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ESTATE OF KRIEFALL v. SIZZLER USA FRANCHISE

Nos. 2009AP1212, 2010AP491.

801 N.W.2d 781 (2011)

2011 WI App 101

ESTATE OF Brianna KRIEFALL, deceased, by her Special Administrator, Douglas A. Kriefall, Connie J. Kriefall and Chad Kriefall, a minor, by his Guardian ad Litem, Plaintiffs, v. SIZZLER USA FRANCHISE, INC., Defendant-Respondent-Cross-Appellant, E & B Management Co., Waukesha, d/b/a Sizzler, Sizzler USA and Secura Insurance, Defendants, Excel Corporation and American Home Assurance Co., Defendants-Appellants-Cross-Respondents. Estate of Brianna Kriefall, deceased, by her Special Administrator, Douglas A. Kriefall, Connie J. Kriefall and Chad Kriefall, a minor, by his Guardian ad Litem, Plaintiffs, v. Sizzler USA, Defendant, Sizzler USA Franchise, Inc., Defendant-Respondent, E & B Management Co., Waukesha, d/b/a Sizzler and Secura Insurance, Defendants-Respondents-Cross-Appellants, Excel Corporation and American Home Assurance Co., Defendants-Appellants-Cross-Respondents.

Court of Appeals of Wisconsin.

Decided June 7, 2011.

Attorney(s) appearing for the Case

On behalf of the defendants-appellants-cross-respondents Excel Corporation and American Home Insurance Company, the cause was submitted on the briefs of Nora Gierke and Rebecca Frihart Kennedy of Reinhart Boerner Van Deuren S.C., Milwaukee, Barbara I. Michaelides (pro hac vice), Paula M. Carstensen (pro hac vice) and Agelo L. Reppas (pro hac vice) of Bates Carey Nicolaides LLP, Chicago, Illinois, William C. Buhay , Earl W. Gunn and David I. Matthews (pro hac vice) of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, Georgia. There was oral argument by Paula M. Carstensen .

On behalf of the defendant-respondent-cross-appellant Sizzler USA Franchise, Inc., the cause was submitted on the brief of Russell A. Klingaman and Noah D. Fiedler of Hinshaw & Culbertson LLP, Milwaukee. There was oral argument by Frederic Gordon (pro hac vice) of Gordon & Holmes, San Diego, California.

On behalf of the defendants-respondents-cross-appellants E & B Management Co., Waukesha, Inc. and Secura Insurance, a Mutual Company, the cause was submitted on the brief of Ronald G. Pezze, Jr. and Ahndrea R. Van Den Elzen of Peterson, Johnson & Murray, S.C., Milwaukee. There was oral argument by Terry Johnson .

Before FINE, BRENNAN and REILLY, JJ.

FINE, J.

¶ 1 This matter was here before. Estate of Kriefall ex rel. Kriefall v. Sizzler USA Franchise, Inc., 2003 WI App 119, ¶ 1, 265 Wis.2d 476, 483, 665 N.W.2d 417, 421, held that claims by the estate of a child alleged to have died as the result of, and persons alleged to be injured by, contaminated meat sold by Excel Corporation were not barred by federal preemption. The...

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