ESTATE OF KRIEFALL v. SIZZLER USA FRANCHISE, INC.

No. 02-1939.

265 Wis.2d 476 (2003)

2003 WI App 119

665 N.W.2d 417

ESTATE OF Brianna L. KRIEFALL, deceased, by her Special Administrator, Douglas A. Kriefall, Douglas A. Kriefall, Connie J. Kriefall, and Chad Kriefall, a minor, by his Guardian ad Litem, William M. Cannon, Plaintiffs-Appellants, HUMANA EMPLOYERS HEALTH INSURANCE CO., a Wisconsin insurance corporation, Involuntary-Plaintiff, v. SIZZLER USA FRANCHISE, INC., a foreign corporation, Defendant-Third-Party Plaintiff-Co-Appellant, FEDERAL INSURANCE Co., a foreign insurance corporation, E&B Management Co. Waukesha, Inc., a Wisconsin corporation, Secura Insurance, a Wisconsin insurance corporation, Sysco Services of Eastern Wisconsin, a wholly owned subsidiary of Sysco Corporation, a foreign corporation, Fidelity and Guaranty Insurance Co., a foreign insurance corporation, Lee M. Eschenbach, Steven C. Boysa, AAA Insurance Co., and BBB Insurance Co., Defendants, EXCEL CORPORATION, a foreign corporation, and American Home Assurance Co., a foreign insurance corporation, Defendants-Respondents, v. Lee M. ESCHENBACH, Steven C. Boysa, AAA Insurance Co., BBB Insurance Co., Cargill, Inc., a foreign corporation, and Excel Food Distribution, Inc., a foreign corporation, Third-Party Defendants. Ervin J. LESAK and Florence Lesak, Plaintiffs-Co-Appellants, v. E&B MANAGEMENT CO. WAUKESHA, INC., Defendant, EXCEL CORPORATION, Defendant-Respondent. Jeffrey FORTIER, Judith Fortier, Tristan Fortier, and Carly Fortier, Plaintiffs-Co-Appellants, GREAT WEST LIFE & ANNUITY INSURANCE, Involuntary-Plaintiff, v. EXCEL CORPORATION, Defendant-Respondent. Kevin McCORMICK, Sandy McCormick, and Kelsea McCormick, Plaintiffs-Co-Appellants, BLUE CROSS BLUE SHIELD UNITED, Involuntary-Plaintiff, v. EXCEL CORPORATION, Defendant-Respondent.

Court of Appeals of Wisconsin.

Decided May 13, 2003.


Attorney(s) appearing for the Case

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William M. Cannon and Edward E. Robinson of Cannon & Dunphy, S.C., Milwaukee. There was oral argument by Edward E. Robinson.

On behalf of the plaintiffs-co-appellants, Ervin J. Lesak and Florence Lesak, the cause was submitted on the briefs of Denis W. Stearns of Marler Clark, LLP, PS, Seattle, Washington and Michael J. Hanrahan of Fox, O'Neill & Shannon, S.C., Milwaukee. There was oral argument by Denis W. Stearns.

On behalf of the defendant-third-party plaintiff-co-appellant, the cause was submitted on the briefs of Russell A. Klingaman of Hinshaw & Culbertson, Milwaukee; J. Ric Gass, Mark M. Leitner, and Thomas Gonzalez of Kravit, Gass, Hovel & Leitner, S.C., Milwaukee; and Frederic L. Holmes of Gordon & Holmes, San Diego, California. There was oral argument by James R. Gass.

On behalf of the defendant-respondent, Excel Corporation, the cause was submitted on the brief of Ralph A. Weber, Amelia L. McCarthy, and Shawn K. Stevens of Reinhart Boerner Van Deuren, S.C., Milwaukee. There was oral argument by Ralph A. Weber.

An amicus curiae brief was filed by Timothy A. Bascom of Bascom, Budish & Ceman, S.C., Wauwatosa; Gary Jay Kushner of Hogan & Hartson, L.L.P., Washington, D.C.; Mark D. Dopp of American Meat Institute, Arlington, Virginia; Brett T. Schwemer, Dennis R. Johnson, and Philip C. Olsson of Olsson, Frank and Weeda, P.C., Washington, D.C.

Before Fine, Schudson and Hoover, JJ.


¶ 1. FINE, J.

This is a consolidated appeal from the trial court's grant of summary judgment to Excel Corporation, a meat processor, dismissing claims against Excel for damages allegedly caused by Excel's sale to a Milwaukee area Sizzler restaurant of beef contaminated with the bacterium E. coli O157:H7. The plaintiffs involved in this appeal contend that E. coli bacteria from the meat sold by Excel to the Sizzler restaurant contaminated other food that was eaten...

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