09-1783 Milwaukee Metropolitan Sewerage District v. American International Specialty Lines Insurance Company, c/o AMERICAN INTERNATIONAL…

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1645, 09-1715 & 09-1783
MILWAUKEE METROPOLITAN SEWERAGE DISTRICT,
Plaintiff-Appellee, Cross-Appellant,
v.
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE
COMPANY, c/o AMERICAN INTERNATIONAL SURPLUS
LINES AGENCY INC.,
Defendant, Third-Party Plaintiff-Appellant,
Cross-Appellee,
v.
CRUMP INSURANCE SERVICES OF ILLINOIS AND
CRUMP GROUP, INCORPORATED,
Third-Party Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 1352—Aaron E. Goodstein, Magistrate Judge.
ARGUED OCTOBER 29, 2009—DECIDED MARCH 10, 2010

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2 Nos. 09-1645, 09-1715 & 09-1783
Before FLAUM, MANION, and WOOD, Circuit Judges.
MANION, Circuit Judge. When 19 acres of land are
offered for sale for $1.00, any purchaser has reason to be
wary. The Milwaukee Metropolitan Sewerage District is
responsible for flood control and wastewater treatment
in the greater Milwaukee area. As part of a flood control
project, the District needed to acquire from Milwaukee
County a piece of real estate along Lincoln Creek. The
nominal asking price was $1.00. In anticipation of possible
pollution clean-up costs, the project manager recom-
mended obtaining insurance coverage, which the District
directed its insurance agency to acquire. After a policy
was issued, the District acquired title to the land. Soon
thereafter, the District encountered significant pollution
on the land. But when it submitted a claim to its environ-
mental liability insurer, American International Specialty
Lines Insurance Company (“AISLIC”), for costs incurred
in removing the pollution, the insurer denied coverage.
The District then sued AISLIC in Wisconsin state court
seeking damages under several state law claims. Following
removal to federal court and a bench trial, the district
court concluded that coverage for the pollution was
appropriate. The court reformed the District’s insurance
policy with AISLIC to provide coverage for the pollu-
tion removal costs and entered judgment for $226,468.51
in favor of the District. The court also entered judgment
in the same amount for AISLIC on its indemnity claim
against Crump Insurance Services of Illinois, Inc.
(“Crump”). AISLIC and Crump appeal from the district
court’s judgment, and the District cross-appeals the
judgment and the denials of its post-trial motions. For

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Nos. 09-1645, 09-1715 & 09-1783 3
the reasons that follow, we reverse the judgment of the
district court and remand with instructions to enter
judgment for AISLIC on the District’s reformation claim
and to dismiss AISLIC’s indemnity claim against Crump
as moot. We also dismiss the District’s cross-appeal
as moot.
I.
The District provides wastewater treatment services to
28 communities in the greater Milwaukee area. It also
performs flood control and environmental pollution
abatement work. In the late 1990s, the District developed
the Lincoln Creek Flood Control Management Plan
(“Plan”) to reduce flooding along a nine-mile stretch of
Lincoln Creek. The Plan was subdivided into ten seg-
ments called “reaches.” In order to implement the Plan
along Reach 3, the District needed to purchase a piece
of land (“Parcel”) that was owned by Milwaukee County.
Up to that point, the County had refused to allow the
District to perform soil testing on the Parcel to check
for pollution. James Ibach, a design and construction
manager for the District, recommended that District
policymakers consider procuring environmental liability
insurance “to protect the risk that the District might be
exposed to in the event that we encountered pollutants
on the property during construction.” Therefore, before
purchasing the Parcel, the District set out to procure
such insurance.
In late 1998, representatives from the District and its
retail insurance broker, Sedgwick of Illinois, Inc., had a
meeting during which environmental insurance coverage

