FINE, J.
¶ 1 This matter was here before. Estate of Kriefall ex rel. Kriefall v. Sizzler USA Franchise, Inc., 2003 WI App 119, ¶ 1, 265 Wis.2d 476, 483, 665 N.W.2d 417, 421, held that claims by the estate of a child alleged to have died as the result of, and persons alleged to be injured by, contaminated meat sold by Excel Corporation were not barred by federal preemption. The claims of the Kriefalls and the others alleged to be injured by the meat were settled. This appeal concerns disputes between the Sizzler parties and Excel.
¶ 2 The parties to this appeal are:
¶ 3 The jury found the following:
¶ 4 Excel and American Home Assurance appeal the trial court's judgments and some orders. E & B and Secura cross-appeal a judgment and some orders. Sizzler USA Franchise cross-appeals two orders. We affirm the judgments and orders except: (1) We reverse the trial court's order permitting E & B and Secura to recover from Excel the money Federal Insurance Company, Sizzler USA Franchise's insurer, paid to Secura; and (2) We reverse the trial court's order rejecting Sizzler USA Franchise's equitable-indemnity claim against Excel. Part I discusses Excel's appeal; Part II discusses E & B's cross-appeal; and Part III discusses Sizzler USA Franchise's cross-appeal.
¶ 5 The appeal and cross-appeals require that we interpret and apply statutes and contracts. In doing so, our review of what the trial court did is de novo. See Edwards v. Petrone, 160 Wis.2d 255, 258, 465 N.W.2d 847, 848 (Ct.App.1990) (contract); Village of Shorewood v. Steinberg, 174 Wis.2d 191, 201, 496 N.W.2d 57, 61 (1993) (statute). Further, we apply a statute as it is written unless it is constitutionally infirm or its text does not reveal the legislature's intent. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 43-44, 271 Wis.2d 633, 661-662, 681 N.W.2d 110, 123-124. Moreover, ambiguous provisions must be both interpreted and applied so they are consistent with the statute read as a whole. Id., 2004 WI 58, ¶ 46, 271 Wis.2d at 663, 681 N.W.2d at 124. The appeal and cross-appeals also require that we assess the trial court's rulings on evidence and its decisions on scheduling. Our review of those matters is limited to whether the trial court erroneously exercised its discretion. State v. Sullivan, 216 Wis.2d 768, 780, 576 N.W.2d 30, 36 (1998) (Receipt of evidence is vested in the trial court's reasoned discretion.); Hefty v. Strickhouser, 2008 WI 96, ¶ 31, 312 Wis.2d 530, 546-547, 752 N.W.2d 820, 828 (Trial courts have both inherent and statutory discretion to control their dockets.); Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶ 29, 265 Wis.2d 703, 724, 666 N.W.2d 38, 49 ("trial court has broad discretion in deciding how to respond to untimely motions to amend scheduling orders"). We will sustain a discretionary determination if "the circuit court examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach." Sullivan, 216 Wis.2d at 780-781, 576 N.W.2d at 36. Additionally, when more than one analysis supports our decision on the many issues presented by the appeal and cross-appeals, we discuss the dispositive analysis and not others. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).
¶ 6 Excel contends that the trial court erred in not dismissing Sizzler USA Franchise's implied-warranty consequential-damages claims.
¶ 8 The express-warranty claim was based on a 1997 document titled "Continuing Guaranty" (uppercasing omitted). The guaranty was between Excel as "Seller" and Sizzler International, Inc., which, as already noted, is the parent company of Sizzler USA Franchise. The guaranty, dated September 22, 1997, provided, as material:
(Bolding omitted, paragraphing altered.) The trial court held on summary judgment that Excel's liability for consequential damages was specifically excluded from this Continuing Guaranty by the last sentence, and dismissed Sizzler USA Franchise's express-warranty claim. It also held, however, that this clause did not affect either Excel's duties under the implied-warranty provisions of Wisconsin's Uniform Commercial Code, or Sizzler USA Franchise's remedies under the Code. We look at these provisions before we assess Excel's contentions that the trial court erred in not dismissing Sizzler USA Franchise's implied-warranty consequential-damages claims.
¶ 9 WISCONSIN STAT. § 402.314 provides as material:
WISCONSIN STAT. § 402.315 provides:
¶ 10 The Excel meat that made it into the E & B Sizzler restaurants and gave rise to these actions was sold by a document sent to "Sizzler Franchise Distributors" by Sizzler USA Franchise in February of 2000. The document, titled "Boxed Beef Sales Confirmation and Contract" (uppercasing omitted), identified the "Buyer" as "Sizzler USA, Inc. c/o Franchisees and Distributors." In "Addendum `A'" to the contract, the various distributors and franchise owners on whose behalf the contract with Excel was negotiated, indicated that "[b]y signing where indicated below [a series of signature pages attached to the contract], the distributor and franchisee owner are responsible for carrying out the terms and conditions of [the contract]." Sysco Corporation, a food distributor for the E & B Sizzler restaurants, signed as "Sysco-Baraboo, W[i]s."; a handwritten note on that signature page reads "Sysco/Eastern Wisconsin." The Addendum also recited that the contract was "entered into between Excel Corporation and Sizzler Int'l" on the date shown. Again, Sizzler International is the parent company of Sizzler USA Franchise.
¶ 11 As noted, the trial court ruled that Sizzler USA Franchise was entitled to recover its consequential damages suffered as a result of Excel's alleged breach of its implied warranties under the Uniform Commercial Code. The jury awarded significant damages. Excel gives four reasons, which we analyze in turn, why it believes that the trial court was wrong.
¶ 12 Excel claims that a clause in the Continuing Guaranty ("This Guaranty shall not render Seller liable for any incidental or consequential damages of whatsoever nature nor shall it extend to the benefit of persons or corporations other than Sizzler International, Inc., or its affiliates") removed consequential damages
¶ 13 "`In construing the terms of a contract, where the terms are plain and unambiguous, it is the duty of the court to construe it as it stands, even though the parties may have placed a different construction on it.'" Algrem v. Nowlan, 37 Wis.2d 70, 79, 154 N.W.2d 217, 221 (1967) (citation omitted). See also Eddy v. B.S.T.V., Inc., 2005 WI App 78, ¶ 2, 280 Wis.2d 508, 511, 696 N.W.2d 265, 267. This means that "[w]hen the language is unambiguous, we apply its literal meaning." Farm Credit Services of North Cent. Wisconsin, ACA v. Wysocki, 2001 WI 51, ¶ 12, 243 Wis.2d 305, 314, 627 N.W.2d 444, 448. As the trial court recognized, the phrase in the Continuing Guaranty excluding the right of Sizzler USA Franchise to recover consequential damages is hardly ambiguous and encompasses only the express warranties undertaken by the Continuing Guaranty: "This Guaranty shall not render Seller liable for any incidental or consequential damages of whatsoever nature." (Emphasis added.) Stated another way, incidental and consequential damages are excluded from those damages that might be recovered if the express warranties in the Continuing Guaranty were breached. Excel argues that the Continuing Guaranty's consequential-damages exclusion should apply to the implied warranties under the Uniform Commercial Code because, as Excel writes in its main appellate brief, the exclusion represents the parties' "bargained for allocation of risk." (Capitalization omitted.) The parties specifically limited their "allocation of risk" in connection with consequential damages, however, to the express warranties agreed-to in the Continuing Guaranty. We may not re-write a contract to do what one of the parties now wishes in retrospect it had done before. See Hortman v. Otis Erecting Co., Inc., 108 Wis.2d 456, 461, 322 N.W.2d 482, 484-485 (Ct.App.1982).
