2020 WI App 9

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2019AP289

Complete Title of Case: 

JACQUELINE NOOYEN, INDIVIDUALLY AND AS SPECIAL 

ADMINISTRATOR OF THE ESTATE OF NORBERT NOOYEN,

 PLAINTIFF-APPELLANT,

 V.

WISCONSIN ELECTRIC POWER COMPANY, MADISON GAS AND 

ELECTRIC CO., WISCONSIN POWER & LIGHT COMPANY AND 

WISCONSIN PUBLIC SERVICE CORPORATION,

 DEFENDANTS-RESPONDENTS.

Opinion Filed: January 22, 2020

Submitted on Briefs: December 10, 2019

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Seidl, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs

of Robert G. McCoy of Cascino Vaughn Law Offices, Chicago, Illinois. 

Respondent

ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on the 

brief of James A. Niquet, Travis J. Rhoades and William E. Keeler, III, of

Crivello Carlson S.C., Milwaukee. 
2020 WI App 9

COURT OF APPEALS

DECISION

DATED AND FILED

January 22, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP289 Cir. Ct. No. 2017CV1107

STATE OF WISCONSIN IN COURT OF APPEALS

JACQUELINE NOOYEN, INDIVIDUALLY AND AS SPECIAL 

ADMINISTRATOR OF THE ESTATE OF NORBERT NOOYEN,

 PLAINTIFF-APPELLANT,

 V.

WISCONSIN ELECTRIC POWER COMPANY, MADISON GAS AND

ELECTRIC CO., WISCONSIN POWER & LIGHT COMPANY AND

WISCONSIN PUBLIC SERVICE CORPORATION,

 DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Brown County: 

WILLIAM M. ATKINSON, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ. 

¶1 STARK, P.J. Jacqueline Nooyen, individually and as special 

administrator of the Estate of Norbert Nooyen, appeals a grant of summary 
No. 2019AP289

2

judgment that dismissed her claims against Wisconsin Electric Power Company, 

Madison Gas and Electric Company, Wisconsin Power & Light Company, and 

Wisconsin Public Service Corporation (collectively, “the Utilities”) for violations 

of the safe place statute, WIS. STAT. § 101.11 (2015-16).1 Jacqueline claims that 

her husband, Norbert, developed mesothelioma as a result of being exposed to 

airborne asbestos between 1970 and 1973 during the construction of two power 

plants that were owned by the Utilities.

¶2 The circuit court granted the Utilities summary judgment, 

concluding Jacqueline’s claims were barred by WIS. STAT. § 893.89, the ten-year 

statute of repose for injuries resulting from improvements to real property 

(hereinafter, “the construction statute of repose”).2 We agree with that conclusion. 

The undisputed facts establish that Norbert’s injuries were the result of a structural 

defect, rather than an unsafe condition associated with the structure. Accordingly, 

under Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 

N.W.2d 598, the construction statute of repose bars Jacqueline’s claims. We reject 

Jacqueline’s argument that applying the construction statute of repose in this case 

improperly bars her claims retroactively, and we also reject her assertion that 

applying the statute here violates her constitutional right to a remedy. We 

therefore affirm.

 

1

 All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise 

noted.

2

 WISCONSIN STAT. § 893.89 was amended in 2018 to shorten the exposure period from 

ten to seven years. See 2017 Wis. Act 235, § 27. Norbert was diagnosed with mesothelioma in 

December 2016, and the instant lawsuit was filed in February 2017. It is undisputed that, under 

these circumstances, the applicable version of § 893.89 is the 2015-16 version containing the 

ten-year exposure period.
No. 2019AP289

3

BACKGROUND

¶3 The following facts are undisputed, for purposes of this appeal. 

Norbert was a career pipefitter. In that capacity, he was involved in the original 

construction of two nuclear power plants: the Point Beach Nuclear Power Plant 

and the Kewaunee Power Station.

¶4 Norbert was employed by construction contractor Bechtel 

Corporation at the Point Beach plant for approximately two years, beginning in 

October or November 1970. The Point Beach plant was owned by a subsidiary of 

Wisconsin Electric Power Company. Norbert was employed by contractor 

Phillips Getschow at the Kewaunee plant from 1971 to 1973. The Kewaunee plant 

was jointly owned by Madison Gas and Electric Company, Wisconsin Power & 

Light Company, and Wisconsin Public Service Corporation.

¶5 On December 2, 2016, Norbert was diagnosed with mesothelioma. 

