WI Court of Appeals rules plaintiff can add new claims after remand.

Byline: David Ziemer

The Wisconsin Court of Appeals held on Dec. 13 that, where the Supreme Court dismissed a plaintiff's tort claims pursuant to the economic loss doctrine, the plaintiff must be allowed to amend his complaint to add contract claims.

On June 28, 2001, Steven C. Tietsworth filed a proposed nationwide class action against Harley-Davidson, Inc., alleging problems with the design, manufacture, and sale of a particular model of motorcycle.

Tietsworth's causes of action included: (1) a violation of sec. 100.18 (the "Deceptive Trade Practices Act" or "DTPA"); (2) negligence; (3) strict products liability; and (4) common-law fraudulent concealment. Tietsworth did not allege breach of contract or any warranty claims.

Harley-Davidson moved to dismiss the complaint on the basis that Tietsworth's claims were premature as they incurred no actual injury, either personal or economic. Harley-Davidson also argued that plaintiffs' tort claims were barred by the economic loss doctrine, and that the statutory fraud under sec. 100.18, and the common law fraudulent concealment claims should be dismissed for lack of particularity.

On Feb. 27, 2002, the trial court granted the motion to dismiss. Tietsworth appealed only the dismissal of its DTPA and the fraudulent concealment claims. The court of appeals reversed, and reinstated the actions. Tietsworth v. Harley-Davidson, Inc., 2003 WI App 75, 261 Wis. 2d 755, 661 N.W.2d 450.

The Supreme Court granted review, and reversed the court of appeals, holding that the economic loss doctrine bars the tort claims. The court wrote, "The plaintiffs may have contract remedies - breach of contract/warranty or rescission and restitution - but may not pursue a tort claim for misrepresentation premised on having purchased allegedly defective motorcycles."

Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, par. 37, 270 Wis. 2d 146, 677 N.W.2d 233.

Other than reversing the court of appeals, however, the Supreme Court gave no further instructions on remand.

Upon remittitur to the circuit court, Tietsworth moved the trial court to reopen the matter pursuant to sec. 808.08(3), and for leave to amend the complaint pursuant to sec. 802.09, in order to pursue contract and warranty remedies.

Milwaukee County Circuit Court Judge Michael D. Guolee denied the motion, and dismissed the complaint, holding that a trial court may not allow amendment of pleadings after the Supreme Court has affirmed a judgment dismissing a case...