¶ 14 Further, the incidental-and-consequential-damages clause does not purport to encompass implied warranties created elsewhere—here the Uniform Commercial Code. As we explain in the next subsection, nothing in the Uniform Commercial Code incorporates into the Code's implied-warranty provisions the Continuing Guaranty's express-warranty incidental-and-consequential-damages exclusion.
¶ 15 As we have seen, Excel's delivery of contaminated meat to the E & B Sizzler restaurants breached implied warranties recognized by WIS. STAT. §§ 402.314 and 402.315. In support of its contention that the trial court erred in not dismissing Sizzler USA Franchise's claim for implied-warranty consequential damages, Excel points to WIS. STAT. § 402.719(3), which permits a contract to limit or exclude consequential damages. Section 402.719 reads in full:
¶ 16 As we noted in subpart 1, the incidental-and-consequential-damages limitation in the Continuing Guaranty applies only to any breach of express warranties created by that agreement ("This guaranty shall not render Seller liable for any incidental or consequential damages") and thus the limitation did not extend beyond the four corners of the Continuing Guaranty. Equally significant, WIS. STAT. § 402.719 applies by its terms to contracts for sale that create or modify "remedies" authorized by the Code ("The agreement [between the parties] may provide for remedies in addition to or in substitution for those provided in this chapter and may limit or alter the measure of damages recoverable under this chapter."), and subsection (3) addresses the limitation or exclusion of consequential damages in such an "agreement." Excel has pointed to none of the pertinent contracts of sale that even addresses consequential damages resulting from a breach of the Uniform Commercial Code's implied warranties in WIS. STAT. §§ 402.314 and 402.315.
¶ 17 Significantly, Excel could have under WIS. STAT. § 402.316 both: (i) sought "to exclude or modify the implied warranty of merchantability" as well as "any implied warranty of fitness," see § 402.316(2) & (3); and (ii) limited or modified remedies for their breach, see § 402.316(4) ("Remedies for breach of warranty can be limited in accordance with ss. 402.718 and 402.719 on liquidation or limitation of damages and on contractual modification of remedy."). See Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 414-419, 265 N.W.2d 513, 517-520 (1978) (discussing §§ 402.316 and 402.719). Excel put nothing into any of the contracts of sale (other than, as already noted at length, the Continuing Guaranty, which, as we have explained, does not modify the implied warranties recognized by the Uniform Commercial Code) that even purports to disclaim, modor
¶ 18 In Wyatt Industries, Publicker hired Wyatt to build a pressure vessel that Publicker was going to use in order to process synthetic ethanol. Id., 420 F.2d at 455. Wyatt warranted "the completed work against defective material and workmanship, exclusive of corrosion or erosion, for the period of one year from completion thereof." Id., 420 F.2d at 456. The guarantee also provided that Wyatt's "liability under this warranty shall be limited to the replacement within the aforesaid time of any defective work or material f.o.b. Fabricator's shop, and Fabricator shall be liable for no other damages or losses." Ibid. If that were all to Wyatt's undertaking, the limitation would have been effective. But, as the building and testing of the pressure vessel showed cracks and leaks, Publicker agreed to accept delivery only if the guarantee was modified. Ibid. It was modified: "an agreement was reached whereby the cracks would be repaired and the vessel would be shipped `as is' on the condition that Wyatt would be absolved of liability for damage claims or repair costs in excess of $25,000." Ibid. The phrase "as is" is, of course, one of the ways the Uniform Commercial Code recognizes that warranties may be excluded or modified. See Wis. STAT. § 402.316(3)(a). The pressure vessel was apparently still flawed, and when Wyatt sued to recover its purchase price, Publicker counterclaimed "for loss of profits due to business interruptions occasioned by defects" in the pressure vessel, and also expenses it claimed for replacing and making serviceable a new pressure vessel. Wyatt Industries, 420 F.2d at 456. Wyatt Industries held that the express "as is" agreement, which modified the original guaranty, was effective under §§ 2-316 and 2-719 Uniform Commercial Code (substantially identical to WIS. STAT. §§ 402.316 and 402.719). There was no similar modification by Excel of the Code's implied warranties so as to limit the remedy for their breach.
¶ 19 Excel argues that Sizzler USA Franchise, although listed as "Buyer" in the "Boxed Beef Sales Confirmation and Contract" (uppercasing omitted), was not the buyer of the meat under the Uniform Commercial Code because it "never took possession of Excel's beef and never paid Excel for the beef."
¶ 20 Whether Sizzler USA Franchise is a "buyer" under WIS. STAT. ch. 402, which
¶ 21 Equally significant, WIS. STAT. ch. 402 does not just apply to a "sale," as that term is defined by WIS. STAT. § 402.106(6), but to the more general aspect of commerce: "transactions in goods." WIS. STAT. § 402.102. Thus, the law generally recognizes that Article 2 of the Uniform Commercial Code is not limited to "sales" per se. See Mieske v. Bartell Drug Co., 92 Wn.2d 40, 593 P.2d 1308, 1312 (1979). Mieske explains: "`It is now clearly established that the reach of Article 2 [adopted in Wisconsin as ch. 402,] goes considerably beyond the confines of that type transaction which the Code itself defines to be a "sale"; namely, the passing of title from a party called the seller to one denominated a buyer for a price.'" Mieske, 593 P.2d at 1312 (quoting treatise) (bailment within Article 2). This is consistent with the provision in Wis. Stat. § 402.401 that passing of "title" is not always required.
¶ 22 Finally, nothing in WIS. STAT. §§ 402.314 or 402.315, restricts in haec verba the implied-warranties in those sections to "buyers." Rather, § 402.314 tells us that the implied warranty of merchantability applies "in a contract for [the "sale" of "goods"] if the seller is a merchant with respect to goods of that kind." Excel does not dispute that it is the "seller" in connection with the Boxed Beef Sales Confirmation and Contract for the meat packages destined for the Sizzler franchisees, and that the document was, as § 402.314 requires, "a contract for their sale." Similarly, § 402.315 tells us that the implied warranty of fitness applies: "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods." Since
¶ 23 Excels argues that Sizzler USA Franchise's "warranty claims also fail because Excel and Sizzler [USA Franchise] are not in privity of contract." This is a puzzling assertion because, as we have seen at some length, the "Boxed Beef Sales Confirmation and Contract" (uppercasing omitted) was between Excel and Sizzler USA Franchise. The nub of Excel's contention, though, is that Sizzler USA Franchise did not itself take delivery of the meat under the contract.
