“Here, then, we conclude that, regardless of whether the parties had a binding contract on November 3, 1995, or three days later when Image signed and returned the sales order, Image expressly agreed to the indemnification provision by signing and returning the form containing the provision. The ‘express conversation’ described in Air Products, 58 Wis. 2d at 214, occurred when Arlington said to Image, through the language of its sales order, ‘we want our contract for the sale of this machine to include a very broad indemnification agreement in our favor,’ and Image replied, ‘o.k.,’ by signing the order form below the word ‘AGREED’ and returning it to Arlington. The fact that Harm may not have read the terms and conditions spelled out on the order form does not relieve Image from being bound by them, there being no issue of fraud, ambiguity or mutual mistake present on these facts.”
We further conclude that there is no public policy basis on which to invalidate the indemnity provision, nor is the provision inconspicuous or unconscionable.
However, we agree with Image that it cannot be bound to the terms of Arlington’s subsequent settlement with the injured plaintiff and Image is thus entitled to litigate the extent of Arlington’s liability for plaintiff’s damages. In short, we cannot conclude on the present record that Image intentionally evaded an opportunity to litigate crucial issues, such that it should now be bound by Arlington’s confessed judgment.
Reversed and remanded.
Recommended for publication in the official reports.
Dist III, Barron County, Brunner, J., Deininger, J.
For Appellant: Robert E. Salmon, Laura J. Hanson, Minneapolis, Minn.
For Respondent: Raymond L. Hoel, Cornell; David E. Richie