Each year, the Court of Appeals for the Seventh Circuit and Wisconsin’s two federal district courts issue decisions interpreting Wisconsin statutes and common law. Although federal court interpretations of Wisconsin law are not binding on Wisconsin courts, they influence how Wisconsin law develops, including in cases pending in Wisconsin state appellate courts and circuit courts.

This article reviews nine recent federal decisions interpreting and applying Wisconsin statutes and common law in the areas of tort law, contract law, business law, civil procedure, and insurance law.

Wisconsin Tort Law

Products Liability – Learned Intermediary Doctrine. In In re Zimmer NextGen Knee Implant Products Liability Litigation,¹ the U.S. Court of Appeals for the Seventh Circuit addressed an issue that the Wisconsin appellate courts had not previously considered – whether Wisconsin law recognizes the “learned intermediary” doctrine in products-liability cases. The doctrine generally holds that a medical drug or device manufacturer satisfies its duty to warn of the risks of the drug or device if it provides the warnings to the physician or medical professional who recommends or prescribes the drug or device to a patient.²

The plaintiff underwent knee replacement surgery in 2008 at a Wisconsin hospital and received a synthetic knee implant manufactured by Zimmer.³ Several years later, he began experiencing pain in the knee. Testing revealed that a component in the implant had loosened, which required a second surgical procedure to address.⁴

The plaintiff sued Zimmer in 2013, alleging products-liability claims premised on defective design, defective manufacture, and failure to warn.⁵ Zimmer moved for summary judgment and to exclude the testimony of the plaintiff’s expert on the issue of causation.⁶ The district court excluded the expert’s testimony and ruled that the learned intermediary doctrine barred the plaintiff’s claim to the extent it was premised on failure to provide warnings to him directly.⁷

Lacking guidance from the Wisconsin Supreme Court, the court of appeals’ task was to determine whether Wisconsin’s highest court would adopt the doctrine and apply it to failure-to-warn claims involving surgical implants.⁸ The court of appeals concluded that the Wisconsin Supreme Court would likely adopt the doctrine. The court identified two reasons for its conclusion.

First, the court of appeals observed that the doctrine has been adopted by a clear majority of jurisdictions.⁹ Adopting the doctrine would thus place Wisconsin law within the mainstream of American jurisprudence on the issue.

Second, the court of appeals explained that the rationale underlying the doctrine applied more forcefully in cases involving surgical implants because patients are highly unlikely to access and have such devices implanted except when under the care of a surgeon.¹⁰

Having concluded that the Wisconsin Supreme Court would likely adopt the doctrine, the court of appeals affirmed the district court’s grant of summary judgment on the plaintiff’s warnings claim to the extent it was premised on a failure to warn him directly.¹¹

Products Liability – Compliance with Governmental Standards. In 2011, the Wisconsin Legislature enacted Wis. Stat. section 895.047, which governs products-liability actions.¹² Among other things, the statute provides that a product manufacturer is entitled to a rebuttable presumption that its product was not defective at the time of sale if there is evidence that the product “complied in material respects with relevant standards, conditions or specifications adopted or approved by a federal or state law or agency[.]”¹³ Wisconsin’s federal district courts recently examined this defense, and their decisions provide some guidance as to how the defense may be applied.

In Kilty v. Weyerhaeuser, 3M raised the defense in a motion seeking summary judgment on strict-liability and negligence claims.¹⁴ The plaintiffs alleged that two former Weyerhaeuser employees contracted mesothelioma because the 3M respirator masks they used on the job did not adequately protect them from exposure to asbestos fibers. 3M had designed the respirators to protect against exposure to asbestos, and the respirator had been certified repeatedly for that purpose by the National Institute of Occupational Safety and Health (NIOSH) and the U.S. Bureau of Mines under regulations enacted by those entities governing respirator performance and quality control.¹⁵

To rebut the presumption of nondefectiveness, the plaintiffs presented articles, internal 3M memos, a NIOSH audit, and internal 3M testing results to establish two points: 1) the respirator used by the former employees failed to meet required “pressure drop” values, which could decrease its ability to prevent exposure to asbestos fibers; and 2) 3M had struggled over a period of years to bring the respirator into compliance with regulatory requirements concerning pressure drop.¹⁶ After reviewing this evidence, Judge Conley of the Western District concluded that the plaintiffs had created a genuine issue of fact concerning whether the masks complied with regulations governing pressure drop and denied summary judgment.