Excel's sale of meat under its contract with Sizzler USA Franchise as franchisor was obviously designed to benefit both Sizzler USA Franchise and its franchisees because a franchise operation that sells meat products needs a supply of meat. Indeed, Excel noted during oral argument that it is "standard" for franchisors to contract for the sale of product to its franchisees. Excel cannot avoid the consequences of its breach of the implied warranties by fogging the issue with strained analysis. See U.S. Bank Nat'l Ass'n v. City of Milwaukee, 2003 WI App 220, ¶ 8, 267 Wis.2d 718, 730, 672 N.W.2d 492, 497. Thus, analogously, in Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38
Id., 604 F.2d at 40. Excel's contention that Sizzler USA Franchise cannot recover for breach of the Code's implied warranties for damages it sustained as a result of Sizzler USA Franchise's contract with Excel is without merit. The trial court did not err.
¶ 24 E & B and Sizzler USA Franchise and their insurers settled with the non-Kriefall claimants under releases authorized by Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). See id., 21 Wis.2d at 184-185, 191-192, 124 N.W.2d at 108, 111-112 (A Pierringer release bars contribution actions that the non-settling defendants might have against the settling defendants.); see also Van-Cleve v. City of Marinette, 2003 WI 2, ¶ 39, 258 Wis.2d 80, 100, 655 N.W.2d 113, 123 ("[A] Pierringer release operates to impute to the settling plaintiff whatever liability in contribution the settling defendant may have to non-settling defendants and to bar subsequent contribution actions the non-settling defendants might assert against the settling defendants."). A Pierringer release thus satisfies "that portion of the plaintiff's cause of action for which the settling joint tortfeasor is responsible, while at the same time reserving the balance of the plaintiff's cause of action against a nonsettling joint tortfeasor." Imark Industries, Inc. v. Arthur Young & Co., 148 Wis.2d 605, 621, 436 N.W.2d 311, 318 (1989).
¶ 26 The agreement then fleshed out, as material here: (1) the nature of the "Claims" that would trigger Excel's obligations under the Hold Harmless Agreement, and (2) the scope of those obligations. It covered claims:
Excel contends that it is not liable under the Hold Harmless Agreement because (1) the jury found that E & B was twenty-percent contributorily negligent, and (2) settlements made in exchange for Pierringer releases are not, as they express it in their main brief on this appeal, "recoverable under the 1993 Hold Harmless Agreement." (Some capitalization omitted.) We disagree.
¶ 27 The jury found that E & B was twenty-percent contributorily negligent, and Excel was eighty-percent contributorily negligent, in connection with the death and illnesses caused by the E. coli pathogen. Under the Hold Harmless Agreement's unambiguous language, however, Excel is only relieved of its indemnity obligations "to the extent" that the harm was contributed-to by the negligence of "any other third party."
¶ 28 As we have seen, a Pierringer release bars a non-settling defendant (here, Excel) from seeking contribution from the settling defendant (here, E & B) for damages that a plaintiff might recover that are attributable to the settling defendant's causal negligence (here, 20%) because the plaintiff has, by virtue of the Pierringer release, agreed to indemnify the settling defendant (E & B) to the extent that the settling defendant (E & B) is found to be causally negligent. Thus, by virtue of the Pierringer releases, Excel's financial responsibility for the non-Kriefall claimants' injuries is reduced by the twenty-percent of fault attributed to E & B.
¶ 29 Excel argues, however, that because E & B and Secura bought their peace by settling with the non-Kriefall claimants under a Pierringer release, thus extinguishing the percentage of damages that was attributable to E & B, E & B may not get any indemnity from Excel because of the interplay between the Hold Harmless Agreement and the Pierringer release. Excel relies mainly on Unigard Ins. Co. v. Insurance Co. of North America, 184 Wis.2d 78, 516 N.W.2d 762 (Ct. App.1994).
¶ 30 Unigard settled with a Pierringer release its liability and the liability of its insured. Id., 184 Wis.2d at 83, 516 N.W.2d at 764. The Pierringer release specifically reserved Unigard's right to seek contribution from others who could not be made parties in the settled action, and provided that Unigard and its insured were "`not releasing any rights, claims or causes of action of any nature they may have against any other person or entities.'" Ibid. (emphasis by Unigard). Unigard thus contended that "the Pierringer release only prevented contribution or indemnification actions against the nonsettling parties named in the lawsuit." Id., 184 Wis.2d at 83-84, 516 N.W.2d at 764 (emphasis by Unigard). There was an additional clause in the release, however:
Id., 184 Wis.2d at 84, 516 N.W.2d at 764 (emphasis by Unigard). Unigard held that despite the settling defendants' (Unigard and its insured) attempt to preserve their rights of contribution against the non-party tortfeasors, contribution was barred:
Id., 184 Wis.2d at 87-88, 516 N.W.2d at 766.
¶ 31 Excel invokes Unigard, and argues that since "amounts paid in exchange for
¶ 32 First, if E & B and Secura had not settled with the non-Kriefall claimants, and had the jury awarded damages to the non-Kriefall claimants, and had the jury apportioned the negligence as it did here (20% for E & B, and 80% for Excel), there is no doubt but that E & B and Secura would have a right to be indemnified under the Hold Harmless Agreement for all "damages for the injury, illness and/or death of any person" caused by the pathogen, but only "to the extent" that those damages were not "caused by the negligent acts or omissions of" E & B. This means that Excel would have been liable under the Agreement for eighty-percent of the damages awarded to the non-Kriefall claimants. It would be odd indeed, if E & B's Pierringer-release settlement could wipe out all of Excel's liability to E & B under the Hold Harmless Agreement.
¶ 33 Second, the mix of the non-Kriefall claimants' tort claims against Excel and E & B, and E & B and Secura's contract claims for indemnity under the Hold Harmless Agreement, is a mix of, to use the cliché, apples and oranges. In the traditional Pierringerrelease situation, the plaintiff has tort claims against a group of defendants, some of whom settle with the plaintiff. Absent a Pierringer release, the non-settling defendants would, if they were found liable at trial, have contribution rights against the settling defendants. See Unigard, 184 Wis.2d at 85-86, 516 N.W.2d at 765. The Pierringer release wipes that out by, as we have already seen, imputing "to the settling plaintiff whatever liability in contribution the settling defendant may have to non-settling defendants and to bar subsequent contribution actions the non-settling defendants might assert against the settling defendants." See VanCleve, 2003 WI 2, ¶ 39, 258 Wis.2d at 100, 655 N.W.2d at 123.
¶ 34 The situation here is, however, different than the tort triangle where Pierringer releases are used (plaintiff settling with some tortfeasors and prevailing at trial against non-settling tortfeasors who, absent a Pierringer release, could seek contribution from the settling tortfeasors) because here we have Excel's contractual undertaking to indemnify E & B for harm caused by Excel. Thus, as Eden Stone Co., Inc. v. Oakfield Stone Co., Inc., 166 Wis.2d 105, 120, 479 N.W.2d 557, 563-564 (Ct.App.1991) recognized:
¶ 35 Federal Insurance paid $1 million to Secura to help Secura settle with the non-Kriefall claimants. Even though there is no evidence in the Record that Secura either repaid that money, or is obligated to do so, the trial court held that E & B could get that money from Excel by virtue of the Hold Harmless Agreement. We disagree because there is nothing in the Hold Harmless Agreement that justifies that windfall, and because the collateral-source rule, which permits windfalls under certain circumstances, is not applicable.
