A Man, Off Camera, Rests His Hand Atop The Handle Of A Shovel With Its Blade Buried In A Pile of Corn Kernels Loaded In An Trailer

Aug. 18, 2023 – A man who died unloading a trailer was operating a motor vehicle, and the two-year statute of limitations applied to a wrongful death lawsuit filed by his estate, the Wisconsin Court of Appeals has ruled.

In Estate of Kevin Wiemer v. Zeeland Farm Services, Inc., 2022 AP 1436 (Aug. 8, 2023), the Court of Appeals District III held that because the lawsuit was filed 30 months after the man’s death, the circuit court erred by denying the defendant’s motion for summary judgment.

Deadly Load

On Sept. 16, 2019, River Country Co-op (River Country) purchased 25 tons of pelletized corn gluten from Zeeland Farm Services, Inc.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

On Sept. 19, 2019, Blackhoof Trucking (Blackhoof) delivered the corn gluten to River Country’s facility, located in Sheldon. Blackhoof used a semi-tractor and an attached gravity-operated hopper trailer to deliver the corn gluten.

Blackhoof’s driver positioned the trailer’s bin over a conveyor pit, which the corn gluten would fall into when the trailer bin door was opened. However, the corn gluten had become compacted inside the trailer and wouldn’t fall through the door.

Kevin Wiemer, a River Country employee, climbed atop the trailer and labored to break up the compacted corn gluten.

While breaking up the compacted corn gluten, Wiemer fell into the trailer. The force of the corn gluten cascading toward the bottom of the trailer caught Wiemer and dragged him beneath the surface of the load, suffocating him.

Summary Judgment for Defendants

On March 18, 2022 – two-and-a-half years after Wiemer’s death – Wiemer’s estate (Estate) filed a wrongful death action in Rusk County Circuit Court.

The defendants filed a motion for judgment on the pleadings, which later was converted by operation of law into a motion for summary judgment.

The defendants argued that the lawsuit should be dismissed because it was filed more than two years after Wiemer’s death, and violated Wis. Stat. section 893.54(2m), the statute of limitations for actions involving a motor vehicle accident.

The circuit court determined that the Blackhoof rig was a motor vehicle under section 893.54(2m). But the circuit court concluded that the accident didn’t “involve” a motor vehicle.

The defendants appealed.

Tractor-trailer Is a Motor Vehicle

Writing for a three-judge panel, Presiding Judge Lisa Stark began her opinion by concluding that the Blackhoof rig was a motor vehicle under section 893.54(2m).

Stark pointed out that section 893.54(2m) contains no definition for “motor vehicle.”  However, she explained, under Wisconsin Supreme Court caselaw, an appellate court presumes that, when the legislature enacts a statute, it does so with the knowledge of other statutes.

Judge Stark reasoned that several other statutes provide definitions of “motor vehicle,” and that the Blackhoof rig fit within each definition.

For instance, the definition of “motor vehicle” in section 340.01(35) included both “a combination of 2 or more vehicles” and a “commercial motor vehicle.”

Stark also concluded that the Blackhoof rig was a “motor vehicle” as that term is defined in sections 344.01(2)(b) and 632.32(2)(at).

Not a Combination?

The Estate argued that the Blackhoof rig was not a combination of two or more vehicles under section 340.01(35) because the gravity-operated trailer didn’t work in combination with the tractor-trailer.

But Judge Stark disagreed.

“Here, the semi-tractor and trailer were combined when they were attached to one another – that is, when they were merged into a single vehicle,” Stark wrote.

“At that point, they became a ‘combination’ until they were detached. The definition of ‘motor vehicle’ in … section 340.01(35) merely required the semi-tractor and trailer to be a combination; it did not require a showing that they worked in combination to break the bridge that had formed inside the trailer.”

The Estate also argued that the Blackhoof rig was not a motor vehicle under section 340.01(35) because section 340.01 contains separate definitions for “trailer,” “motor vehicle,” and “truck tractor.”

But Stark pointed out that the definition of “trailer” under section 340.01(71) specifies that a trailer is a vehicle that lacks its own source of power and is designed to be pulled by another vehicle.

“This definition recognizes that a truck tractor is designed to draw other vehicles, and it does not prevent a conclusion that a truck tractor, in combination with an attached trailer, can constitute a single motor vehicle under section 340.01(35),” Judge Stark wrote. 

Unloading Means Wiemer Was Involved

Section 893.52(2m) contains no definition of “involve.” So, Stark looked to the dictionary definitions of “involve” and concluded that the accident that killed Wiemer involved a motor vehicle under section 893.52(2m).

According to those definitions, “involve” means “to engage as a participant” and “to include someone or something in an activity.”

Under the undisputed facts of the accident, Judge Stark wrote, “the tractor-trailer was engaged as a participant in the accident, was a necessary accompaniment to the accident, and was included in the accident.”

Furthermore, Stark concluded that Wiemer was “using” or “operating” the Blackhoof rig because under court of appeals caselaw, loading or unloading cargo counts as the use or operation of a motor vehicle.

Unloading Means Operating

The Estate also argued that Wiemer’s death was due to the negligent handling of the corn gluten, and that neither the semi-tractor nor the trailer was being operated when Wiemer was killed. 

But that argument missed the mark, Judge Stark concluded.

“Wiemer was not just sitting on the trailer when the accident occurred,” Stark wrote. “He was actively participating in unloading the trailer by attempting to break the bridge … unloading a vehicle constitutes the use or operation of that vehicle under Wisconsin law.”