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4 Nos. 09-1645, 09-1715 & 09-1783
Crump Group, Inc., is also a party to this case. In this opinion, 1
we refer to it and Crump Insurance Services of Illinois, Inc.,
collectively as “Crump.”
for “Lincoln Creek” was discussed. In December 1998,
Glinda Loving, the District’s risk management coordi-
nator, provided Sedgwick with information about the
District’s desired pollution coverage for “Lincoln Creek,”
including excerpts from a Phase I Study. The Phase I
Study was a 270-page document entitled, “Draft Prelimi-
nary Environmental Site Assessment of Lincoln Creek
From Reach 1 Through Reach 6, Lincoln Creek Flood
Control Design Phase II, Milwaukee, Wisconsin.” Loving
believed “Lincoln Creek” referred to the Parcel and
mistakenly thought the Phase I Study was limited to the
Parcel. In fact, the Phase I Study did not contain any
specific description of the Parcel. After receiving the
voluminous document, Sedgwick did not determine
precisely what “Lincoln Creek” meant, other than a
piece of land the Phase I Study supposedly described
that the District might buy from the County for $1.00.
On December 7, 1998, Barbara Piller of Sedgwick con-
tacted Tim Turner at Crump, a wholesale insurance1
broker, to place environmental coverage for the District
on the Parcel. Sedgwick provided Crump with a
complete copy of the Phase I Study. Sedgwick also
asked Crump whether that would be sufficient informa-
tion for an underwriter to determine whether to provide
coverage for the property. On February 25, 1999, the
District authorized Sedgwick to bind coverage for five

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Nos. 09-1645, 09-1715 & 09-1783 5
In November 1997, the District had sought a quote through 2
Sedgwick for coverage for the same two treatment plants,
garage maintenance facility, and fill-monitoring facility.
Sedgwick contacted Crump, and Crump secured quotes
from AISLIC and Zurich American. The District decided not
to obtain coverage at that time.
properties: two treatment plants, a garage maintenance
facility, a fill-monitoring facility, and “Lincoln Creek.” All2
of the properties except Lincoln Creek were identified
by an address; Lincoln Creek was identified only by
name. Sedgwick forwarded the District’s order to bind
coverage to Crump, which then faxed the order to the
insurer, AISLIC. The next day (February 26), AISLIC
faxed Crump a confirmation that it had bound coverage.
Crump immediately passed that information along
to Sedgwick and indicated that Lincoln Creek was
a covered property. Crump also told Sedgwick that
AISLIC needed a completed application from the
District because the prior quote from November 1997
had expired. On March 1, AISLIC faxed Crump a binder
specifying the insured properties; Lincoln Creek
was not one of them. The next day, Crump noticed that
Lincoln Creek was not listed as an insured property on
the binder and informed AISLIC that Lincoln Creek
would be on the application that the District was sub-
mitting. Crump then added Lincoln Creek to the list of
insured properties, placed the altered binder on its letter-
head, and faxed it to Sedgwick. In the altered binder,
Crump indicated that coverage was subject to the receipt
and satisfactory review of an application with site ad-

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6 Nos. 09-1645, 09-1715 & 09-1783
On March 2, Sedgwick forwarded the altered binder to the 3
District, along with a premium invoice that the District paid.
dresses for the insured properties by March 5. A few3
minutes later, Crump faxed the altered binder to AISLIC.
Later that day (still March 2), AISLIC responded to
Crump’s fax, objecting to Crump’s inclusion of Lincoln
Creek on the binder and unequivocally stating that it
was not an insured property.
On March 5, Sedgwick forwarded the District’s com-
pleted application to Crump. Four properties were listed
in the application, each accompanied by an address and
an operations description. A fifth property, “Lincoln
Creek,” was described only by name; no address or
operations description was provided. The only infor-
mation about “Lincoln Creek” on the application was the
name of Glinda Loving as a contact person and a
general reference to the Phase I Study. On March 8, a few
days after Crump sent AISLIC the District’s application,
AISLIC informed Crump that it was unwilling to
include Lincoln Creek on the Policy as an insured
property because underwriting guidelines required an
insured property be owned by, leased by, or in the opera-
tional control of an insured. The next day, AISLIC sent
Crump a letter setting forth the properties that would
be included on the Policy. In addition to the four
facility properties listed on the original binder, a fifth
property at 4830 N. 32nd Street in Milwaukee was
listed. AISLIC indicated that it believed the District had
a location at that address and would add it to the Policy