On February 10, 2017, the Nooyens filed a complaint in the Milwaukee County 

Circuit Court, alleging that Norbert’s mesothelioma was caused by his exposure to 

airborne asbestos fibers during the time he worked at the Point Beach and 

Kewaunee plants. The Nooyens’ complaint also alleged the Utilities were aware 

that airborne asbestos was present during the construction of the Point Beach and 

Kewaunee plants and “knew or should have known of the health hazards of

asbestos.” The Nooyens therefore asserted that the Utilities had violated their duty 

to Norbert under the safe place statute by: failing to adequately warn him of the 

dangers of asbestos exposure; failing to adequately instruct him about safety 

precautions for asbestos exposure; failing to establish adequate safety measures to 

protect him from asbestos exposure; failing to adequately test for asbestos; 

employing contractors that failed to take reasonable precautions against the danger 
No. 2019AP289

4

posed by asbestos; allowing the use of products containing asbestos; and failing to 

assign or hire personnel qualified to recognize, evaluate, and control asbestos 

exposure.

¶6 Venue for the Nooyens’ lawsuit was subsequently transferred to 

Brown County, on the Utilities’ motion. Norbert died from mesothelioma on 

July 19, 2018. In October 2018, the Utilities moved for summary judgment, 

arguing the Nooyens’ safe place claims were barred by the construction statute of 

repose. In December 2018, the circuit court issued a written decision granting the 

Utilities’ summary judgment motion.

¶7 Thereafter, the circuit court allowed Jacqueline to file an amended 

complaint substituting herself for Norbert as plaintiff in her capacity as special 

administrator of his estate. The court subsequently entered a final judgment 

dismissing Jacqueline’s claims against the Utilities, and Jacqueline now appeals.

STANDARDS OF REVIEW

¶8 We independently review a grant of summary judgment, using the

same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6, 

306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “the 

pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.” WIS.

STAT. § 802.08(2).

¶9 Statutory interpretation and application also present questions of law 

for our independent review. See McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 

358, 731 N.W.2d 273. In addition, we independently review the issue of whether 
No. 2019AP289

5

a statute may be applied retroactively to a particular set of facts. Overlook Farms 

Home Ass’n, Inc. v. Alternative Living Servs., 143 Wis. 2d 485, 492, 422 N.W.2d 

131 (Ct. App. 1988). Finally, whether a statute violates a party’s constitutional 

right to a remedy is a question of law that we review independently. Schwittay v. 

Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶14, 246 Wis. 2d 385, 630 

N.W.2d 772.

DISCUSSION

I. Application of the construction statute of repose

¶10 Determining whether the construction statute of repose bars 

Jacqueline’s claims requires us to analyze the interplay between that statute and 

the safe place statute. The safe place statute “is a negligence statute that imposes a 

heightened duty on employers and owners of places of employment and public 

buildings to construct, repair, or maintain buildings safely.” Mair, 291 Wis. 2d 

132, ¶19. The statute provides, in relevant part:

Every employer shall furnish employment which shall be 

safe for the employees therein and shall furnish a place of 

employment which shall be safe for employees therein and 

for frequenters thereof and shall furnish and use safety 

devices and safeguards, and shall adopt and use methods 

and processes reasonably adequate to render such 

employment and places of employment safe, and shall do 

every other thing reasonably necessary to protect the life, 

health, safety, and welfare of such employees and 

frequenters. Every employer and every owner of a place of 

employment or a public building now or hereafter 

constructed shall so construct, repair or maintain such place 

of employment or public building as to render the same 

safe.

WIS. STAT. § 101.11(1).
No. 2019AP289

6

¶11 The circuit court determined Jacqueline’s safe place claims were 

barred by the construction statute of repose, WIS. STAT. § 893.89. The 

construction statute of repose sets forth “the time period during which an action 

for injury resulting from improvements to real property must be brought.”3 Kohn 

v. Darlington Cmty. Sch., 2005 WI 99, ¶13, 283 Wis. 2d 1, 698 N.W.2d 794. As 

relevant here, the statute provides that

no cause of action may accrue and no action may be 

commenced ... against the owner or occupier of the 

property or against any person involved in the improvement 

to real property after the end of the exposure period, to 

recover damages ... for any injury to the person, or for 

wrongful death, arising out of any deficiency or defect in 

the design, land surveying, planning, supervision or 

observation of construction of, the construction of, or the 

furnishing of materials for, the improvement to real 

property.