¶ 36 The collateral-source rule is an equitable doctrine that prevents a tortfeasor from benefiting if a plaintiff gets money from either: (1) an entity obligated to reimburse the plaintiff for damages sustained as the result of something the tortfeasor did (an insurance company, for example, that pays for medical expenses the plaintiff incurred as the result of something the tortfeasor did), or (2) a volunteer that helps the plaintiff with expenses (a charity, for example, that buys food and pays rent for a plaintiff unable to work as the result of something the tortfeasor did), see Fischer v. Steffen, 2011 WI 34, ¶¶ 30, 34, 333 Wis.2d 503, 513, 797 N.W.2d 501, 506 ("In general, the collateral source rule provides that a tortfeasor's liability to an injured person is not reduced because the injured person receives funds from other sources.") (footnote omitted) (collateral-source rule is an equitable doctrine); Ellsworth v. Schelbrock, 2000 WI 63, ¶ 14, 235 Wis.2d 678, 687, 611 N.W.2d 764, 768 ("[T]he collateral source rule is invoked when a third party pays or gratuitously provides or pays for benefits to the injured party."). E & B, however, is not the type of party that the collateral source rule was designed to benefit—E & B is a tortfeasor, not an injured party. As between giving a windfall to either an injured claimant or to the tortfeasor that caused the claimant's injuries, the collateral-source rule gives the windfall to the injured claimant. See Voge v. Anderson, 181 Wis.2d 726, 732-733, 512 N.W.2d 749, 751-752 (1994). Federal Insurance is not seeking from Excel the money it paid to Secura. Federal Insurance is also not seeking to get that
¶ 37 Excel contends that the trial court erroneously exercised its discretion in connection with several evidentiary issues. We analyze these matters in turn.
¶ 38 Schwochert was an employee of the United States Department of Agriculture assigned to Excel's meat-processing plant that is implicated in this case. He was, according to his testimony, a "supervisory veterinarian medical officer" and described for the jury the plant's meat processing and whether, during the time he was an inspector at the plant, which ended shortly before the plant processed the meat that was delivered to the E & B's Sizzler restaurants, to what extent the plant complied with its Hazard Analysis And Critical Control Point System. See Kriefall, 2003 WI App 119, ¶ 19, 265 Wis.2d at 497-498, 665 N.W.2d at 428 (discussing the federal requirement that meat-processing plants devise and follow Hazard Analysis and Critical Control Point Systems). Although Sizzler USA Franchise identified Schwochert as a trial witness, it did not designate him as an expert witness to give opinions within the scope of then-extant WIS. STAT. RULE 907.02.
¶ 39 Excel contends that the trial court improperly permitted Schwochert to testify as an expert, in violation of the trial court's scheduling order, which required that persons to be called to give expert testimony be identified as such. Specifically, Excel points to Schwochert's opinion that, as phrased by its main brief on this appeal, "it would take `someone being killed' before the meat processing industry would implement procedures whereby it could produce a non-defective product." (Quoting Schwochert's testimony.) Excel points to nothing else in Schwochert's testimony that it claims was an opinion within the scope of WIS. STAT. RULE 907.02.
¶ 40 Assuming with some skepticism but not deciding one way or another that the quoted testimony was an "expert" opinion, the problem with Excel's appellate argument is that it does not point to any place during the trial (or before, via a motion in limine) where it contemporaneously objected to that opinion or to any question on the ground that the question called for Schwochert's "expert" opinion. A witness's ability to testify about a matter, whether a non-expert observation or an expert opinion, is decided question-by-question. See Brown County v. Shannon R., 2005 WI 160, ¶ 36, 286 Wis.2d 278, 300, 706 N.W.2d 269, 281 ("An expert witness is qualified if `he or she has superior knowledge in the area in which the precise question lies.' An expert witness, though qualified to testify, may not be qualified to testify with regard to a particular question.") (quoted sources and footnotes omitted);
¶ 41 By not contemporaneously objecting to any expert testimony Schwochert was asked to give, or, at the very least, seeking to have the trial court strike the allegedly offending testimony, Excel cannot now complain that receipt of that testimony was error. Wisconsin Stat. Rule 901.03 is specific:
Accordingly, we reject Excel's claim of trial-court error in connection with Schwochert's testimony.
¶ 42 Dr. Singh is a microbiologist with the Wisconsin Department of Health. As part of his work for the Department, he had identified the E. coli pathogen as the cause of illness at the E & B Sizzler restaurants. Excel named him as a fact witness, not as an expert witness. Sizzler USA Franchise deposed Dr. Singh about his work and what he discovered in connection with the illness. At trial, Excel wanted to call Dr. Singh as an expert witness to testify about whether it was possible for the E. coli pathogen to travel in the air from meat to the food eaten by those who got sick at the E & B Sizzler restaurants. Unlike the situation with Schwochert, however, Sizzler USA Franchise and E & B objected to this proposed testimony before Dr. Singh testified. They argued that Dr. Singh never disclosed in any report or at his deposition that he had an opinion on whether the pathogen could travel in the air from the meat to other food in the restaurants. Sustaining their objections, the trial court did not permit Dr. Singh to testify about whether the pathogen's aerosolization was possible. It explained why, and we reprint the pertinent parts of the trial court's analysis because, as noted earlier, whether to allow receipt of evidence is within the trial court's discretion:
The trial court assessed Excel's passing argument that Dr. Singh's testimony about aerosolization would merely be "rebuttal," noting, as we see, that the issue was in the case for a long time. Thus, the trial court recognized that the matter was not new and that it did not enter the case as a surprise to Excel. This is fully consistent with established law. See Rausch v. Buisse, 33 Wis.2d 154, 167, 146 N.W.2d 801, 808 (1966) ("The general rule is that the plaintiff, in his rebuttal, may only meet the new facts put in by the defendant in his case in reply."). The trial court also asked Sizzler USA Franchise and E & B: "So do you want time to depose Dr. Singh before the trial?" The question, however, was, apparently lost amidst the ensuing discussion about Dr. Singh and other witnesses, and Excel never offered that as a solution to the trial court's order preventing Dr. Singh from giving an expert opinion about aerosolization. As evident from the trial court's careful analysis, Excel's contention that the trial court erroneously exercised its discretion in connection with the testimony of Dr. Singh is without merit.
¶ 43 Excel argues that the trial court erroneously exercised its discretion when it permitted the jury to learn of the abysmal sanitary conditions at the Excel plant that produced the meat delivered to the E & B Sizzler restaurants. Specifically, Excel contends that the trial court should have excluded evidence of Noncompliance Records issued to the Excel plant by the Department of Agriculture for the years 1997 to 2000 because carcasses were contaminated by fecal matter, contrary to the required "zero tolerance" we discussed in Kriefall, 2003 WI App 119, ¶ 34, 265 Wis.2d at 511-512, 665 N.W.2d at 435, as well as because the plant's employee-restroom facilities were horrifically unsanitary, a condition that could, according to the testimony, result in the transfer of E. coli from human waste to the meat being processed. As a result of the violations, the plant was both involuntarily and voluntarily shut down for short periods in 1999.