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Nos. 09-1645, 09-1715 & 09-1783 7
The 4830 N. 32nd Street location was a facility AISLIC 4
learned about in the Phase I Study and added to the Policy as
a “freebie.”
if the District still had control over it. AISLIC also4
stated that coverage for Lincoln Creek would have to
be provided by a separate CPL (contractor’s pollution
liability) project policy inasmuch as the District
was engaged in a multi-year project involving various
activities along the entire creek. AISLIC asked Crump
to advise it on how to proceed regarding the Lincoln
Creek project. On March 12, Tim Turner at Crump sent Joe
Spina at Sedgwick a fax indicating that AISLIC was
“having difficulty adding the entire ‘Lincoln Creek’ ” to
the policy and could only add “the portion that the
insured owns, and/or operates.” The fax also asked Sedg-
wick to provide “an address for [the District’s] property
on the creek” and reiterated that “the insured must
own or operate the property in order to schedule it.”
Turner re-sent the same fax to Sedgwick on March 29.
This time he pencilled in Piller as an additional recipient
and wrote, “Urgent!” on the front of the memo. Sedgwick
did not notify the District of any of the information
from the faxes. Neither the District nor Sedgwick ever
responded to either fax.
On March 16, AISLIC issued a policy for the District
that named the four original properties and the
4830 N. 32nd Street location as insured properties.
Lincoln Creek was not scheduled as an insured property.
Crump sent the policy to Sedgwick on March 22,

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8 Nos. 09-1645, 09-1715 & 09-1783
asking Sedgwick to review it carefully to verify it met
Sedgwick’s specifications and to advise Crump of any
corrections or changes. Five months later in Septem-
ber 1999, Sedgwick forwarded the policy to the District.
Glinda Loving reviewed the policy and noticed that it
listed the 32nd Street location instead of Lincoln Creek.
She contacted Piller at Sedgwick to inquire about the
discrepancy. Piller told Loving that the 32nd Street
address referred to Lincoln Creek. Sedgwick then sent
Crump a fax advising it that the address for the fifth
location should be amended to read “Lincoln Creek from
Silver Springs to River Mile Roads.” That address, which
Sedgwick obtained from the Phase I Study, actually
referred to Reaches 1 through 6 of the Plan; it did not
describe the Parcel. Sedgwick did not recall Crump re-
sponding to the fax, and neither Sedgwick nor the
District ever pursued the matter further.
One month later on October 19, the District purchased
the Parcel from the County. When it did so, the District
knew from soil borings taken from the Parcel a few
months earlier that foundry sand, slag, and waste ash—
all of which are environmental concerns—were present
in some amount. While excavating on the Parcel a
month later, the District encountered large quantities
of waste ash. In March 2000, the District submitted a
claim to AISLIC for $731,835.75 in costs it incurred re-
moving the waste ash from the Parcel. In December
2001, AISLIC denied the claim, asserting that the Parcel
was not an insured property.
In November 2005, the District sued Sedgwick, AISLIC,
and others not relevant here in Wisconsin state court,

