FORTIER v. FLAMBEAU PLASTICS CO.

Nos. 89-0196, 89-0956.

164 Wis.2d 639 (1991)

476 N.W.2d 593

James R. FORTIER, and Holly W. Fortier, Individually and for their children, Leah Aimee Fortier, and Alais Noel Fortier, Charles F. Quandt, and Beverly A. Quandt, Individually and for their children, Vince A. Quandt, Brian V. Quandt, and Frederick C. Quandt, and Randall R. Ramsey, Plaintiffs, v. FLAMBEAU PLASTICS COMPANY a division of Flambeau Corporation, Defendant-Appellant, AMERICAN EXCESS INSURANCE COMPANY, and Highlands Insurance Group a/k/a Highlands Insurance Company, Defendants-Respondents, The CITY OF BARABOO, a Wisconsin municipal corporation, Defendant-Appellant, SAUK COUNTY, a body corporate, Sara Lee Corporation, a Maryland corporation, Teel Plastics Company, a Wisconsin corporation, and the following insurance corporations: The Aetna Casualty and Surety Company, Columbia Casualty Company, Continental Casualty, The Continental Insurance Company, Defendants, EMPLOYER'S INSURANCE OF WAUSAU, Defendant-Respondent, FIREMAN'S FUND/NATIONAL SURETY CORPORATION, Fireman's Fund of Wisconsin, Defendants, GENERAL CASUALTY INSURANCE COMPANY OF WISCONSIN, Hartford Insurance Group, Hawkeye Security Insurance Company, Defendants-Respondents, The HOME INSURANCE COMPANY, Integrity Insurance Company, Lloyd's of London, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Pacific Employers, Puritan Insurance Company, Travelers Companies a/k/a Travelers Indemnity Company, and Wausau Insurance Company, Defendants James R. FORTIER, and Holly W. Fortier, Individually and for their children, Leah Aimee and Alais Noel Fortier, Charles F. Quandt and Beverly A. Quandt, Individually and for their children, Vince A., Brian V. and Frederick C. Quandt, and Randall R. Ramsey, Plaintiffs-Appellants-Cross Respondents v. The CITY OF BARABOO, a Wisconsin municipal corporation, Sauk County, a body corporation, Defendants, FLAMBEAU PLASTICS COMPANY, a division of Flambeau Corporation, Sara Lee Corporation, a Maryland corporation, Defendants-Respondents-Cross Appellants, TEEL PLASTICS COMPANY, a Wisconsin corporation, Defendant, INDUSTRIAL COILS, a Wisconsin corporation, Defendant-Respondent-Cross Appellant, The AETNA CASUALTY & SURETY COMPANY, Defendant-Cross Respondent, AMERICAN EXCESS INSURANCE COMPANY, Continental Casualty, Employer's Insurance of Wausau, Defendants, FIREMAN'S FUND/NATIONAL SURETY CORPORATION, Fireman's Fund of Wisconsin, Defendants-Cross Respondents, GENERAL CASUALTY INSURANCE COMPANY OF WISCONSIN, Hartford Insurance Group, Hawkeye Security Insurance Company, Highlands Insurance Group, a/k/a Highlands Insurance Company, Integrity Insurance Company, Travelers Companies, a/k/a Travelers Indemnity Company, Wausau Insurance Company, Defendants.

Court of Appeals of Wisconsin.

Decided September 19, 1991.


Attorney(s) appearing for the Case

For the plaintiffs-appellants the cause was submitted on the briefs of Raymond M. Roder and Debra A. Anken-Dyer of Whyte & Hirschboeck, S.C. of Madison. Oral argument by Raymond M. Roder.

For the defendant-appellant, City of Baraboo, the cause was submitted on the briefs of James C. Bohl, of Quale, Hartman, Bohl, Stevens & Reynolds, S.C. of Baraboo.