Chief Judge Griesbach of the Eastern District also denied summary judgment to a manufacturer that invoked the regulatory compliance presumption in Merryfield v. KLI Inc.¹⁷ In Merryfield, the plaintiff sought to recover for personal injuries sustained when the top cap of a stepladder separated from the ladder’s front rails, causing him to fall. On summary judgment, the defendants argued that they were entitled to the presumption of nondefectiveness because the ladder complied with an ANSI standard at the time it was made, which satisfied an OSHA regulation governing ladders.¹⁸

The district court rejected the defendants’ argument because they had failed to present sufficient evidence of compliance. The defendants offered only the testimony of their expert, who had performed ladder testing 15-20 years earlier, that the ladder complied with the standard. The district court found this evidence insufficient because the expert offered no documentation of the testing and could not say whether the specifications of the ladder he tested were the same as the ladder at issue.¹⁹ These critiques of the expert’s testimony made it feasible that a jury could find the presumption inapplicable. In addition, the plaintiffs had, in the district court’s view, brought to bear evidence sufficient to rebut the presumption at trial.²⁰

Governmental Indemnity. Section 895.46(1)(a) of the Wisconsin Statutes requires states and political subdivisions to indemnify public officers and employees against liability for acts committed while carrying out duties that are within the scope of their employment.²¹ The Seventh Circuit examined the “scope of employment” element in this statute in Martin v. Milwaukee County.²²

Martin brought claims against a prison guard who had repeatedly sexually assaulted her while she was incarcerated. She also sought indemnification from Milwaukee County under Wis. Stat. section 895.46(1)(a), contending that the guard’s repeated assaults occurred while he was on duty and were within the scope of his employment. The district court permitted the indemnity claim to go to trial, at which a jury sided with Martin and awarded damages of $6.7 million.²³

The Seventh Circuit reversed, concluding that Martin had failed to present evidence from which a reasonable jury could conclude that the guard acted within the scope of his employment when he assaulted her. The panel began its analysis by reviewing several Wisconsin Supreme Court decisions that had defined the contours of the “scope of employment” element.²⁴ From these decisions, the panel identified the principles that would guide its analysis.

First, acts are within the scope of employment if they are closely connected to the employee’s job duties and can reasonably be regarded as methods, even though improper, to achieve the employment’s objectives.²⁵ Second, the employee’s intent matters: an employee does not act within the scope of his or her employment if the employee’s acts are different in kind, time, or space from what he or she is authorized to do or if the employee does not intend, at least in part, to serve the employer’s interests.²⁶

Having identified the employee’s purpose and intent as keystones of the scope inquiry, the panel examined the evidence presented at trial. After acknowledging that the sexual assaults occurred at times and places within the limits of the guard’s employment, the panel compared the purpose and intent of the guard to the circumstances and legitimate objectives of his employer.²⁷

The panel determined that no evidence presented at trial could reasonably support a conclusion that assaults were closely connected to the guard’s duties or that his actions were intended to benefit his employer. The guard was specifically forbidden by the county from having any sexual contact with inmates, regardless of consent, and was trained to avoid or reject opportunities to engage in sexual conduct with inmates. The panel also highlighted the absence of evidence suggesting that sexual assaults were natural or ordinary incidents of the guard’s employment or were similar to the act of guarding inmates.²⁸

Next, the panel concluded that no evidence supported the conclusion that the guard had acted with the intent or purpose of benefitting the county. The panel noted that the guard took steps to conceal his activities and told the inmate he would be fired if he was caught. Though the guard may have acted with the intent of exerting power and control over the inmate, that intent did not bring his conduct within the scope of his employment.²⁹

The panel distinguished the case from cases involving excessive force because the use of force is sometimes a necessary incident to a law enforcement officer’s duties, whereas the sexual assaults “were not part of a spectrum of conduct that shades into permissible zones.”³⁰ The panel concluded by observing that requiring the county to indemnify the guard would not serve the underlying purpose of the statute – to enable public officials to perform their legitimate and authorized duties without fear of incurring liability.³¹

Wisconsin Contract Law – Duty of Good Faith and Fair Dealing

Wisconsin law implies a duty of good faith and fair dealing into every contract. In Betco Corp. Ltd. v. Peacock,³² the Seventh Circuit Court of Appeals considered the contours of that duty and the evidence necessary to establish a breach.