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Nos. 09-1645, 09-1715 & 09-1783 9
asserting state law claims against AISLIC for breach
of contract, promissory estoppel, and reformation of
the policy, and a claim against Sedgwick for negligent
misrepresentation. The defendants removed the action
to the Eastern District of Wisconsin based on diversity
jurisdiction. AISLIC filed a third-party complaint
against Crump for indemnification in the event judg-
ment was entered against AISLIC in favor of the Dis-
trict. The parties consented to a magistrate judge con-
ducting all proceedings in the case.
Following cross-motions for summary judgment by the
District and AISLIC, the district court granted summary
judgment for AISLIC on the District’s breach of contract
and promissory estoppel claims, denied both AISLIC’s
and the District’s motions for summary judgment on
the reformation claim, and denied AISLIC’s motion for
summary judgment against Crump. Upon reaching a
settlement with Sedgwick, the District stipulated to
the dismissal of its claim against Sedgwick.
After holding a bench trial with an advisory jury, the
district court found that Crump was AISLIC’s agent.
The court then concluded that the reason the Parcel
was not covered under the policy was Crump’s failure
to obtain the information AISLIC needed in order to
insure the Parcel and to communicate to Sedgwick or the
District in no uncertain terms that such information
was required. Imputing Crump’s error to AISLIC, the
court reformed the policy to include the Parcel as an
insured property and entered judgment in favor of the

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10 Nos. 09-1645, 09-1715 & 09-1783
The district court adopted the advisory jury’s determination 5
that the District incurred $404,148.51 in pollution clean-up
costs on the Parcel. The court then reduced that sum by the
policy’s $100,000 deductible and the amount ($77,680.00) of
the District’s settlement with Sedgwick to arrive at the
$226,468.51 total.
The District has not appealed the district court’s adverse 6
summary judgment determinations on its breach of contract
and promissory estoppel claims. The only one of the District’s
claims at issue on appeal is its reformation claim, upon
which the court’s judgment against AISLIC is based.
District against AISLIC for $226,468.51 plus costs. The5
court also entered judgment in the same amount in favor
of AISLIC on its indemnity claim against Crump. The
District filed post-judgment motions asking the court to
award prejudgment interest, to increase the damages
award, and to reconsider its decision offsetting the Dis-
trict’s damages by the amount of the settlement with
Sedgwick. The district court denied all three motions.
AISLIC and Crump appeal the district court’s judg-
ment; the District cross-appeals the judgment and the
denial of its post-judgment motions.6
II.
As a federal court sitting in diversity, we apply state
law to substantive issues and federal law to procedural
and evidentiary matters. Bevolo v. Carter, 447 F.3d 979,
982 (7th Cir. 2006). The parties agree that Wisconsin
substantive law applies. In diversity cases where, as here,

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Nos. 09-1645, 09-1715 & 09-1783 11
the judge was the trier of fact, federal law governs our
standard of review. Tax Track Sys. Corp. v. New Investor
World, Inc., 478 F.3d 783, 789 (7th Cir. 2007). Accordingly,
we review the district court’s legal conclusions de novo
and its findings of fact and application of law to facts
for clear error. Cohen Dev. Co. v. JMJ Props., Inc., 317
F.3d 729, 735 (7th Cir. 2003).
We turn first to AISLIC’s argument that the district
court erred by reforming the policy to include the Parcel
as a covered property. In Wisconsin, when an insurance
policy fails to express a prior agreement between
parties because of either the mutual mistake of both
parties regarding the contents or effect of the policy or
the mistake of one party coupled with fraud or
inequitable conduct by the other party, the policy may
be reformed to reflect the prior agreement. Russ ex rel.
Schwartz v. Russ, 734 N.W.2d 874, 885 (Wis. 2007);
Vandenberg v. Continental Ins. Co., 628 N.W.2d 876, 889 &
n.35 (Wis. 2001). If no prior agreement was reached by
the parties, however, there can be no reformation of the
policy. E.g., Int’l Chiropractors Ins. Co. v. Gonstead, 238
N.W.2d 725, 729 (Wis. 1976); Frantl Indus., Inc. v. Maier
Constr., Inc., 229 N.W.2d 610, 611 (Wis. 1975); Ahnapee &
W. Ry. Co. v. Challoner, 148 N.W.2d 646, 648 (Wis. 1967). A
prior agreement on the detail that the policy failed to
express only exists if the parties came to a “ ‘meeting of
the minds’ ” on that provision. Frantl, 229 N.W.2d at
612 (quoting Touchett v. E Z Paintr Corp., 58 N.W.2d 448,
450 (Wis. 1953)); accord Trs. of St. Clara Female Acad. of
Sinsinawa Mound v. Delaware Ins. Co., 66 N.W. 1140, 1143
(Wis. 1896); see also Trible v. Tower Ins. Co., 168 N.W.2d 148,