¶ 44 The trial court determined that this evidence was admissible under WIS. STAT. RULE 904.04(2)(a). The Rule provides, as material:
A trial court applying this Rule must go through a three-stage analysis: (1) "Is the other acts evidence offered for an acceptable purpose" under the Rule?; (2) "Is the other acts evidence relevant" under WIS. STAT. RULE 904.01?; and, if (1) and (2) are satisfied, (3) "Is the probative value of the other acts evidence substantially outweighed by" the factors in WIS. STAT. RULE 904.03? See Sullivan, 216 Wis.2d at 772-773, 576 N.W.2d at 32-33 (1998).
¶ 45 Although opining that all nine of the examples listed in WIS. STAT. RULE 904.04(2)(a) applied, the trial court focused on three, noting that the core issue of the case was whether and to what extent Excel was negligent (in comparison with the alleged negligence of E & B and Sizzler USA Franchise): (1) "motive," that is financial gain, which the trial court explained gave context to Excel's cutting corners and having an assembly line moving the carcasses past the inspectors so fast that it was hard for them to detect fecal contamination; (2) "opportunity," that is whether Excel would have been able to correct the many problems and was negligent for not doing so; and (3) "intent," that is why Excel chose to not "eliminate the need for" issuance of the deficiency reports that highlighted conditions that were conducive to the production of contaminated meat. This is true despite Excel's contention in its reply brief that the human-waste evidence was not admissible because there was no evidence "that any Excel employee was infected with 0157:H7," and no one "testified that the condition of the restrooms caused E. coli contamination on any Excel product." As we have seen, however, there was testimony that human waste could contaminate meat with the E. coli pathogen.
¶ 46 The trial court also opined that the "other acts" were "relevant," the second part of the Sullivan analysis. It also implicitly held that the probative value of the "other acts" was not, to use the language of WIS. STAT. RULE 904.03, "substantially outweighed by the danger[s]" set out in the rule, noting that "all of the three factors in the Sullivan analysis apply here." The trial court did not erroneously exercise its discretion in denying Excel's motion in limine seeking to exclude the "other-acts" evidence.
¶ 47 Excel wanted to introduce evidence that some patrons at one of the E &
We set out Excel's offer-of-proof in full because an offer of proof is critical to a trial court's determination whether to receive or exclude evidence, as well as any appellate review. Thus WIS. STAT. RULE 901.03(1) provides:
(Paragraphing altered.) See also State v. Robinson, 146 Wis.2d 315, 329, 431 N.W.2d 165, 170 (1988) (Offer of proof requires an "evidentiary hypothesis underpinned by a sufficient statement of facts to enable [a] court to conclude with reasonable confidence that the evidentiary hypothesis could be sustained.").
¶ 48 The trial court denied Excel's motion to receive the Norovirus evidence, noting that "this is a trial about E. coli; it is not a trial about anything else." Further, the trial court opined that insofar as the offer-of-proof indicated that there might have been improper food handling at the E & B Sizzler restaurant, the evidence, if probative, was cumulative: "And in terms of in general what Excel might regard as sloppy practices in either of the Sizzler restaurants, there is plenty already with all the health department reports and the citation, as well as the careful, thorough cross-examination of the E & B witnesses." This is paradigm of a careful balancing under WIS. STAT. RULE 904.03 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.") The trial court did not erroneously exercise its discretion in denying Excel's motion to inject the Norovirus matter into the trial.
¶ 49 Excel asserts that "[g]iven the multiple trial errors, the real controversy was not tried." It points to matters that we have already decided were not trial-court error: receipt of the "other-acts evidence"; exclusion of the Norovirus evidence; not excluding parts of Schwochert's testimony; and exclusion of Dr. Singh's aerosolization testimony. Although WIS. STAT. § 752.35 gives us discretion to order a new trial if it appears from the Record that: (1) "the real controversy has not been fully tried" or; (2) "it is probable that justice has for any reason miscarried," Vollmer v. Luety, 156 Wis.2d 1, 16, 456 N.W.2d 797, 804 (1990), use of that section is reserved for "exceptional cases," State v. Cuyler, 110 Wis.2d 133, 141, 327 N.W.2d 662, 667 (1983). We will not order a new trial under § 752.35 where the request is based on contentions that we have already rejected, as Excel asks us to do. See State v. Arredondo, 2004 WI App 7, ¶ 56, 269 Wis.2d 369, 405, 674 N.W.2d 647, 663-664. Excel's call for a new trial under § 752.35 is without merit.
¶ 50 Our standard of review is plain:
State v. Ellington, 2005 WI App 243, ¶ 7, 288 Wis.2d 264, 272, 707 N.W.2d 907, 911 (quoted sources omitted).
¶ 51 Excel complains that the trial court told the jury:
This accurately stated the law, see Deminsky v. Arlington Plastics Machinery, 2003 WI 15, ¶ 21, 259 Wis.2d 587, 604-605, 657 N.W.2d 411, 420 (recognizing, however, that although the duty to sell a product that is not unreasonably dangerous may not be delegated, ultimate financial liability can be shifted to another via an indemnity agreement), especially since here, as we have already pointed out, Excel could not under the law sell contaminated meat. Excel complains, however, that the "instruction
As we have seen, the jury apportioned causal negligence for the E. coli-contamination between Excel and E & B, and found that Sizzler USA Franchise, the franchisor, was not negligent at all. On our de novo review of the legal matter in the instructions, we agree that the trial court fully and thoughtfully exercised its discretion in telling the jury about standards it had to apply.
¶ 52 Excel complains that the trial court did not put on the verdict or tell the jury that the Kriefall plaintiffs settled the case for $8.5 million, pointing out that ordinarily a jury is asked to determine whether a settlement is reasonable. See United States Fidelity & Guaranty Co. v. Milwaukee & Suburban Transport Corp., 18 Wis.2d 1, 13, 117 N.W.2d 708, 715 (1962) ("The joint tort-feasor's liability [in contribution] is based in part on the reasonableness of the settlements. To find whether the settlements were reasonable is properly within the scope of the jury. Any competent evidence is admissible showing the amounts of the settlements or their reasonableness and, likewise, their unreasonableness."). The trial court recognized the general rule, but determined that as a matter of law the $8.5 million was not reasonable: "The evidence of Brianna Kriefall's pain and suffering is not sufficient to support $8.5 million in recovery. No reasonable jury could make that determination. Even if you add 500,000 for the
¶ 53 It is axiomatic that a trial court may only let the jury decide an issue if there is evidence in the Record that would support the answer sought by the proponent. See Berner Cheese Corp. v. Krug, 2008 WI 95, ¶ 66, 312 Wis.2d 251, 280, 752 N.W.2d 800, 815. In essence, the decision the trial court must make is akin to a decision whether to grant or deny a motion for summary judgment, where the proponent must show that there is enough evidence to get a trial on an issue. See Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis.2d 281, 291-292, 507 N.W.2d 136, 140 (Ct.App.1993) (burden of demonstrating sufficient evidence to go to trial on party who has burden of proof on issue at trial). Here, the trial court determined that there was not sufficient evidence to support an $8.5 million award to the Kriefalls. Although Excel says this was error, it does not even attempt to show that there was sufficient evidence to support an $8.5 million award. Thus it has not shown that the trial court erred, whether our review of that issue is de novo (as it would be in a review of a decision to grant or deny summary judgment—see Flejter v. West Bend Mut. Ins. Co., 2010 WI App 174, ¶ 5, 330 Wis.2d 721, 727, 793 N.W.2d 913, 915) or deferential.