The case arose out of Betco’s purchase from the Peacocks of Bio-Systems, two “bioaugmentation” companies that manufactured products containing bacteria that break down various forms of waste. Before the sale closed, Betco visited Bio-Systems’ facilities, spoke with its employees, and reviewed its financials.

In the course of its due diligence, Betco learned that the levels of bacteria contained in Bio-Systems’ products were not always consistent, and that many of their customers required “certificates of analysis” verifying the bacteria levels at the time of sale.³³ Betco also asked one of the Peacocks to continue working at Bio-Systems’ plant after the sale, which he agreed to do.³⁴ The purchase closed in 2010; Betco paid the Peacocks $5 million upfront and set an additional $500,000 in escrow, which the Peacocks would receive two years later if the funds were not needed to address any problems that surfaced in that time.³⁵

One year after the closing, Betco learned of several problems with Bio-Systems’ operations. Some of Bio-Systems’ products were being shipped with bacteria levels below the level reflected on the accompanying certifications, and Bio-Systems’ sales force was reusing or falsifying some certificates. Notwithstanding these problems, Betco agreed to pay the escrowed amount to the Peacocks early at a discounted rate.³⁶

A year later, Betco sued the Peacocks, asserting that the Peacocks had breached the duty of good faith and fair dealing in the purchase agreement. The district court dismissed the claim against one of the Peacocks and, after a bench trial, ruled in favor of the other.³⁷

The Seventh Circuit began its analysis by explaining the contours of the duty and how it is breached. The duty of good faith concerns itself primarily with the expectations of the parties – what situation did they expect to find themselves in after making their bargain? The duty to act in good faith prevents a party from frustrating his or her counterpart’s expectations by complying with the “letter but not the spirit” of their agreement.³⁸ A breach occurs if a party acts in a manner that prevents his or her counterpart from receiving the benefits of the contract.³⁹

With the focus on Betco’s post-contractual expectations, the court of appeals agreed with the district court that Betco’s claim had two fatal flaws. First, the court determined that Betco’s post-sale expectation was to own a profitable company that would not receive complaints from customers about falsified product certificates. The court found that this expectation was satisfied – Betco did not present evidence that it did not receive “a profitable company free of consumer claims.”⁴⁰

Second, the panel emphasized that Betco knew before the sale closed that the bacteria levels in Bio-Systems’ products were not always consistent. This knowledge informed Betco’s expectation – it “knew that it could be acquiring flawed processes, and it must have expected that it might have to expend funds to make the bacteria yields consistent.”⁴¹ Thus, the nonconforming product that Bio-Systems produced after the closing “could not have destroyed Betco’s contractual expectations.”⁴²

Wisconsin Corporate Law – Successor Liability

Wisconsin law provides that the purchaser of a corporation’s assets does not ordinarily also assume its liabilities. This rule, and the exceptions to it, were recently applied by Judge Adelman of the Eastern District of Wisconsin in Burton v. American Cyanamid Co.⁴³

The plaintiffs filed suit against several companies for personal injuries stemming from their alleged ingestion of white-lead carbonate that had been incorporated into paint applied to their residences. One of the defendants, Atlantic Richfield, was sued in its capacity as the successor in liability to four corporations, one of which (ALPC) had formerly operated a lead-pigment plant. Atlantic Richfield sought summary judgment on the ground that a transaction in which another of its predecessor corporations, IS&R, had initially purchased all of ALPC’s outstanding stock and later acquired its assets and dissolved ALPC, did not result in the transfer of ALPC’s liabilities to IS&R. (After this transaction, Atlantic Richfield had become the successor to IS&R’s liabilities.)⁴⁴

The district court began its analysis by identifying four exceptions to the general rule of no successor liability.⁴⁵ The district court focused on one exception – when the transaction at issue amounts to a consolidation or merger of the buyer and seller corporations.

Finding no Wisconsin Supreme Court precedent that provided guidance on what constitutes a de facto merger, the district court looked to two decisions of the Wisconsin Court of Appeals. One had applied a multifactor analysis to the merger question that focused on the structure of the transaction and events following the transaction. The other case, though unpublished, had also emphasized the importance of examining how the sale was structured and whether the buyer continued the seller’s operations after the sale.⁴⁶ The district court determined that the Wisconsin Supreme Court would likely follow the guidance of these appellate decisions in applying the merger exception.