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12 Nos. 09-1645, 09-1715 & 09-1783
On appeal, AISLIC disputes the district court’s determination 7
that Crump was its agent and argues that Crump was actually
the District’s agent. We will assume arguendo that the district
court’s agency findings are correct. As we shall see, in light of
our holding we need not decide these issues.
154 (Wis. 1969) (an applicant for insurance must state
relevant facts to insurer’s agent and the agent must
understand).
One prerequisite for a valid agreement is that the par-
ties’ minds met regarding the particular property to
be insured. John R. Davis Lumber Co. v. Scottish Union &
Nat’l Ins. Co., 69 N.W. 156, 156 (Wis. 1896); Mattoon Mfg.
Co. v. Oshkosh Mut. Fire Ins. Co., 35 N.W. 12, 16 (Wis.
1887). Whether there has been such a meeting of the
minds is a fact question, In re Estate of Kobylski, 503 N.W.2d
369, 381 (Wis. Ct. App. 1993), that must be proven by
“clear, satisfactory, and convincing evidence,” Frantl,
229 N.W.2d at 611; accord Ahnapee, 148 N.W.2d at 648;
Samuels Recycling Co. v. CNA Ins. Cos., 588 N.W.2d 385,
389 (Wis. Ct. App. 1998).
The district court found that the District, acting
through its agent Sedgwick, communicated its desire
for environmental liability coverage on the Parcel to
AISLIC through AISLIC’s agent, Crump, and concluded7
that the colloquial description of the Parcel as “Lincoln
Creek” was a sufficient description of the property. The
court also determined that the District had proven by
clear and convincing evidence that Crump understood
that the District wanted environmental hazard coverage

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Nos. 09-1645, 09-1715 & 09-1783 13
for the Parcel, even though Crump never understood
the exact metes and bounds of the Parcel. AISLIC
contends that the district court clearly erred in finding
these facts and thus in concluding that a prior agreement
existed between AISLIC and the District that the Parcel
was to be a covered property.
We agree. Glinda Loving’s testimony concerning
her discussions with Sedgwick in December 1998 demon-
strates that she never understood the precise (or even
the general) contours of the Parcel that she referred to
as Lincoln Creek. She stated that she believed the
lengthy Phase I Study described the Parcel when, in fact,
it encompassed Reaches 1-6 of the entire Plan. As it
turned out, the Parcel was only a 19-acre component of
Reach 3, and nowhere in the Phase I Study was the
Parcel identified or specifically described. Operating
under the mistaken impression that the Phase I Study
described the Parcel, Loving attached that document
or excerpts therefrom to her communications with Sedg-
wick. Sedgwick’s only understanding regarding “Lincoln
Creek” was that it was a piece of land the District
was buying from the County for $1.00 and that was
supposedly described by the Phase I Study. Sedgwick
conveyed that same meager understanding and the
Phase I Study to Crump, and Crump passed it on to
AISLIC. In the application, the District did not provide, as
requested, an address for “Lincoln Creek” or any descrip-
tion of site operations. Again, the only information
the District provided was the name of the property, a
reference to the Phase I Study, and the name of Glinda
Loving as a contact person. This evidence shows that

