reasoning that a decision from this court could not be upheld under stare decisis principles where the decision could not "be reconciled [with other Wisconsin precedent] without generating . . . arbitrary and illogical distinctions"
How later courts described this case
- reasoning that a decision from this court could not be upheld under stare decisis principles where the decision could not "be reconciled [with other Wisconsin precedent] without generating . . . arbitrary and illogical distinctions"
- explaining that departing from precedent is warranted when "changes or developments in the law have undermined the rationale behind a decision" and when "the precedent has become detrimental to coherence and consistency in the law"
- discussing that departure from stare decisis occurs when a "prior decision is unsound in principle" and "may turn on whether the prior case was correctly decided" (first citing State v. Outagamie Cty. Bd., 2001 WI 78, ¶30 , 244 Wis. 2d 613 , 628 N.W.2d 376 ; then citing Planned Parenthood of S.E. Pa v. Casey, 505 U.S. 833, 999 (1992)(Scalia, J., concurring in part and dissenting in part))
- stating that precedents should never be overruled “‘casually’” (quoting State v. Stevens, 181 Wis. 2d 410, 442 , 511 N.W.2d 591 (1994) (Abrahamson, J., concurring))
Written by the judges who cited it.
The opinion
N. PATRICK CROOKS, J.
¶ 124. (concurring). While I agree with the majority opinion, I write separately to- express my regret over the length of time it took for the difficulties presented by the Edgerton decision to be resolved.
¶ 125. Six years ago this court's decisions in General Cas. Co. of Wisconsin v. Hills, 209 Wis. 2d 167 , 561 N.W.2d 718 (1997), and Wisconsin PSC v. Heritage Mut. *137 Ins. Co., 209 Wis. 2d 160 , 561 N.W.2d 726 (1997), sought to limit the damage caused by the Edgerton decision, without explicitly overruling that case. See majority op., ¶ 17.
¶ 126. Our decisions in Hills and Heritage highlighted the proper focus courts should employ when determining cases like Johnson Controls. As correctly noted by the majority, the analysis should he on the interpretation of the insurance policy, and not on environmental law. See majority op., ¶ 31 n.16. The Hills opinion stated:
In general, the interpretation of an insurance contract is controlled by principles of contract construction. See, e.g., Kuhn v. Allstate Ins. Co., 193 Wis. 2d 50, 60 , 532 N.W.2d 124 (1995); Maas [v. Ziegler], 172 Wis. 2d 70, 79 , [ 492 N.W.2d 621 (1992)]. The primary objective in interpreting a contract is to ascertain and carry out the intentions of the parties. See, e.g., Maas, 172 Wis. 2d at 79 ; Kremers-Urhan Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735 , 351 N.W.2d 156 (1984). "Of primary importance is that the language of an insurance policy should be interpreted to mean what a reasonable person in the position of the insured would have understood the words to mean." Sprangers [v. Greatway Ins. Co.], 182 Wis. 2d 521, 536 , [ 514 N.W.2d 1 (1994)]; accord, e.g., Kuhn, 193 Wis. 2d at 60 ; Kremers-Urhan Co., 119 Wis. 2d at 735 .
Hills, 209 Wis. 2d at 175 .
¶ 127. It was also emphasized in Hills that: "It has long been the law of this state that the cost of repairing and restoring damaged property and water to its original condition is a proper measure of compensatory damages." Id. at 181 . As noted by the majority át ¶ 57, several cases and authorities were cited in support of this statement. The Edgerton decision did not address these cases and authorities at all.
*138 ¶ 128. Although the lower courts made a valiant effort to apply our decisions in Hills and Heritage, two new categories were developed in order to determine whether various situations would or would not he covered by language in comprehensive general liability insurance policies. See majority op., ¶ 21.
¶ 129. Instead of limiting Edgerton, as we hoped would occur after Hills and Heritage, the court of appeals concluded that the two new categories were controlled by the rationale of Edgerton. See majority op., ¶ 24. According to the court of appeals:
The third category presents a situation where the insured is responsible for at least part of the contamination of a site that it does not own, and has been directed by a government to remediate the site, but has not done so. The insured is sued by the government to recover money it spent to clean up the site.
Johnson Controls v. Employers Ins. of Wausau, 2002 WI App 30, ¶ 7 , 250 Wis. 2d 319 , 640 N.W.2d 205 («Johnson Controls II). The court of appeals also stated:
The fourth category encompasses situations where the insured is responsible for at least part of the contamination of a site that it does not own, and has been directed by a government entity to remediate the site, but has not done so. The insured is sued by the site's owner or others also responsible for the contamination who cleaned up the site at the government's direction.
Id., ¶ 8. The court of appeals, in finding no insurance coverage for scenarios covered by categories three and four, further stated:
In categories three and four, unlike in two, a property owner is not seeking "legal damages", for injury *139 to its property by one who has either caused or contributed to the pollution. Rather, the government and property owners forced by the government to clean up contamination allegedly caused by Johnson Controls are seeking what Edgerton noted was "equitable monetary relief," that is, recompense for monies spent in complying with the nation's environmental-protection laws — money that would have been spent by Johnson Controls if it had complied with the government's cleanup directives.
Id., ¶ 9 (citing Edgerton, 184 Wis. 2d at 784).
¶ 130. This approach did not result in the limiting function that it was hoped would occur from application of Hills and Heritage. In retrospect, it seems quite clear that we should have overruled, not distinguished, Edg-erton six years ago. 1
¶ 131. As a result of this, the problems created by Edgerton were unfortunately allowed to continue unnecessarily for six more years after our decisions in Hills and Heritage.
¶ 132. For the reasons discussed, I respectfully concur.
In her concurring opinion in Hills Chief Justice Abraha-mson noted her belief that "the majority opinion marks a significant step towards overruling Shorewood, upon which Edgerton relied . . . ." She further stated her desire to "embrace the inevitable now by expressly overruling Shorewood and thereby recognizing the limited application of the Edgerton decision on damages." She did not wish to see Shorewood and Edgerton "overturned in small measures by debatable judicial distinctions." General Cas. Co. of Wisconsin v. Hills, 209 Wis. 2d 167, 185-86 , 561 N.W.2d 718 (1997) (Abrahamson, C.J., concurring).