Sec. 893.89(2). “Exposure period” means “the 10 years immediately following 

the date of substantial completion of the improvement to real property.” Sec. 

893.89(1).

¶12 Our supreme court addressed the interplay between the safe place 

statute and the construction statute of repose in Mair. Based on a “plain reading 

of the statute,” the court held that the construction statute of repose “bars safe 

place claims resulting from injuries caused by structural defects, but not by unsafe 

conditions associated with the structure, beginning ten years after a structure is 

substantially completed.” Mair, 291 Wis. 2d 132, ¶29. In this case, it is 

undisputed that Jacqueline’s safe place claims against the Utilities were filed more 

 

3

 The parties have stipulated that the Kewaunee and Point Beach power plants are 

improvements to real property, as that term is used in WIS. STAT. § 893.89.
No. 2019AP289

7

than ten years after both the Kewaunee and Point Beach power plants were 

substantially completed. Thus, the 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.4

¶13 A structural defect is “a hazardous condition inherent in the structure 

by reason of its design or construction.” Id., ¶22 (quoting Barry v. Employers 

Mut. Cas. Co., 2001 WI 101, ¶28, 245 Wis. 2d 560, 630 N.W.2d 517). It arises 

from a breach of the duty to construct a safe building. Id. Stated differently, “[a]

defect is structural if it arises ‘by reason of the materials used in construction or 

from improper layout or construction.’” Barry, 245 Wis. 2d 560, ¶28 (citation 

omitted).

 

4

 The Utilities argue the “plain language” of the construction statute of repose “protects 

[them] from [Jacqueline’s] claims” regardless of whether those claims arose from an injury 

caused by a structural defect or an unsafe condition associated with the structure. In support of 

this assertion, they cite Kohn v. Darlington Community Schools, 2005 WI 99, ¶71, 283 Wis. 2d 

1, 698 N.W.2d 794, in which our supreme court stated “the purpose of the [construction statute of 

repose] is to protect individuals from liability based upon the actions that occur during their 

involvement in improving the property.” The Utilities argue that because they were involved in 

improving the Kewaunee and Point Beach power plants, the construction statute of repose 

necessarily protects them “from claims for injury based on their actions during those construction 

projects.”

The Utilities’ argument in this regard ignores Mair v. Trollhaugen Ski Resort, 2006 WI 

61, 291 Wis. 2d 132, 715 N.W.2d 598, which our supreme court issued after Kohn. As discussed 

above, the Mair court expressly addressed the interplay between the construction statute of repose 

and the safe place statute, and it held that the statute of repose bars safe place claims arising from 

injuries caused by structural defects, but not by unsafe conditions associated with the structure. 

Mair, 291 Wis. 2d 132, ¶29. We are not free to disregard that holding. See Cook v. Cook, 208 

Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Moreover, unlike Mair, Kohn did not address the 

application of the construction statute of repose to a claim brought under the safe place statute. 

We therefore use the Mair analysis to determine whether the construction statute of repose bars 

Jacqueline’s safe place claims.
No. 2019AP289

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¶14 An unsafe condition associated with the structure, in turn, arises 

from “the failure to keep an originally safe structure in proper repair or properly 

maintained.” Id., ¶27. Such conditions arise from “a breach of the statutory duty 

to repair or maintain the property and generally involve the structure falling into 

disrepair or not being maintained in a safe manner.” Mair, 291 Wis. 2d 132, ¶23.

¶15 The undisputed facts of this case establish that Jacqueline’s safe 

place claims are the result of an injury caused by a structural defect, rather than an 

unsafe condition associated with the structure. For purposes of the Utilities’ 

summary judgment motion, the parties stipulated that Norbert’s alleged exposure 

to airborne asbestos occurred during the original construction of the Kewaunee 

and Point Beach power plants. Specifically, Jacqueline contends that during the 

original construction of the power plants, “asbestos fibers were released during 

normal installation practices which required cutting and handling of thermal 

insulation materials.” 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.

¶16 These undisputed facts establish that Norbert’s injury arose “by 

reason of the materials used in construction or from improper ... construction.” 

See Barry, 245 Wis. 2d 560, ¶28 (citation omitted). In other words, the presence 

of airborne asbestos during the original construction of the power plants was “a 

hazardous condition inherent in [those structures] by reason of [their] design or 

construction.” See id. Norbert’s injury was not caused by “the failure to keep an 
No. 2019AP289

9

originally safe structure in proper repair or properly maintained.” See id., ¶27. 