Following the appellate courts’ guidance, the district court determined that summary judgment for Atlantic Richfield was inappropriate. Although IS&R had initially purchased ALPC’s stock rather than its assets, the district court concluded that the Wisconsin Supreme Court would likely permit successor liability in situations in which the successor corporation acquired the predecessor’s stock and then its assets, assuming the other factors in the merger analysis were satisfied.⁴⁷

Wisconsin Fair Dealership Law

The Wisconsin Fair Dealership Law extends certain protections to business relationships that fall within the statute’s definition of a “dealership.” In Four Star Beauty Supply v. GIB LLC,⁴⁸ the Western District of Wisconsin court examined that definition in the course of reviewing an arbitration award.

GIB, a manufacturer of hair-care products, enlisted Four Star to distribute its products in Wisconsin and other Midwestern states. The parties discussed, but did not sign, a written distributorship agreement. GIB terminated the parties’ sales relationship three years later. Four Star threatened litigation, and the parties eventually submitted their dispute to arbitration, in which GIB prevailed.⁴⁹

The parties presented to the district court dueling requests to confirm and vacate the award. Four Star’s case for vacating the award rested on its contention that the arbitrator had disregarded Wisconsin law in finding that the relationship between GIB and Four Star did not constitute a “dealership” because the two entities did not share a “community of interest.”⁵⁰

The Wisconsin Supreme Court has identified a lengthy list of factors for courts to consider in determining whether a particular business relationship reflected a “community of interest.”⁵¹ Four Star took issue with the arbitrator’s failure to discuss each factor in his decision and explain how they weighed against each other. The district court rejected Four Star’s argument, explaining that the more relaxed standards governing arbitration do not require an award to be accompanied by a factor-by-factor analysis.⁵²

The district court also cited a Seventh Circuit decision that funneled the factors into a single inquiry – whether the retailer had made investments in selling the grantor’s products that “would tempt an unscrupulous grantor” to “exploit the retailer’s fear of termination.”⁵³ In the district court’s view, the arbitrator had applied the factors he determined relevant to answer that question in the negative. The arbitrator had concluded that Four Star and GIB had different sales priorities, which caused Four Star to forego the level of investment in selling GIB’s products that would open it up to exploitation.⁵⁴ Four Star did not challenge this central conclusion of the arbitrator, which the district court deemed a sufficient application of the governing law to confirm the award.

Wisconsin Civil Procedure – Recognition of Foreign Judgment

Wisconsin law provides little guidance in determining whether a judgment entered by a court in a foreign country will be recognized in Wisconsin. In Societe Damenagement et de Gestion de Labri Nautique v. Marine Travelift Inc.,⁵⁵ the Eastern District of Wisconsin explored how Wisconsin courts should analyze that issue absent binding guidance from Wisconsin statutes or case law.

Sagan, a French corporation, purchased a boat hoist from Marine, a Wisconsin company. Sagan later commenced a products-liability action in a French commercial court after learning that the hoist was defective.⁵⁶ Sagan lost in the commercial court, but an appellate court disagreed and found Marine liable for the defects in the hoist and entered a money judgment against Marine.⁵⁷

Sagan then filed an action in the Eastern District of Wisconsin to domesticate the French judgment. The district court bifurcated its analysis into two inquiries: 1) whether the judgment was final, and if it was, 2) whether the judgment should be recognized under Wisconsin law. After determining that the judgment was final, the district court began its analysis of the second question by noting that recognition of a judgment issued in a foreign country is governed by state law.⁵⁸ Absent guidance from Wisconsin law, the district court had to predict how Wisconsin law would treat the judgment.⁵⁹

The district court began by observing that many states have adopted the Uniform Foreign-Country Money Judgments Recognition Act, which identifies factors that guide recognition analysis. Although Wisconsin has not adopted the Act, the district court observed that courts outside Wisconsin have applied its principles, which have also been codified in the Restatement (Third) of Foreign Relations.⁶⁰

The district court further observed that the Wisconsin Supreme Court has looked to Restatements as persuasive when its precedent does not provide controlling guidance.⁶¹ These considerations, along with the parties’ agreement that Wisconsin courts would look to the Restatement for guidance, prompted the district court to rely on it as well.

Applying the Restatement, the district court determined that Sagan’s judgment was entitled to recognition. The Restatement identifies conditions that require courts to deny recognition –lack of personal jurisdiction, impartial tribunals, or fair procedures.⁶² The district court found that none of these conditions applied to Sagan’s lawsuit against Marine.⁶³

The court then examined the Restatement factors that permit nonrecognition. Marine contended that the judgment violated Wisconsin public policy, but the district court found that it had failed to identify any such policy and construed its argument to simply be relitigating the merits of Sagan’s claim.⁶⁴ The court also dismissed Marine’s suggestion that Sagan had procured the judgment through misrepresentations in the French proceeding, observing that fraud only serves as a basis to deny recognition when the prevailing party’s fraud prevents its opponent from presenting the opponent’s case.