For the defendant-appellant and defendant-respondent-cross appellant, Flambeau Corporation, the cause was submitted on the briefs of Clyde C. Cross and Jerome P. Mercer of Cross, Jenks, Mercer and Maffei, Baraboo. Oral argument by Clyde C. Cross.

For the defendants-respondents, American Excess Insurance Company and Highlands Insurance Group a/k/a Highlands Insurance Company, the cause was submitted on the briefs of H. Robert Kilkelly, Jeffrey W. Younger, and Paul W. Schwarzenbart of Lee, Kilkelly, Paulson & Kabaker, S.C. of Madison.

For the defendant-respondent, General Casualty Insurance Company of Wisconsin, the cause was submitted on the briefs of Barrett J. Corneille, of Bell, Metzner, Gierhart & Moore, S.C., of Madison.

For the defendant-respondent, Employers Insurance of Wausau, the cause was submitted on the briefs of Paul L. Gingras and Susan Hurt of Zelle & Larson of Minneapolis, Minnesota, and of Richard B. Allyn of Robins, Kaplan, Miller & Ciresi of Minneapolis, Minnesota, and of James Gerlach of Larowe, Gerlach, Chiquoine & Kahler of Reedsburg.

For the defendant-respondent, Hartford Insurance Group, the cause was submitted on the briefs of James C. Alexander of Sauthoff & Alexander of Madison.

For the defendant-respondent, Hawkeye Security, the cause was submitted on the briefs of C. Michael Hausman and D. Sean O' Lochlayne of Slattery & Hausman, Ltd. of Milwaukee.

For the defendants-cross respondents, Fireman's Fund/National Surety Corporation and Fireman's Fund of Wisconsin, the cause was submitted on the briefs of Daniel P. Golden of Anderson, Shannon, O'Brief, Rice & Bertz of Plover, and of William M. Savino, Daniel A. Bartoldus and Lawrence A. Levy of Rivkin, Radler, Dunne & Bayh, Uniondale, New York.

For the defendants-cross respondents, The Aetna Casualty and Surety Company, the cause was submitted on the briefs of A. Reid Shaw and John C. Goodnow of Oppenheimer, Wolff & Donnelly of Minneapolis, Minnesota. Oral argument by John C. Goodnow.

For the defendants-respondents-cross appellants, Sara Lee Corporation, the cause was submitted on the briefs of Frank J. Daily and Jeffrey Morris of Quarles & Brady of Milwaukee. Oral argument by Jeffrey Morris.

For the defendants-respondents-cross appellants, Industrial Coils, the cause was submitted on the briefs of Rocke A. Calvelli and Gerald R. Harmon of Quale, Felbruegge, Calvelli, Thom & Croke of Milwaukee. Oral argument by Gerald R. Harmon.

For the Wisconsin Insurance Alliance and Insurance Environmental Litigation Association, the cause was submitted on the briefs of Robert C. Burrell of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee, and of Thomas W. Brunner, Marilyn E. Kerst, John W. Cavilia of Wiley Rein & Fielding of Washington, D.C.

For the Wisconsin Public Intervenor, Chemical Manufacturers Association, Wisconsin Paper Council, Wisconsin Academy of Trial Lawyers, Wisconsin's Environmental Decade, the cause was submitted on the briefs of Gregory B. Conway of Liebman, Conway, Olejniczak & Jerry, S.C. of Green Bay, and of Thomas J. Dawson, State of Wisconsin Public Intervenor, Madison, and of Eugene R. Anderson, Thomas H. Sear, Thomas G. Rozinski of Anderson Kill Olick & Oshinsky, P.C. of New York, New York.

Before Eich, C.J., Gartzke, P.J., and Dykman, J.


GARTZKE, P.J.

The Fortiers, the Quandts and Ramsey appeal from a judgment dismissing their complaint against Flambeau Plastics Co., Sara Lee Corp., and Industrial Coils. The plaintiffs claim that the three companies deposited toxic chemicals in the City of Baraboo's landfill and that the chemicals seeped or leached from it to the plaintiffs' nearby properties, contaminating their residential water wells and causing them...

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