Jacqueline’s safe place claims are therefore based on an injury caused by a 

structural defect, rather than an unsafe condition associated with the structure.5

¶17 Jacqueline contends this court previously held in Viola v. Wisconsin 

Electric Power Co., 2014 WI App 5, 352 Wis. 2d 541, 842 N.W.2d 515 (2013), 

and Calewarts v. CR Meyer & Sons Co., No. 2011AP1414, unpublished slip op. 

(July 3, 2012), that “airborne asbestos” is an unsafe condition associated with the 

structure. However, Viola and Calewarts are distinguishable because in both of 

those cases the plaintiffs were exposed to airborne asbestos as a result of repair or 

maintenance work on pipes covered with asbestos insulation. Viola, 352 Wis. 2d 

541, ¶25; Calewarts, No. 2011AP1414, ¶¶5-7. Stated differently, in Viola and 

Calewarts, it was the “regular maintenance and/or repair of the premises” after 

their construction that caused asbestos insulation to be disturbed and therefore 

created the unsafe conditions that caused the plaintiffs’ injuries. See Viola, 532 

Wis. 2d 541, ¶21. As discussed above, Jacqueline alleges that Norbert was 

exposed to airborne asbestos during the original construction of the Kewaunee and 

Point Beach power plants, rather than during any subsequent repair or 

maintenance work on those structures. The construction statute of repose bars her 

claims under these circumstances.

 

5

 In her reply brief, Jacqueline argues Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 

17, 284 N.W.2d 692 (Ct. App. 1979), aff’d, 100 Wis. 2d 120, 301 N.W.2d 201 (1981), stands for 

the proposition that the safe place statute “covers unsafe workplace conditions which exist during 

original construction of a building.” However, Dykstra did not involve the application of the 

construction statute of repose and did not analyze whether the alleged injury was caused by a 

structural defect or by an unsafe condition associated with the structure. Jacqueline’s reliance on 

Dykstra is therefore misplaced. 
No. 2019AP289

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¶18 In the alternative, Jacqueline argues the construction statute of 

repose does not bar her claims because the “maintenance” exception in WIS. STAT.

§ 893.89(4)(c) is applicable. That exception provides that the construction statute 

of repose “does not apply to ... [a]n owner or occupier of real property for 

damages resulting from negligence in the maintenance, operation or inspection of 

an improvement to real property.” Sec. 893.89(4)(c). Jacqueline suggests this

exception applies because the Utilities failed to “maintain a safe workplace” 

during the original construction of the power plants.

¶19 Jacqueline’s argument regarding the maintenance exception is 

contrary to the plain language of the statute, which limits the exception to actions 

“for damages resulting from negligence in the maintenance ... of an improvement 

to real property.” Id. (emphasis added). By its plain language, the maintenance 

exception applies when damages occur as the result of an owner or occupier’s 

failure to maintain the improvement itself, not when the owner or occupier has 

failed to maintain a safe workplace. As discussed above, Jacqueline’s safe place 

claims are not premised on any allegation that the Utilities negligently maintained 

the Kewaunee and Point Beach power plants; rather, she alleges negligence in the 

original construction of those structures. The maintenance exception is therefore 

inapplicable.6

 

6

 In Mair, our supreme court noted that “a failure to ‘maintain’”—as that term is used in 

WIS. STAT. § 893.89(4)(c)—“correlates to an unsafe condition associated with the structure.” 

Mair, 291 Wis. 2d 132, ¶29. Thus, our conclusion that the “maintenance” exception does not 

apply in this case is consistent with our conclusion that Norbert’s injury was not caused by an 

unsafe condition associated with the structure. 
No. 2019AP289

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¶20 Jacqueline also argues the construction statute of repose should not 

be interpreted to bar her safe place claims because the legislature has recently 

“embraced a public policy to preserve rights of latent disease victims to recover 

until diagnosis.” In support of this assertion, she observes that the legislature 

enacted a new products liability statute in 2011 containing a fifteen-year statute of 

repose, but the legislature included an exception to that time limit for any action 

“based on a claim for damages caused by a latent disease.” See WIS. STAT.

§ 895.047; 2011 Wis. Act 2, § 31. The fact that the legislature has adopted a latent 

disease exception to the products liability statute of repose actually undercuts 

Jacqueline’s position, however, as the legislature has not amended the construction 

statute of repose to include a similar exception.

