Glens Falls Insurance Co. of New York v. Concrete Research, Inc.

Per Curiam. Plaintiffs sued, alleging that the collapse of the building was caused by the negligence of the defendants. The defendants answered, denying negligence. They also raised affirmative defenses of waiver or estoppel and accord and satisfaction arising out of the settlements between the plaintiffs and the owner and general contractor under the insurance policies issued by plaintiffs. The parties stipulated the issues raised by the affirmative defenses should be tried separately. Accordingly, a hearing was held, evidence, was given, and the trial judge rendered findings • of fact and conclusions of law and a document called an “interlocutory judgment/'' . The first question in this case is whether the determination of the trial judge is in fact an interlocutory judgment. To qualify under sec. 270.54, Stats., the finding or decision must substantially dispose of the merits and must determine whether a duty or liability presently exists. Northland Greyhound Lines v. Blinco (1956), 272 Wis. 29, 74 N. W. 2d 796. The document in this case does not meet these standards. The liability or duty of the defendants has not been determined because *746 the issue of their negligence remains to be tried. Accordingly, the “judgment” is nothing more than an order striking the affirmative defenses of the defendants, and is not appealable because it is not the substantial equivalent of a demurrer. Gauger v. Ludwig (1972), 56 Wis. 2d 492, 202 N. W. 2d 283; Kama v. Chicago & North Western Ry. Co., No. 327, post, p. 762, 204 N. W. 2d 681. The appeal is dismissed.