Because Marine had not pleaded fraud as a defense in the district court and could not show any interference with the presentation of its case in France, the district court concluded that recognition of the judgment was appropriate.⁶⁵

Wisconsin Insurance Law – Illusory Coverage

Wisconsin has a well-developed body of case law concerning when an insurance company must defend and indemnify an insured who is sued by a third party. Chief Judge Griesbach of the Eastern District applied that body of case law, and also considered the doctrine of illusory coverage, in Crum & Forster Specialty Insurance Co. v. GHD Inc.⁶⁶

WTE engaged GHD, now known as DVO Inc., to construct an “anaerobic digester,” which breaks down biodegradable material. After DVO’s work was completed, WTE filed suit alleging that DVO had breached the parties’ contract because it had not properly designed portions of the digester. Crum & Forster, DVO’s insurer, agreed to defend DVO in the lawsuit under a reservation of rights but later brought an action in the Eastern District seeking a declaration that it had no duty to defend or indemnify DVO.⁶⁷

The district court agreed with Crum & Forster that its policy did not require it to defend or indemnify DVO. Initially, the district court observed that the parties had no dispute regarding the first two prongs of Wisconsin’s duty-to-defend analysis. They agreed that Crum & Forster’s errors-and-omissions coverage in the policy provided an initial grant of coverage for WTE’s allegation that DVO had breached the contract by providing substandard design services. In addition, the parties agreed that an exclusion in the policy for damages and expenses arising out of a breach of contract by DVO precluded coverage.⁶⁸

Though the exclusion applied, DVO argued that it rendered coverage under the policy illusory in contravention of Wisconsin public policy, and that the policy should be reformed to eliminate the exclusion. In reviewing Wisconsin’s law regarding illusoriness, the district court made two key observations: 1) coverage is illusory when policy language is written such that coverage will never be triggered, and 2) reformation is an extraordinary remedy that should be applied only to the extent necessary to bring the policy in line with the expectations of a reasonable insured.⁶⁹

DVO’s arguments on each of these points failed to carry the day. First, the district court rejected DVO’s argument that the breach-of-contract exclusion foreclosed any possibility of coverage by noting that Wisconsin law implies into every contract a duty rooted in common law to perform one’s contractual duties with reasonable care and skill so as to avoid injury to third persons, a breach of which may render the breaching party liable in tort as well as contract.⁷⁰ The district court also noted that Wisconsin law imposes on all persons a duty to refrain from acting in a manner that poses an unreasonable risk of injuring others.⁷¹

With these principles in mind, the district court determined that the breach-of-contract exclusion did not eliminate all possibility of coverage because the exclusion would not apply to damages sought by a third party injured as a result of DVO’s errors or omissions.⁷² Citing analysis provided by the Wisconsin Court of Appeals in a case that raised a similar argument, the district court concluded that the policy’s intent was to prevent Crum & Forster from being “a guarantor of DVO’s contractual obligations” but could cover liability DVO incurred to third parties for its negligent errors or omissions.⁷³

Second, the district court noted that Wisconsin law governing reformation would not lead to the result DVO sought. Eliminating the breach-of-contract exclusion entirely, as DVO requested, was at odds with the limited nature of the remedy.⁷⁴ Reformation is permitted only to bring coverage into harmony with a reasonable insured’s expectations.

In this case, reformation would extend only to making explicit that the exclusion barred coverage for liability to the other parties to the insured’s contract, but not to third parties. That remedy would not help DVO, because its liability in the underlying lawsuit was for breach of its contract with WTE, not to third parties.⁷⁵

Endnotes

¹ 884 F.3d 746 (7th Cir. 2018).

² Id. at 750-51.

³ Id. at 749.

⁴ Id.

⁵ Id.

⁶ Id. at 749-50.

⁷ Id. at 750.

⁸ Id. at 751.

⁹ Id. at 751-52.

¹⁰ Id. at 752.

¹¹ Id. The court of appeals also affirmed summary judgment for Zimmer on the ground that the plaintiff could not establish a genuine issue of material fact on the issue of causation because the surgeon who implanted the device had testified that he did not choose the Zimmer implant based on any information or marketing materials provided by Zimmer.