¶21 Ultimately, because the undisputed facts establish that Norbert’s 

injury was caused by a structural defect, rather than an unsafe condition associated 

with the structure, we agree with the circuit court that the construction statute of 

repose bars Jacqueline’s safe place claims. We therefore turn to Jacqueline’s 

alternative arguments that even if Norbert’s injury was caused by a structural 

defect, the court should not have granted summary judgment in favor of the 

Utilities.

II. Retroactivity

¶22 Jacqueline first contends that the construction statute of repose 

should not be applied in this case because doing so improperly bars her claims 

retroactively. She observes that during the time period in which Norbert was 

allegedly exposed to asbestos—i.e., 1970 to 1973—the construction statute of 

repose did not provide any protection for owners of improvements to real 

property. See WIS. STAT. § 893.155 (1973-74). She further observes that the 
No. 2019AP289

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construction statute of repose first provided protection for owners after it was 

repealed and recreated in 1994—over twenty years after Norbert’s exposure to 

asbestos occurred. See 1993 Wis. Act 309. She then asserts that the 1994 version 

of the statute “contains no retroactivity provision relating back to the date of the 

wrongful conduct,” and, as a result, we must presume that the statute was not 

intended to apply retroactively. See United States Fire Ins. Co. v. E. D. Wesley 

Co., 105 Wis. 2d 305, 319, 313 N.W.2d 833 (1982) (stating the “general rule in 

Wisconsin” is that legislation is presumptively prospective unless the statutory 

language clearly reveals an intent that the statute apply retroactively).

¶23 We reject Jacqueline’s argument because the undisputed facts show 

that the circuit court did not, in fact, retroactively apply the construction statute of 

repose to her claims. As this court has previously recognized, a plaintiff alleging 

that he or she developed mesothelioma as a result of exposure to asbestos does not 

have a legally cognizable claim until he or she is actually diagnosed. See Peter v. 

Sprinkmann Sons Corp., 2015 WI App 17, ¶14, 360 Wis. 2d 411, 860 N.W.2d 

308. Here, although Norbert was allegedly exposed to asbestos between 1970 and 

1973, he was not diagnosed with mesothelioma until 2016 and therefore did not 

have a “claim” against the Utilities until that time. Accordingly, the circuit court 

did not retroactively apply the 2015-16 version of the statute of repose to bar 

Jacqueline’s claims; instead, it applied the version of the statute that was in effect 

when those claims came into existence in 2016 at the time of Norbert’s diagnosis.

¶24 In addition, Jacqueline’s retroactivity argument ignores the plain 

language of WIS. STAT. § 893.89, which clearly shows that the legislature intended 

the statute to apply to claims—like hers—that arose after the statute was repealed 

and recreated in 1994. The statute expressly states: “Except as provided in 

sub. (4), this section applies to improvements to real property substantially 
No. 2019AP289

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completed before, on or after April 29, 1994.” Sec. 893.89(5). This language 

evinces a clear legislative intent that the statute should apply to improvements to 

real property—like the Kewaunee and Point Beach power plants—that were 

completed before April 29, 1994.

¶25 Subsection (4)(d), in turn, states that the statute “does not apply to 

... [d]amages that were sustained before April 29, 1994.” WIS. STAT.

§ 893.89(4)(d). We have previously held that the term “damages” in 

subsec. (4)(d) “means a legally cognizable claim for injuries or a compensable 

right to recover for injuries.” Peter, 360 Wis. 2d 411, ¶14. The term does not 

mean a “physical injury,” such as the “inhalation of asbestos fibers during 

exposure.” Id., ¶¶12, 15. We therefore concluded in Peter that the exception in 

subsec. (4)(d) did not apply to the plaintiff’s claim because although the plaintiff’s 

father had been exposed to asbestos before April 29, 1994, there was no legally 

cognizable claim based on that injury until his father was diagnosed with 

mesothelioma in 2012. Id., ¶¶2, 14. Similarly, the exception does not apply in 

this case because although Norbert was exposed to asbestos between 1970 and 

1973, he did not have a legally cognizable claim until he was diagnosed with 

mesothelioma in 2016.

