Columbus School District v. Cooperative Educational Service Agency 10

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1152 Cir. Ct. No. 2017CV121

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

COLUMBUS SCHOOL DISTRICT,

PLAINTIFF,

V.

COOPERATIVE EDUCATIONAL SERVICE AGENCY 10,

DEFENDANT-THIRD-PARTY
PLAINTIFF-APPELLANT,

V.

NORTH AMERICAN MECHANICAL INC.,

THIRD-PARTY DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Columbia County:
TROY D. CROSS, Judge. Affirmed and cause remanded for further proceedings.

Before Fitzpatrick, PJ, Kloppenburg, and Nashold, JJ.
No. 2020AP1152

¶1 KLOPPENBURG, J. The Columbus School District sued
Cooperative Educational Service Agency 10 (CESA 10) regarding alleged
problems with the installation of new heating, ventilation, and air-conditioning
(HVAC) systems at two schools. CESA 10 sought indemnification from North
American Mechanical, Inc. (NAMI), a CESA 10 subcontractor. The circuit court
granted NAMI’s motion for summary judgment seeking dismissal of all claims
against it because CESA 10 failed to present any evidence that NAMI “did
anything wrong” and, therefore, NAMI could not as a matter of law be liable for
indemnification under the terms of the contract between CESA 10 and NAMI.
CESA 10 appeals.

¶2 We conclude, based on the language of the pertinent provision (the
Indemnification Provision) in the contract between CESA 10 and NAMI, that
NAMI’s duty to indemnify CESA 10 applies only to claims for damages that were
caused by NAMI, and that NAMI is entitled to summary judgment dismissing
CESA 10’s claims against it because CESA 10 points to no evidence that creates
an issue of fact as to whether NAMI caused any damages giving rise to the
District’s claims against CESA 10. Accordingly, we affirm, and we remand to the
circuit court for further proceedings on NAMI’s motion for attorney’s fees and
costs.

BACKGROUND

¶3 The District hired CESA 10, a general contractor, to perform HVAC
projects at two District schools. In addition to contracting for the performance of
the work, the parties entered into a “guaranteed energy savings agreement” that
promised certain minimum levels of energy cost savings for the District. CESA
10 in turn contracted with a number of subcontractors for different aspects of the

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projects. Pertinent here, CESA 10 contracted with one subcontractor to design the
HVAC system at the high school and with subcontractor NAMI to provide
materials for and install that HVAC system.

¶4 After discovering mold and high humidity in the schools, the District
sued CESA 10 regarding alleged problems with the new HVAC systems and the
District’s failure to realize promised energy cost savings. CESA 10 filed a third-
party complaint bringing claims against subcontractors, including claims for
indemnification against NAMI.

¶5 After the parties had engaged in substantial discovery, NAMI moved
for summary judgment seeking dismissal of CESA 10’s claims against it. NAMI
argued that it was entitled to summary judgment because, under the
Indemnification Provision in its contract with CESA 10, NAMI’s duty to
indemnify CESA 10 was limited to damages caused by NAMI’s conduct, and
CESA 10 failed to adduce any evidence that NAMI’s conduct caused any
damages.

¶6 At the summary judgment hearing, the circuit court heard argument
from the parties, including from the District’s attorney, who explained that the
District’s experts did not “fault” NAMI and “offer[ed] no opinion critical of
NAMI… and [the District’s] lay people are happy and satisfied with NAMI.” The
court also reviewed opinions offered by CESA 10’s experts concluding that there
was no wrongdoing by any subcontractor at the high school. The court determined
that NAMI was entitled to summary judgment dismissing CESA 10’s claims
against NAMI because there was no dispute of material fact as to whether NAMI
“did anything wrong,” as required by the Indemnification Provision. Specifically,
the court explained that there was no assertion by any expert that NAMI “did

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anything negligent” and there was no evidence that NAMI “did anything wrong in
the acquisition of the [HVAC] equipment or in its installation.”