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14 Nos. 09-1645, 09-1715 & 09-1783
The quitclaim deed conveying the Parcel from Milwaukee 8
County to the District contained a comprehensive metes and
bounds description along with a statement that the Parcel
consists of 18.99 acres. Obviously before negotiating for insur-
ance, Loving could have obtained and provided this descrip-
tion to Sedgwick or Sedgwick could have obtained it. As it
was, neither the District nor Sedgwick had any idea about the
location or legal description of the Parcel. This means they
could not have communicated an adequate description to
AISLIC, and there is no evidence in the record that AISLIC
acquired knowledge of the particular parameters of the Parcel
from other sources. Therefore, there could not have been any
meeting of the parties’ minds and reformation of the policy
to insure the land is not possible.
the most precise description of the Parcel that AISLIC
ever received (either directly or imputedly through its
purported agent Crump) was that the Parcel was a piece
of land located somewhere in Reaches 1-6 along the
creek. That description was patently insufficient to com-
municate to AISLIC the property for which the District
was seeking environmental liability coverage.8
The case of Wege v. Boehm, 199 N.W. 210 (Wis. 1924),
illustrates the point. In Wege, defendant-lessors of a
piece of land counterclaimed for reformation of a
recorded lease agreement that did not contain a descrip-
tion of the leased premises. Id. at 211. The trial court
ordered reformation of the lease to conform to the descrip-
tion of the premises the court found the plaintiff had
agreed to lease. Id. The plaintiff appealed, and the Wis-
consin Supreme Court reversed, holding that reformation

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Nos. 09-1645, 09-1715 & 09-1783 15
of the lease was inappropriate because no antecedent
agreement had been reached between the plaintiff and
defendants regarding the parameters of the leased pre-
mises. Id. at 212. Specifically, the court found that
the minds of the parties did not meet upon any definite
piece of land when the leased property was described
as extending to “about to that tree” or “about to that
point.” Id. Here, with even less precision, the District
denominated “Lincoln Creek” using only the 270-page
Phase I Study. At best, AISLIC understood that Lincoln
Creek was a piece of land somewhere in Reaches 1-6. As
in Wege, “[n]umerous descriptions would respond to this
suggestion.” Id. Therefore, there was no meeting of the
minds regarding the actual property that the District
wished to insure, which is fatal to its reformation claim.
The district court found that Crump understood the
nature of the Parcel based on the fact that the altered
binder Crump issued listed “Lincoln Creek” as an
insured property. But that fact alone is not indicative of a
meeting of the minds between AISLIC and the District
regarding to what precise property that term referred,
especially in light of the March 12 fax Crump sent to
Sedgwick after the altered binder was issued and AISLIC
had received and reviewed the District’s application. In
that fax, Crump informed Sedgwick that AISLIC was
“having difficulty adding the entire ‘Lincoln Creek’ ” to
the policy and could only add “the portion that the
insured owns, and/or operates.” That missive from
Crump indicated that the scant information the
District had given AISLIC did not allow AISLIC to under-
stand the precise property to be insured. Based on all of

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16 Nos. 09-1645, 09-1715 & 09-1783
the evidence in the record, we conclude that the
district court’s finding that there was clear and con-
vincing proof that a prior agreement existed between
AISLIC and the District that the Parcel would be a
covered property was clearly erroneous.
But even if that finding by the district court was not
clearly erroneous, its judgment cannot stand for
another reason: as shown below, the District knew that
the policy did not include coverage for the Parcel. As the
party seeking reformation, the District must have mis-
takenly believed that Lincoln Creek would be a covered
property under the policy. See Russ, 734 N.W.2d at 885
(reformation requires either mistake of both parties or
mistake of party seeking reformation and fraud or inequi-
table conduct by the other party). That mistake must
have occurred at the time the policy was executed. See
Breeden v. Breeden, 93 N.W.2d 854, 856 (Wis. 1959); see also
2 LEE R. RUSS & THOMAS F. SEGALLA, COUCH ON
INSURANCE § 27:3, at 27-7 (3d ed. 1995) (“The party
seeking reformation must establish a . . . mistake of fact
which was in existence at the time the policy was executed.”)
(emphasis added). But if the District knew that the policy
would not cover the Parcel, then by definition it was not
operating under any mistake of fact and is not entitled
to reformation. Rebernick v. Wausau Gen. Ins. Co., 692
N.W.2d 348, 353 (Wis. Ct. App. 2004) (“Actual knowl-
edge, of course, negates the ‘mistake’ element.”).
Viewed as a whole, the record indicates that the
District knew that the policy would not include
“Lincoln Creek” as an insured property. From the very