¶26 Accordingly, the plain language of WIS. STAT. § 893.89 confirms 

that the legislature intended the statute to apply to claims, like Jacqueline’s, where 

the exposure at issue took place during construction occurring before 1994, but the 

claim based upon that exposure arose after the statute was repealed and recreated 

in 1994. We therefore reject Jacqueline’s argument that the circuit court 

improperly applied the statute retroactively in order to bar her claims.
No. 2019AP289

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III. Constitutional right to a remedy

¶27 Jacqueline next argues that if the construction statute of repose bars 

her safe place claims, the statute is unconstitutional as applied to her because it 

violates her constitutional right to a remedy. She cites article I, section 9 of the 

Wisconsin Constitution, which provides:

Every person is entitled to a certain remedy in the laws for 

all injuries, or wrongs which he may receive in his person, 

property, or character; he ought to obtain justice freely, and 

without being obliged to purchase it, completely and 

without denial, promptly and without delay, conformably to 

the laws.

Jacqueline asserts the “certain remedy” required by article I, section 9 entitles her 

to a “day in court.” She argues that interpreting the construction statute of repose 

to bar her claims would deny a day in court both to her and to “all victims of the 

asbestos disease process due to the latency period for the disease exceeding the 10 

year [exposure] period.”

¶28 Jacqueline’s argument is foreclosed by our supreme court’s decision 

in Kohn. There, Lori Kohn was injured at a school sporting event in 

September 2000 when she fell through a gap in bleachers that had been 

constructed in 1969. Kohn, 283 Wis. 2d 1, ¶¶2-3. On appeal, our supreme court 

concluded the construction statute of repose barred the Kohns’ claims against 

ITW—the company that sold the bleachers to the school and supervised their 

construction. Id., ¶3 & n.1, ¶81.

¶29 In so doing, the court specifically rejected the Kohns’ claim that 

application of the construction statute of repose violated their constitutional right 

to a remedy. The court observed that article I, section 9 of the Wisconsin 

Constitution “confers no legal rights” and instead “applies only when a 
No. 2019AP289

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prospective litigant seeks a remedy for an already existing right.” Id., ¶37 

(emphasis and citations omitted). The court explained:

A statute of repose “limits the time period within which an 

action may be brought based on date of the act or 

omission.” A statute of repose may therefore bar an action 

before the injury is discovered or before the injury even 

occurs. “[B]y definition, a statute of repose cuts off a right 

of action regardless of the time of accrual.” As such, when 

the legislature enacts a statute of repose, it “expressly 

cho[o]se[s] not to recognize rights after the conclusion of 

the repose period[ ].” In other words, a statute of repose 

does not merely extinguish a party’s remedy, it 

extinguishes the right of recovery altogether. Therefore, 

statutes of repose do not violate the right to remedy 

provision of Article I, Section 9 because any right of 

recovery is extinguished at the end of the repose period and 

the right for which the litigant seeks a remedy no longer 

exists.

Id., ¶38 (citations omitted).

¶30 Applying the above analysis to the Kohns’ case, the supreme court 

noted that the bleachers were substantially completed in 1969, and the “repose 

period” for purposes of WIS. STAT. § 893.89 therefore ended in 1979. Kohn, 283 

Wis. 2d 1, ¶39. The court reasoned:

As such, as of 1979, the Kohns possessed no right of 

recovery against ITW. Therefore, because Article I, 

Section 9 guarantees a remedy only for existing rights, and 

the Kohns possessed no right of recovery when they 

brought their action against ITW, § 893.89 does not violate 

the constitutional guarantee in Article I, Section 9.

Kohn, 283 Wis. 2d 1, ¶39.

¶31 The same analysis is applicable here. In this case, Jacqueline did not 

have a claim against the Utilities until Norbert was diagnosed with mesothelioma 

in 2016. It is undisputed that at that point, the ten-year exposure period set forth in 

WIS. STAT. § 893.89 had long since elapsed. Thus, because article I, section 9 
No. 2019AP289

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guarantees a remedy only for existing rights, and because Jacqueline possessed no 

right of recovery at the time she commenced this lawsuit, applying § 893.89 to bar 

her claims does not violate her constitutional right to a remedy. It is immaterial 

that, because of mesothelioma’s long latency period, Norbert did not become 

aware of his injury until 2016. As the Kohn court observed, a statute of repose 

“may ... bar an action before the injury is discovered or before the injury even 

occurs.” Kohn, 283 Wis. 2d 1, ¶38. The legislature’s policy decision to bar 

claims under those circumstances does not violate a party’s constitutional right to 

a remedy. See id., ¶¶41-43.

By the Court.—Judgment affirmed.