¶7 NAMI subsequently filed a motion, which remains pending, seeking
attorney’s fees and costs pursuant to a fee-shifting provision in the contract
between CESA10 and NAMI.

¶8 CESA 10 appeals.

DISCUSSION

¶9 We first summarize the applicable standard of review and general
legal principles. We next interpret the Indemnification Provision, conclude that it
is triggered only insofar as NAMI caused the damages giving rise to the District’s
claims against CESA 10, and address and reject CESA 10’s arguments to the
contrary. Finally, we apply our interpretation of the Indemnification Provision to
the record and conclude that NAMI is entitled to summary judgment dismissing
CESA 10’s claims against it.

I. Standard of Review

¶10 We review a grant of summary judgment de novo. Brey v. State
Farm Mut. Auto. Ins. Co., 2020 WI App 45, ¶12, 393 Wis. 2d 574, 947 N.W.2d
205. Summary judgment is proper, and the moving party is entitled to judgment
as a matter of law “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a

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judgment as a matter of law.” WIS. STAT. § 802.08(2) (2017-18);1 Olson v. Town
of Cottage Grove, 2008 WI 51, ¶34, 309 Wis. 2d 365, 749 N.W.2d 211.

¶11 Interpretation of a written contract presents a question of law that we
also review de novo. Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI
70, ¶14, 342 Wis. 2d 29, 816 N.W.2d 853; Admanco, Inc. v. 700 Stanton Drive,
LLC, 2010 WI 76, ¶15, 326 Wis. 2d 586, 786 N.W.2d 759. In interpreting
contracts, “our goal ‘is to ascertain the true intentions of the parties as expressed
by the contractual language.’” Town Bank v. City Real Estate Dev., LLC, 2010
WI 134, ¶33, 330 Wis. 2d 340, 793 N.W.2d 476 (quoted source omitted). “[T]he
best indication of the parties’ intent is the language of the contract itself.” Id. We
presume the parties’ intentions are expressed in the language of the contract.
Kriefall, 342 Wis. 2d 29, ¶21. “‘Interpretation of an indemnification agreement,
like any other written contract, begins with the language of the agreement.’”
Fabco Equip., Inc. v. Kreilkamp Trucking, Inc., 2013 WI App 141, ¶6, 352
Wis. 2d 106, 841 N.W.2d 542 (quoted source omitted).

II. Interpretation of the Indemnification Provision

¶12 As we explain, we conclude that the Indemnification Provision
requires NAMI to indemnify CESA 10 only to the extent that NAMI’s conduct
caused the damages giving rise to the District’s claims against CESA 10.

A. The Causation Requirement in the Indemnification Provision

¶13 The Indemnification Provision reads as follows:

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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To the fullest extent permitted by law, [NAMI] shall
indemnify and hold harmless [CESA 10]… from all claims
for bodily injury and property damage that may arise from
the performance of the Subcontract Work, including
reasonable attorneys’ fees, costs and expenses, to the extent
caused by the acts or omissions of [NAMI], [NAMI’s]
subcontractors or anyone employed directly or indirectly by
any of them or by anyone for whose acts any of them may
be liable.

¶14 Consistent with the legal principles stated above, we begin with the
language of the Indemnification Provision. Fabco Equip., Inc, 352 Wis. 2d 106,
¶6. The Provision sets three prerequisites for NAMI to indemnify CESA 10.
First, the Provision requires that there be claims against CESA 10 for damages
(“[NAMI] shall indemnify and hold harmless [CESA 10] ... from all claims for
bodily injury and property damage”). Second, the Provision requires that the
damages claimed arise from NAMI’s work (“that may arise from the performance
of [NAMI’s] work”). Third, the Provision requires that the damages claimed be
caused by NAMI or someone under its control (“to the extent caused by the acts or
omissions of [NAMI], [NAMI’s] subcontractors or anyone employed directly or
indirectly by any of them or by anyone for whose acts any of them may be liable”
(emphasis added)). This last “causation clause” imposes a causation requirement
that limits the scope of the Indemnification Provision as a whole, by
unambiguously stating that NAMI’s duty to indemnify CESA 10 for claims for
damages (and associated attorney fees and legal costs) is triggered only insofar as
NAMI’s conduct (or the conduct of someone under NAMI’s control) caused the
damages giving rise to the claims.

