2009AP1212 & 2010AP491 Kriefall v. Sizzler USA Franchise, Inc.

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Torts
Equitable indemnification

All sums that a defendant paid to settle a tort case are involuntary and subject to reimbursement.
“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 of liability.); Perkins v. Worzala, 31 Wis. 2d 634, 637–638, 143 N.W.2d 516, 518 (1966) (Insurance company that paid a non-party when its insured was ‘potentially liable’ to the non-party was not ‘a mere volunteer,’ and the insurance company could, therefore, get indemnity from a 100%-negligent tortfeasor.).”

“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.”

“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.”

Affirmed in part and Reversed in part.

Publication in the official reports is recommended.

2009AP1212 & 2010AP491 Kriefall v. Sizzler USA Franchise, Inc.

Dist. I, Milwaukee County, Kahn, J., Fine, J.

Attorneys: For Appellant: Gierke, Nora E., Milwaukee; Kennedy, Rebecca Frihart, Milwaukee; Michaelides, Barbara I., Chicago; Carstensen, Paula M., Chicago; Reppas, Agelo L., Chicago; For Respondent: Bordow, David A., Milwaukee; Klingaman, Russell A., Milwaukee; Fiedler, Noah D., Milwaukee; Gordon, Frederic, San Diego, CA

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