¶ 54 Further, as we have already seen, whether to receive evidence is within the trial court's discretion and subject to the balancing required by WIS. STAT. RULE 904.03. The trial court in essence also determined under the unique circumstances it identified that allowing the jury to see what the Kriefalls were paid to settle their claims, and allow argument as to whether that amount was right or fair or justified, would divert the jury's real task of deciding what was a reasonable settlement. The trial court did not erroneously exercise its discretion in making this determination.
¶ 55 E & B contends that there was insufficient evidence for the jury to find that it was causally negligent. It focuses on what it argues was the lack of expert testimony tying the E. coli-contamination of E & B's non-meat products to what E & B did or did not do to. We disagree.
¶ 56 Our review of a jury's verdict is circumscribed by the realization that a jury is better able to get a sense of the trial's flow and the witness's credibility than is an appellate court faced with a transcript:
Kuklinski v. Rodriguez, 203 Wis.2d 324, 331, 552 N.W.2d 869, 872 (Ct.App.1996) (other than to RULE 805.14(1), citations and quoted sources, omitted). Further, in reviewing a verdict to ascertain whether, under our very narrow scope of review, there is sufficient evidence to support a verdict, we must also see whether circumstantial evidence supports the verdict—this is the rule even in criminal cases, where, of course, a jury may not find a defendant guilty unless the evidence proves the defendant's guilt beyond a reasonable doubt (as opposed to the much lower preponderance-of-the-evidence standard applicable here). See State v. Poellinger, 153 Wis.2d 493, 507-508, 451 N.W.2d 752, 758 (1990). Thus, Poellinger teaches "that circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence." Id., 153 Wis.2d at 501, 451 N.W.2d at 755. Finally, in assessing a jury verdict we must look for evidence that will support it, not overturn it. Reuben v. Koppen, 2010 WI App 63, ¶ 19, 324 Wis.2d 758, 774, 784 N.W.2d 703, 711. There was no "complete failure of proof" supporting the jury's finding that E & B was contributorily negligent; indeed the evidence was far more than sufficient.
¶ 57 As material, our analysis has two parts: (1) Whether there was sufficient evidence that E & B knew or should have known that using knives and cutting boards to both prepare raw meat and foods that would not be cooked—here, fruits and vegetables—could result in dangerous cross-contamination, that is the contamination of the fruits and vegetables from pathogens on the meat; and (2) Whether there was sufficient evidence that E & B permitted its employees to use knives and cutting boards for both raw meat and fruits and vegetables. The answer to both these inquiries is "yes."
¶ 58 The jury heard from John Antosiewicz, who had extensive experience in the restaurant business. He was:
Antosiewicz was a "franchise consultant" with Sizzler in 1999 and 2000. As such, he "was dealing with" the E & B Sizzler restaurants within "[a] year or two" before the E. coli outbreak at the restaurants in the summer of 2000. He testified that his job in connection with the E & B Sizzler restaurants was "[t]o visit the restaurants,
Antosiewicz explained that separation was necessary, "[b]ecause different foods contain different bacterias and can be transmitted into other foods and sometimes bacteria can grow more rapidly and, you know, in certain types of foods." He said that he knew all of this before "the summer of 2000." Antosiewicz also testified that in 1998, "Sizzler" told its franchisees to follow the Hazard Analysis and Critical Control Point in connection with the handling food.
¶ 59 E & B does not question Antosiewicz's ability to testify under the then extant version of WIS. STAT. RULE 907.02.
The jury thus had sufficient evidence that restaurant managers either knew or should have known that meat should be kept away "from lettuce and salad bar" foods.
¶ 60 Further, although Antosiewicz was a qualified expert witness, "expert testimony is required only if the issue to be decided by the jury is beyond the general knowledge and experience of the average juror." State v. Whitaker, 167 Wis.2d 247, 255, 481 N.W.2d 649, 652 (Ct. App.1992) (emphasis by Whitaker). The need to keep raw meat away from foods that are not going to be cooked is something within an average juror's "general knowledge and experience," especially given the drumbeat of warnings about cross-contamination that pervades the media, a matter about which we can take judicial notice. See WIS. STAT. RULE 902.01(3) ("A judge or court may take judicial notice, whether requested or not.").
¶ 61 The jury also had extensive evidence that E & B did not heed the warnings on the Excel label and keep separate from salad-bar items equipment used to prepare raw meat. Thus, a report prepared by the Communicable Disease Epidemiology Section of the Wisconsin Division of Public Health's Bureau of Communicable Diseases in the Wisconsin Department of Health and Family Services, indicates that its investigators looking into the "Outbreak of Gastrointestinal Illness at the Mayfair Road Sizzler Restaurant, Wauwatosa, WI; July—August, 2000" either saw or were told by E & B employees:
Among other things, the Report recommended that "Designated cutting boards should be used, cleaned and stored separately. Interchangeable use should be discontinued." (Underlining in original; emphasis added.).
¶ 62 Mary Proctor, Ph.D., who, when she was a supervisor in the Communicable Disease Epidemiological Section, had a significant role in preparing the reports in connection with the gastrointestinal-illness outbreaks at the E & B Sizzler restaurants, testified that taco meat, which tested positive for E. coli 0157:H7, "was the source for the 0157:H7 in the [Layton Avenue E & B Sizzler] restaurant." As we have seen, the Report indicated that an E & B manager admitted that the Hobart mixer was used to both grind taco meat and whip "butter/cream." Dr. Proctor also testified:
Dr. Porter then explained why the food-handling layout of both the E & B Sizzler restaurants was unsafe:
There was more than enough evidence to support the jury's verdict that E & B was contributorily negligent.
¶ 63 E & B contends that because, as Deminsky recognized, a manufacturer of an unsafe product cannot delegate to a buyer its duty to make a safe product, Excel's undertaking to produce pathogen-free meat relieves E & B from its causal contributory negligence for the illness suffered by E & B's patrons. See Deminsky, 2003 WI 15, ¶ 21, 259 Wis.2d at 604-605, 657 N.W.2d at 420. E & B seeks to have us "hold that, as a matter of law, Excel may not reduce its indemnification obligation under the 1993 Agreement because it delivered adulterated meat." This contention is a non-starter.
¶ 64 First, as we have seen, the 1993 Hold Harmless Agreement specifically provided that "[Excel]'s indemnification obligations hereunder shall not apply to the extent that Claims are caused by the negligent acts or omissions of [Sysco] or any other third party." (Emphasis added.) As we have already seen, E & B does not contend that it is not an "other third party." The jury found that to "the extent" of twenty-percent, E & B's negligence caused the injuries (or, as the Agreement refers to such matters, "Claims").