¶15 As NAMI notes, the causation clause in the Indemnification
Provision stands in stark contrast to a separate, narrower provision in the contract
that imposes on NAMI a duty to “indemnify, defend, and hold harmless” CESA
10 against any claims brought by NAMI’s own employees or subcontractors. The

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difference in language between the two provisions shows that the parties knew
how to draft an agreement for indemnification that is not conditioned on causation,
and that they chose not do so with respect to the Indemnification Provision.

¶16 In apparent disregard of the causation clause, CESA 10 argues that it
need not prove that NAMI caused the District’s damages. CESA 10 argues that,
instead, NAMI’s duty to indemnify is triggered solely by a claim of wrongdoing
by NAMI, which CESA 10 argues creates “potential liability” for CESA 10.
CESA 10 frames all of its grounds for the argument that it need not prove that
NAMI caused the District’s damages within the concept of NAMI’s “potential
liability” as an apparent surrogate for its own “potential liability.” As we explain,
the case law on potential liability as a trigger for indemnification does not absolve
CESA 10 of the duty, under the language of the Indemnification Provision, to
show that NAMI caused CESA 10’s potential liability to the District. In the next
section, we address the various grounds CESA 10 offers for its potential liability
argument and explain why none of them have merit.

B. CESA 10’s Potential Liability Argument

¶17 We first describe the concept of potential liability in the context of
an indemnification provision as explained by Wisconsin case law. We then
address in turn each ground CESA 10 offers for its potential liability argument.

1. Potential Liability—Wisconsin Case Law.

¶18 The rule of “potential liability” in Wisconsin case law is that an
indemnitee who reaches a good-faith settlement with the original plaintiff based
on the indemnitee’s potential liability may then base an indemnification claim on
that settlement. “Potential liability will defeat the conclusion that a payment was

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voluntary,” as is required to support an indemnification claim by the party making
the payment. Kriefall, 342 Wis. 2d 29, ¶42. See also, Barrons v. J. H. Findorff
& Sons, Inc., 89 Wis. 2d 444, 455–56, 278 N.W.2d 827 (1979) (“an indemnitee
that had given the indemnitor the choice of approving the settlement or taking over
the defense of the action need only show potential, rather than actual, liability to
the plaintiff and that the settlement was reasonable”) (discussing and adopting rule
from Parfait v. Jahncke Service, Inc., 484 F.2d 296 (5th Cir. 1973)); Deminsky
v. Arlington Plastics Mach., 2003 WI 15, ¶47, 259 Wis. 2d 587, 657 N.W.2d 411
(when facing claim for indemnification based on settlement, “indemnitor is
entitled to produce evidence that the settlement was unreasonable, including
evidence that the indemnitee faced no potential liability or that the settling parties
were involved in fraud or collusion.”).

¶19 Whether the indemnification claim is successful depends on the
language of the applicable indemnification provision. Wisconsin courts have
endorsed the indemnitee’s potential liability to the original plaintiff as a trigger for
indemnification, provided that the underlying circumstances regarding the
damages giving rise to the claims are clearly covered by the indemnification
agreement. For example, in Barrons, our supreme court considered the
application to a settlement of an indemnification agreement that included a
requirement that damages be caused by the indemnitor or someone under the
indemnitor’s control. Barrons, 89 Wis. 2d 444, 451, 455-56. The indemnification
claim came before the court on stipulated facts and the indemnitor’s
subcontractor’s negligence was established as fact before settlement. Id. at 448,
455-56. Because the circumstances underlying the lawsuit were clearly embraced
by the language of the indemnification agreement, the indemnitee needed only to
show its “potential liability” to the plaintiff in order to maintain its indemnification

