PEPSI COLA METROPOLITAN BOTTLING COMPANY INC v. EMPLOYERS INSURANCE COMPANY OF WAUSAU (2023)

Supreme Court of Wisconsin.

PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC., Plaintiff-Appellant, v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant-Respondent-Petitioner.

No. 2021AP635

Decided: May 24, 2023

For the defendant-respondent-petitioner, there were briefs filed by Michael J. Cohen, Pamela J. Tillman, James M. Sosnoski, Caleb R. Gerbitz, and Meisser, Tierney, Fisher & Nichols, S.C., Milwaukee. There was an oral argument by Michael J. Cohen. For the plaintiff-appellant, there was a brief filed by Lee M. Seese, Kimberly A. Streff, and Michael Best & Friedrich, LLP, Milwaukee, and Jeffrey S. Raskin, David S. Cox, David B. Salmons, Brendan J. Anderson and Morgan, Lewis & Bockius, LLP, San Francisco, Los Angeles, and Washington D.C. There was an oral argument by David B. Salmons. An amicus curiae brief was filed by Heidi L. Vogt, Janet E. Cain and von Briesen & Roper, s.c., Milwaukee, for the Complex Insurance Claims Litigation Association. An amicus curiae brief was filed by Raj Patel, Robert J. Gilbert, Michael L. Huggins, and Latham & Watkins, LLP, Chicago, Boston, and San Diego, for Wisconsin Manufacturers & Commerce and Emerson Electric Company. An amicus curiae brief was filed by James A. Friedman, Daniel C.W. Narvey, and Godfrey & Kahn, S.C., Madison, for the Wisconsin Insurance Alliance.

¶1 Employers Insurance Company of Wausau (Wausau) petitioned for review of a court of appeals decision, Pepsi-Cola Metropolitan Bottling Company, Inc. v. Employers Insurance of Wausau, 2022 WI App 45, 404 Wis. 2d 337, 979 N.W.2d 627, which reversed a circuit court order granting summary judgment for Wausau and denying partial summary judgment for Pepsi. No three justices reach agreement to either affirm, reverse, or affirm in part and reverse in part the court of appeals decision. Because the court did not reach a majority as to the mandate, the decision of the court of appeals is affirmed.

PER CURIAM.

¶2 BRIAN HAGEDORN, J., withdrew from participation. ¶3 ANNETTE KINGSLAND ZIEGLER, C.J., did not participate.

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