performed the project pursuant to a contract and specifications issued by the Town of Fulton.  Plaintiff alleged that Fahrner had negligently performed its work because it failed to warn motorists of a loose gravel condition on the roadway.  Fahrner argued that “Loose Gravel” signs had been placed at points along the involved roadway and, in any event, the project specifications did not require Fahrner to place “Loose Gravel” signs.  Instead, Fahrner produced evidence that the Town of Fulton had requested that Fahrner not place the signs because it had arranged for the signs to be placed by the Rock County Public Works Department.  Fahrner argued that, regardless of whether the signs were placed or by whom, it was entitled to immunity pursuant to Wisconsin Statute §890(4).  Fahrner contended that it had performed the project pursuant to precise specifications issued by the Town of Fulton.  The specifications at issue dictated the type of resurfacing, the materials to be utilized and the equipment to be used in completing the work. Because it had followed precise specifications issued by the Town of Fulton, Fahrner argued, it was entitled to immunity under Wis. Stat. §893.80(4).  The Court found that, pursuant to the contract, Fahrner was not required to place “Loose Gravel” signs.  In any event, the Court held, Fahrner had performed its work on the project pursuant to precise specifications issued by a governmental entity and, accordingly, was entitled to immunity pursuant to Wis. Stat. §893.80(4).  As a result, the Court granted Fahrner’s Motion for Summary Judgment.

In each of these cases, the terms of the contracts that governed the projects were thoroughly analyzed by the court. Through extensive witness preparation and supporting affidavits, as well as deposition testimony from individuals familiar with the implementation of the projects at issue, we were able to utilize the contract terms to establish that summary judgment was warranted. 

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