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claim against the indemnitor. Id. Similarly, in Mikula v. Miller Brewing Co.,
2005 WI App 92, 281 Wis. 2d 712, 701 N.W.2d 613, this court considered an
indemnification agreement that required the subcontractor to indemnify the owner
for any damages “incidental to the execution of work.” Id., ¶¶1, 36. Because we
determined that the circumstances underlying the lawsuit were “incidental to the
execution of work” and thus fell within the scope of the indemnification
agreement, we allowed the owner to maintain its claim for indemnification against
the indemnitor subcontractor before the owner’s liability had been settled or
adjudicated. Id., ¶36.

¶20 In sum, where an indemnitee’s settlement with the original plaintiff
is based on the indemnitee’s potential liability, the settlement is involuntary. The
indemnitee’s involuntary payment will trigger a claim for indemnification if the
circumstances giving rise to the original suit are unambiguously covered by the
language of the indemnification agreement. As we have concluded above, the
Indemnification Provision here covers only claims against CESA 10 for damages
that NAMI caused.

2. CESA 10’s Potential Liability Argument Based on Kriefall.

¶21 The only Wisconsin law CESA 10 cites for its proposition that
NAMI’s duty to indemnify is triggered solely by CESA 10’s potential liability is
Kriefall, 342 Wis. 2d 29, ¶59. CESA 10 relies on the following statements in
Kriefall: “When discussing an alleged breach of the duty to defend under an
indemnification agreement, we have noted that an indemnitor’s duty to defend
does not depend on the merits of the claim asserted. Instead, the duty to defend
arises when potential liability is asserted against the indemnitee.” Id., ¶59

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(emphasis added) (internal citations omitted). A more thorough examination of
Kriefall shows why CESA 10’s reliance on this language is inapposite.

¶22 Kriefall concerned, in pertinent part, a situation in which the
indemnitor “repeatedly refused to accept” the indemnitee’s tenders of defense.
Id., ¶48-49. As the court explained, the indemnification agreement at issue in that
case “explicitly state[d] that [the indemnitor] promised to defend [the indemnitee]
‘from all actions, suits, claims and proceedings.’” Id., ¶60 (emphasis added). The
contractual language in that case contained “no stated limit on [the indemnitor’s]
duty to defend.” Id., ¶58. “Accordingly, regardless of [the indemnitee’s] ultimate
liability, [the indemnitor] was obligated to honor its duty to defend ….” Id., ¶60.
Because Kriefall concerned a duty to defend on which the contract imposed “no
stated limit,” id., ¶58, whereas the Indemnification Provision here concerns a duty
to indemnify that is expressly limited by a causation requirement regarding the
indemnitor’s conduct, the case does not support CESA 10’s argument that NAMI
must indemnify CESA 10 merely based on CESA 10’s potential liability for the
damages claimed by the District.

3. CESA 10’s Potential Liability Argument Based on Non-Wisconsin Case Law

¶23 CESA 10 cites case law from other jurisdictions for the premise that
“the duty to indemnify mirrors the duty to defend in that it turns upon allegations
and potential liability, rather than proof of actual liability.” These cases are not
binding on this court. State v. Muckerheide, 2007 WI 5, ¶7, 298 Wis. 2d 553, 725
N.W.2d 930 (“Although a Wisconsin court may consider case law from such
other jurisdictions, obviously such case law is not binding precedent in Wisconsin,
and a Wisconsin court is not required to follow it.”). However, for the sake of
completeness, we distinguish the cases cited by CESA 10 because examining the

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underlying contract language in each case helps to explain why CESA 10’s
“potential liability” argument fails.