¶ 65 Second, holding E & B twenty-percent responsible for the "Claims" does not impose a duty on it to make Excel's meat safe; holding E & B causally negligent merely recognizes that E & B's negligence created the opportunity for Excel's unsafe meat to actually cause harm. Here, the jury found a confluence of events jointly caused the "injuries": E. coli-tainted meat and E & B's unsafe food handling. E & B's contention that it is relieved as a matter of law of its contributory responsibility for the "Claims" is without merit.
¶ 66 As we have seen, under the Hold Harmless Agreement, Excel promised to indemnify E & B for "Claims" but only "to the extent" that the damages for those "Claims" were not caused by E & B's negligence. Pursuant to this undertaking, Excel settled claims asserted by the Kriefall plaintiffs, and sought contribution from E & B because, Excel contended, Excel paid more than its fair share (100% rather than 80%) in light of the jury's finding that E & B was twenty-percent causally negligent with respect to those claims. E & B argues that the trial court erroneously refused to dismiss Excel's claim for contribution in connection with the Kriefall settlement, contending, as phrased by its main brief on this appeal, that "Excel reserved only the right to reduce its indemnification obligation—to the extent that it proves third-party [E & B] causal negligence." We disagree.
Kafka v. Pope, 194 Wis.2d 234, 242-243, 533 N.W.2d 491, 494 (1995) (footnote and internal citation omitted). Thus, a party that pays more than it contracted to pay under a guaranty may recover in contribution against the other party to the guaranty if the first party paid more than its fair share of the obligation.
¶ 67 E & B disputes the rule we see in Kafka, however, and relies on RESTATEMENT (SECOND) TORTS § 866A(4) for the proposition that any indemnification agreement cuts off any right to contribution: "When one tortfeasor has a right of indemnity against another, neither of them has a right of contribution against the other." But this only applies when the "indemnity" is for the full amount of the liability, which, of course, is not the case here. See RESTATEMENT (SECOND) TORTS § 866A cmt. 4 ("Indemnity, which shifts the entire loss from one tortfeasor to another, and contribution, which shifts only a proportionate share of that loss, are mutually inconsistent remedies. When there is a right of indemnity, it controls, and neither tortfeasor has a right of contribution against the other."). This is the same reason why Callahan v. A.J. Welch Equipment Corp., 36 Mass.App.Ct. 608, 634 N.E.2d 134 (1994), relied on by E & B also is not helpful. Callahan denied contribution because the party seeking contribution agreed to totally indemnify the party from whom it sought contribution; a Massachusetts statute made total indemnity and contribution mutually exclusive remedies. Id., 634 N.E.2d at 138 ("General Laws c. 231B, § 1(e) simply provides that there is no contribution in cases where a right of indemnity exists."). We set out the entire section in the footnote.
¶ 69 E & B contends that the trial court erred in not concluding that the 1993 Hold Harmless Agreement covered E & B's business losses and not just money that E & B might owe in connection with claims asserted by injured persons. We disagree.
¶ 70 As we have seen, under the Hold Harmless Agreement, as material to this part of the opinion, Excel "agree[d] to defend, indemnify and hold harmless [E & B] from all actions suits, claims and proceedings ("Claims"), and any judgments, damages, fines, costs and expenses (including reasonable attorneys' fees) resulting therefrom." As we have also seen, the Agreement covered claims:
E & B's contention that the Agreement is not limited to "damages for the injury, illness and/or death of any person or damage to property," is belied by the words, which set the parameters of what the Agreement covered because the "damages, fines, costs and expenses (including reasonable attorneys' fees)" is not a stand-alone listing, but, rather, is tied to "resulting therefrom." (Emphasis added.) This means, as the trial court pointed out, that the items in the listing must be consequential to personal-injury or property-damage claims. On our de novo review of the trial court's application of the Agreement's clear language, we affirm its denial of E &
¶ 71 E & B sought to amend its complaint some three years after the time for doing so expired. The trial court, however, did not deny E & B's motion because it was untimely, but, rather, denied it because it viewed the implied-warranty claim E & B sought to assert against Excel as not a "viable cause of action." On our de novo review of this legal issue, we agree.
¶ 72 "Wisconsin has always required privity of contract in an action for a breach of implied warranty." Dippel v. Sciano, 37 Wis.2d 443, 449, 155 N.W.2d 55, 57 (1967). Wisconsin still does, see Northridge Co. v. W.R. Grace and Co., 162 Wis.2d 918, 938 n. 15, 471 N.W.2d 179, 187 n. 15 (1991), and we are bound, of course, by supreme court decisions, State v. Jones, 2010 WI App 133, ¶ 21, 329 Wis.2d 498, 510, 791 N.W.2d 390, 396. Although E & B was a foreseeable, indeed, an intended, recipient of the Excel meat, Excel's contracts were with Sizzler International and Sysco, not E & B: The 1997 Continuing Guarantee was between Excel and Sizzler International, and, as we have already seen, the Continuing Guarantee excludes liability for "consequential damages." The 1993 Hold Harmless Agreement was between Excel and Sysco, and was also for the benefit of Sysco's customers, which includes E & B. Although, of course, this would make E & B an intended beneficiary of the Hold Harmless Agreement, E & B was already covered by its terms. Third-party beneficiaries (and E & B asserts that it is one), succeed to the rights of the contract that is intended to benefit them, and nothing more. See Milwaukee Area Technical College v. Frontier Adjusters of Milwaukee, 2008 WI App 76, ¶ 20, 312 Wis.2d 360, 377, 752 N.W.2d 396, 404 ("A person may enforce a contract as third-party beneficiary if the contract indicates that he or she was either specifically intended by the contracting parties to benefit from the contract or is a member of the class the parties intended to benefit."). It would also distort the law if an intended beneficiary of an express warranty that excluded damages sought by the intended beneficiary (as does the Continuing Guarantee) could boot-strap entitlement to those damages through that express warranty. Stated another way, as recognized by AT & T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), it makes no sense to have something (in our case, an express warranty; in AT & T Mobility, a statute) that negates a remedy only to have that something be a conduit for the enforcement of that remedy. See id., 563 U.S. at ___, 131 S.Ct. at 1748 ("In other words, the act cannot be held to destroy itself.") (internal quotation marks and quoted sources omitted) (applying the Federal Arbitration Act, 9 U.S.C. §§ 1-16). We affirm the trial court's denial of E & B's motion to amend.
¶ 73 By offer of settlement dated March 23, 2007, sent to Excel, Secura offered "to settle all claims asserted against" Excel for $1,850,000. By virtue of that offer, Secura seeks 12% interest on $800,000 under Wis. Stat. § 807.01(4).
¶ 74 Sizzler USA Franchise complains that the trial court improperly enforced the provision in the 1997 Continuing Guaranty that excluded "incidental or consequential damages," claiming that, contrary to the trial court's conclusion, the exclusion was "unconscionable" and, therefore, not enforceable. In light of our determination that Sizzler USA Franchise may recover its incidental and consequential damages via the implied-warranty route mapped by the Uniform Commercial Code, discussed earlier, whether the trial court correctly upheld the exclusion clause in the Continuing Guaranty is moot. See Gross, 227 Wis. at 300, 277 N.W. at 665 (only dispositive issue need be addressed).