¹² 2011 Wis. Act 2, § 31.

¹³ Wis. Stat. § 895.047(3)(b).

¹⁴ Nos. 16-cv-515-wmc, 16-cv-726-wmc, 2018 WL 2464470 (W.D. Wis. June 1, 2018).

¹⁵ Id. at *2.

¹⁶ Id. at **6-7.

¹⁷ No. 17-C-742, 2018 WL 4178178 (E.D. Wis. Aug. 30, 2018).

¹⁸ Id. at **3-4.

¹⁹ Id. at *4.

²⁰ Id.

²¹ Wis. Stat. § 895.046.

²² 904 F.3d 544 (7th Cir. 2018).

²³ Id. at 549.

²⁴ Id. at 552-53 (discussing Cameron v. City of Milwaukee, 102 Wis. 2d 448, 307 N.W.2d 164 (1981), and Olson v. Connerly, 156 Wis. 2d 488, 457 N.W.2d 479 (1990)).

²⁵ Id. at 553.

²⁶ Id.

²⁷ Id. at 555-56.

²⁸ Id.

²⁹ Id. at 556

³⁰ Id.

³¹ Id. at 557

³² 876 F.3d 306 (7th Cir. 2017).

³³ Id. at 308.

³⁴ Id.

³⁵ Id.

³⁶ Id.

³⁷ Id.

³⁸ Id. at 310.

³⁹ Id.

⁴⁰ Id. at 311.

⁴¹ Id.

⁴² Id.

⁴³ Nos. 07-CV-0303, 07-CV-0441, 10-CV-0075, 2018 WL 2185022 (E.D. Wis. May 11, 2018). Author’s note: The author of this article represents one of the defendants in this case.

⁴⁴ Id. at *1.

⁴⁵ Id. at *2 (citing Fish v. Amsted Indus. Inc., 126 Wis. 2d 293, 376 N.W.2d 820 (1985)).

⁴⁶ Id. at *3 (citing Sedbrook v. Zimmerman Design Grp. Ltd., 190 Wis. 2d 14, 526 N.W.2d 758 (Ct. App. 1994), and Treuber v. Neuman Machine Co., Nos. 99-0014, 99-1253, 2000 WL 375209 (Wis. Ct. App. April 13, 2000) (unpublished)).

⁴⁷ Id. at *4.

⁴⁸ No. 16-C-1351, 2017 WL 6622549 (E.D. Wis. Dec. 28, 2017).

⁴⁹ Id. at *1.

⁵⁰ Id. at *2.

⁵¹ Id. (citing Ziegler Co. v. Rexnord Inc., 139 Wis. 2d 593, 407 N.W.2d 873 (1987)).

⁵² Id. at *3.

⁵³ Id. at *3 (citing Frieburg Farm Equip. Inc. v. Van Dale Inc., 978 F.2d 395 (7th Cir. 1992)).

⁵⁴ Id.

⁵⁵ 324 F. Supp. 3d 1004 (W.D. Wis. May 30, 2018) (appeal filed).

⁵⁶ Id. at 1006.

⁵⁷ Id.

⁵⁸ Id. at 1008.

⁵⁹ Id.

⁶⁰ Id. at 1009.

⁶¹ Id.

⁶² Id. (citing Restatement (Third) of Foreign Relations § 482(1)).

⁶³ Id. at 1009-10.

⁶⁴ Id. at 1010.

⁶⁵ Id. at 1011-12.

⁶⁶ 325 F. Supp. 3d 917, (E.D. Wis. 2018) (appeal filed).

⁶⁷ Id. at 920.

⁶⁸ Id. at 922.

⁶⁹ Id. at 923.

⁷⁰ Id. at 923-24 (reviewing Colton v. Foulkes, 259 Wis. 142, 47 N.W.2d 901 (1951)).

⁷¹ Id. at 924 (citing Brenner v. Amerisure Mut. Ins. Co., 2017 WI 38, 374 Wis. 2d 578, 893 N.W.2d 193).

⁷² Id. at 924

⁷³ Id. at 924-25 (discussing General Cas. Co. of Wis. v. Rainbow Insulators Inc., No. 2010AP347, 2011 WL 1162088 (Wis. Ct. App. March 31, 2011) (unpublished)).

⁷⁴ Id. at 925.

⁷⁵ Id.

​