Contracts — indemnification

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Wisconsin Supreme Court

Civil

Contracts — indemnification

A restaurant which was not found responsible for an e-coli outbreak is entitled to indemnification and damages from the responsible parties, except for attorney fees.

“We affirm the decision of the court of appeals on all five issues presented. First, we hold that Sizzler is entitled to recover consequential damages for Excel’s breach of implied warranties in the parties’ meat supply contract, notwithstanding limiting language in the Continuing Guaranty. Second, Sizzler also is entitled to indemnity from Excel for the entirety of Sizzler’s $1.5 million advance partial payment to the Kriefall family because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination. Third, pursuant to the Hold Harmless Agreement, Excel is required to indemnify E&B for payments E&B made to certain non-Kriefall plaintiffs in exchange for Pierringer releases; however, Excel’s obligation extends only so far as its apportioned liability, which is 80 percent. Fourth, Excel is not required to indemnify E&B for payments that Federal Insurance made on E&B’s behalf in settling the non-Kriefall plaintiffs’ claims. Fifth, and finally, notwithstanding the jury’s determination that Sizzler was zero percent responsible for the E. coli contaminated food that caused the illnesses of so many people, Sizzler may not recover attorney fees from Excel because the exception to the American Rule stated in Weinhagen does not apply.”

Affirmed.

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

Roggensack, J.

Attorneys: For Defendant/Appellant/Cross-Respondent/Petitioner: Gierke, Nora E., Wauwatosa; Kennedy, Rebecca Frihart, Milwaukee; Michaelides, Barbara I., Chicago; Carstensen, Paula M., Chicago; Reppas, Agelo L., Chicago; For Defendant
Respondent/Cross-Appellant/Cross Petitioner: Bordow, David A., Milwaukee; Klingaman, Russell A., Milwaukee; Fiedler, Noah D., Milwaukee; Gordon, Frederic, San Diego; Benito, Edward N., San Diego