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Nos. 09-1645, 09-1715 & 09-1783 17
The district court thought the March 12 fax was not sent by 9
Crump until after the policy was issued. That was a clearly
erroneous conclusion: the policy was issued on March 16.
The district court’s error may have resulted from the fact that
Crump re-sent the same fax to Sedgwick on March 29.
beginning of the District’s efforts to obtain coverage for
the Parcel, its agent Sedgwick was concerned that the
information it was providing to Crump might not be
sufficient for AISLIC to decide whether to provide cover-
age. In a letter to Crump in December 1998, Sedgwick
asked whether there was “enough information included
for an underwriter to determine whether [AISLIC] will
provide coverage for the property.” Then, in the altered
binder, Crump indicated that AISLIC’s coverage of the
properties listed was subject to the “[r]eceipt and satis-
factory review of the original and signed application (with
site addresses)” by March 5, 1999. In the application
it submitted, however, the District failed to provide an
address (and an operations description) for “Lincoln
Creek.” Because it knew that coverage for “Lincoln Creek”
was contingent upon the provision of a site address, the
District could not have reasonably thought the
property would be covered upon the policy’s issuance.
Perhaps most importantly, before the policy was issued,
Crump’s March 12 fax informed Sedgwick that AISLIC
was “having difficulty adding the entire ‘Lincoln Creek’ ”
to the policy and could only add “the portion that the
insured owns, and/or operates.” Crump also asked9
Sedgwick if it could provide “an address for [the Dis-
trict’s] property on the creek” and repeated that “the

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18 Nos. 09-1645, 09-1715 & 09-1783
Piller testified that Sedgwick received the fax but did not 10
recall responding, and Spina acknowledged that he was still
at Sedgwick when the faxes arrived but left the company on
March 31 without responding. Sedgwick did not send the
proposed policy to the District until September 1999, five
months after receiving it from Crump.
As noted above, Sedgwick entered into a settlement with 11
the District before trial and is no longer a party in the lawsuit.
insured must own or operate the property in order to
schedule it.” That fax clearly informed Sedgwick—
an experienced retail insurance broker—that AISLIC
was not yet willing to include Lincoln Creek as a covered
property under the policy and needed an address for the
property on the Creek. Thus through Sedgwick, the10
District knew that at that point the Parcel would not be
covered by the policy. In addition, the March 12 fax
stated in no uncertain terms that Lincoln Creek must be
either owned or operated by the District in order for it
to be covered. Yet the District did not acquire title to the
Parcel until over seven months later on October 19, and
there is no indication in the record that the District oper-
ated or otherwise exercised control over the Parcel
when the policy was issued. Because its agent Sedgwick11
knew that “Lincoln Creek” would not be covered unless
the District owned or operated the land, the District
cannot reasonably claim to have proceeded under a
mistake that the policy would cover the Parcel before
satisfying that requirement. Absent a mistake on the
part of the District at the time the policy was issued,
reformation was not an available remedy under Wis-
consin law.

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Nos. 09-1645, 09-1715 & 09-1783 19
For these reasons, AISLIC is entitled to judgment on
the District’s reformation claim. Because there is no
judgment for which Crump may indemnify AISLIC, the
district court’s judgment against Crump on AISLIC’s
indemnity claim cannot stand. In addition, the District’s
cross-appeal concerning the district court’s denial of its
three post-trial motions is moot.
III.
Having concluded that the District is not entitled to
reformation of the policy under Wisconsin law, we REVERSE
the judgment of the district court and REMAND with
instructions to enter judgment for AISLIC. We also VACATE
the district court’s judgment against Crump on AISLIC’s
indemnity claim and REMAND with instructions to
dismiss that claim as moot. The District’s cross-appeal
is moot and is hereby DISMISSED.
3-10-10

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