¶ 75 Sizzler USA Franchise also contends that the trial court erred when it would not apply equitable indemnity to permit Sizzler USA Franchise to get from Excel the $1.5 million it paid upfront to the
The trial court then analyzed whether it should "as a separate and distinct matter of law and exercise of discretion," "make a determination that in fairness and equity that Sizzler [USA Franchise] is entitled to reimbursement of that money along with its reasonable attorney fees." The trial court held that Sizzler USA Franchise was not entitled to the reimbursement. The trial court did not rely on the jury's rejection of the claim, and Excel does not argue that the jury's rejection makes equitable indemnity unavailable.
¶ 76 Equitable indemnity kicks in when "`one person is exposed to liability by the wrongful act of another in which he does not join.'" Brown v. LaChance, 165 Wis.2d 52, 64, 477 N.W.2d 296, 302 (Ct. App.1991) (quoted source omitted). As we have seen, the jury vindicated Sizzler USA Franchise's contentions that it was not liable for the E. coli-contamination and the resulting death of Brianna Kriefall and the illnesses of the other patrons of the two E & B Sizzler restaurants. It thus can be fairly said that the jury determined that Sizzler USA Franchise did "not join" in the "wrongful act[s]" of the others found to be causally negligent for the contamination.
¶ 77 Sizzler USA Franchise paid the $1.5 million pursuant to a document titled "Advance Partial Payment Pursuant to Sec. 885.285 Wis. Stats." (Uppercasing omitted.)
When asked whether the company "ultimately ma[d]e a payment to the Kriefalls," Sizzler USA Franchise's chief executive officer replied: "We did." Sizzler USA Franchise paid the $1.5 million. When asked what was Sizzler USA Franchise's understanding of what it was getting for its money, the chief executive officer replied: "We got a settlement."
¶ 78 The Advance Partial Payment agreement with the Kriefalls recited that Sizzler USA Franchise "desires to make an Advance Payment to the Kriefall Plaintiffs," and recited the basic facts of the outbreak (the Excel meat sold to the E & B Sizzler restaurant where the Kriefalls ate the contaminated food, and that Sizzler USA Franchise "expressly denie[s]" "liability and negligence" for the Kriefall's injuries). It then provided:
¶ 79 The Advance Partial Payment agreement also recited that if the Kriefalls did not prevail in their lawsuit against Sizzler USA Franchise, they could keep the $1.5 million nevertheless. It also recited that the money was intended as "a partial advance payment for legal damages sustained by the Kriefalls," and was "not a release of any cause of action of the Kriefalls or any partial cause of action of the Kriefalls and shall not be construed to be a release of any kind or nature."
¶ 80 Excel invokes the principle that a mere volunteer may not get equitable indemnity. See Milwaukee Mut. Ins. Co. v. Priewe, 118 Wis.2d 318, 323, 348 N.W.2d 585, 587 (Ct.App.1984) ("`Indemnification shifts the entire loss from one person who has been compelled to pay it to another who on the basis of equitable principles should bear the loss.'") (quoted source omitted) (payment made because of obligation imposed by insurance contract). But someone who pays because he or she might be liable, is not a volunteer. Voge, 181 Wis.2d at 731, 512 N.W.2d at 751 (Insurer who was potentially liable is not a volunteer if it pays before the determination
¶ 81 It may be that the money Sizzler USA Franchise paid so that members of Brianna Kriefall's family could attend her funeral was voluntary largess. But, as evident from both the Advance Partial Payment agreement and Sizzler USA Franchise's potential liability, Sizzler USA Franchise paid the $1.5 million to buy a modicum of financial peace and not as unalloyed corporate charity. Accordingly, the trial court erred in rejecting Sizzler USA Franchise's equitable indemnity claim.
¶ 82 Excel also argues that if we should hold that Sizzler USA Franchise has an equitable-indemnity claim against Excel, the claim should be reduced by twenty-percent because Excel was only eighty-percent contributorily negligent. We disagree. As between Sizzler USA Franchise and Excel, Excel was one-hundred percent responsible; the eighty-percent/twenty-percent allocation of the causal negligence for the E. coli-contamination was between Excel and E & B.
¶ 83 Sizzler USA Franchise seeks the lawyer fees it spent defending itself in these E. coli-contamination matters. It contends that the trial court erred when it rejected Sizzler USA Franchise's request. Sizzler USA Franchise argues that Excel should be forced to reimburse Sizzler USA Franchise for its legal expenses because Excel's shipment of contaminated meat ensnared Sizzler USA Franchise in this litigation even though the jury found that Sizzler USA Franchise did nothing wrong. We disagree.
Community Care Organization of Milwaukee County, Inc. v. Evelyn O., 214 Wis.2d 434, 437, 571 N.W.2d 700, 702 (Ct. App.1997) (quoted source omitted). This statement of the law ultimately comes from Weinhagen v. Hayes, 179 Wis. 62, 66, 190 N.W. 1002, 1003 (1922), which explained that a rule that permitted a winning party to get his or her fees from the
Id., 179 Wis. at 66, 190 N.W. at 1003-1004. Sizzler USA Franchise's enmeshment in this lawsuit was not as someone collateral to the dispute of others, from whom Sizzler USA Franchise seeks its legal expenses, any more than a driver in a chain-reaction collision is collateral to the dispute between the injured plaintiff and those whom the plaintiff contends negligently caused his or her injuries, even though that driver is ultimately determined to be without fault. We affirm the trial court's refusal to let Sizzler USA Franchise recover its legal expenses from Excel.
¶ 84 We affirm the judgments and orders except: (1) We reverse the trial court's order permitting E & B and Secura to recover from Excel the money Federal Insurance paid to Secura; and (2) We reverse the trial court's order rejecting Sizzler USA Franchise's equitable indemnity claim against Excel.
Judgments and orders affirmed in part and reversed in part.
As a matter of historical interest, the author of Wyatt Industries, Inc. v. Publicker Industries, Inc., 420 F.2d 454 (5th Cir.1969), was G. Harold Carswell, whom Richard M. Nixon unsuccessfully nominated for a seat on the United States Supreme Court. One of the other members of the Wyatt Industries panel was Homer Thornberry, whom Lyndon Baines Johnson unsuccessfully nominated for a seat on the United States Supreme Court.
The Pierringer release executed by a non-Kriefall claimant that is in the Record, is headed "Confidential Pierringer Release and Indemnification Agreement" (uppercasing omitted), it is between a non-Kriefall claimant, whose name was redacted, on the one hand, and E & B and Sizzler USA Franchise and their insurers, Secura and Federal Insurance Company, on the other hand. In the Release, the claimant "releases and discharges the Released Parties ... only from that fraction, percentage, or portion of all liability accrued and hereafter to accrue against the released parties." It also releases "that portion of the total amount of [the claimant's] damages and losses which may have been caused by any acts or omissions of E & B or Sizzler USA [Franchise] as may be determined in any subsequent trial. . . . It is Claimants' act and intention to satisfy any judgment. . . as the ca[us]al negligence or responsibility of E & B, Sizzler USA [Franchise] and the Insurers is adjudged to be of all causal negligence or responsibility."
WISCONSIN STAT. RULE 904.03 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