¶24 Each case CESA 10 cites, like Wisconsin case law, uses “potential
liability” to refer to the indemnitee’s potential liability to the original plaintiff, not
to the indemnitor’s potential liability. See Camp, Dresser & McKee, Inc. v. Paul
N. Howard Co., 853 So. 2d 1072, 1079-80 (Fla. Dist. Ct. App. 2003) (“a party
seeking indemnification must establish that the settlement was made based on his
[or her] potential liability to the plaintiff ... because the indemnitee must not be a
mere volunteer who has settled the underlying claim when there was no exposure
to legal liability that obligated him or her to do so.”); Pennant Serv. Co., Inc. v.
True Oil Co., LLC, 249 P.3d 698, 702, 707 (Wyo. 2011) (same); Federal Ins. Co.
v. Binney & Smith, Inc., 913 N.E.2d 43, 48-49 (Ill. Ct. App. 2009) (in order to
receive indemnification of settlement from insurer, an insured must show that he
or she faced potential liability in the underlying action); Premcor Refin. Grp., Inc.
v. Matrix Serv. Indus. Contractors, Inc., No. CV 07C-01-095 ALR, unpublished
slip op. at 3, 6 (Del. Super. Ct. Nov. 18, 2013) (same); Gaspard v. Offshore Crane
& Equip., Inc., No. CIV. A. 94-261, 1998 WL 388597, at 9 (E.D. La. July 8,
1998) (“indemnitee will only be required to show potential liability to the original
plaintiff in order to support his claim over against the indemnitor.” (unpublished
opinion) (citation omitted)); McNamara v. Benchmark Ins. Co., 261 So. 3d 213,
221 (Ala. 2017) (in pursuing indemnification after settlement with plaintiff,
indemnitee “does not have to show its actual liability to the original plaintiff ....
‘[T]he indemnitor is bound by any good faith reasonable settlement, and the
indemnitee need only show potential liability.’” (quoted source omitted)).

¶25 Furthermore, the cases on which CESA 10 seeks to rely show that,
also like Wisconsin, other jurisdictions condition potential liability as a trigger for

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indemnification on a determination that the circumstances giving rise to the
settlement were covered by the parties’ indemnification agreement. See, e.g.,
Gaspard, 1998 WL 388597, at 1, 10 (owner of oil supply vessel required to
indemnify oil company in settlement for accident where “the accident did come
within the scope of the indemnification agreement”); Federal Ins. Co, 913 N.E.2d
at 53-55 (insurer required to indemnify manufacturer for settlement where contract
required indemnification “even if any of the allegations of the suit against the
insured are groundless, false or fraudulent.”); Premcor Refin. Grp., Inc., 2013
WL 6113606, at 4, 6 (insurer required to indemnify oil refiner in wrongful death
settlement where indemnification agreement required insurer to indemnify refiner
for deaths “aris[ing] out of [refiner’s] work or operations” and facts established
that deaths “arose out of [refiner’s] work.”); Pennant Serv. Co., Inc., 249 P.3d at
707 (contractor required to indemnify oil well operator where facts established
that employee was burned due to contractor’s negligence and indemnification
agreement required contractor to indemnify operator for settlements or judgments
arising out of contractor’s acts or omissions).

¶26 In sum, the case law on which CESA 10 seeks to rely shows that,
like Wisconsin, other jurisdictions endorse the indemnitee’s potential liability to
the original plaintiff as a trigger for indemnification provided that the underlying
circumstances giving rise to the claims against the indemnitee are covered by the
indemnification agreement. As stated, that means here that the circumstances
giving rise to CESA 10’s potential liability—the damages claimed by the
District—must have been caused at least in part by NAMI. Nothing in Wisconsin
law or in the authority cited from other jurisdictions supports the proposition that
to obtain indemnification the indemnitee need only show that it is potentially
liable for any claim against it without a determination of whether the claim is

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covered by the indemnification agreement. Nor do any of the cited cases suggest
that potential liability on the part of the indemnitor, rather than the indemnitee,
triggers a duty to indemnify independent of the language of the indemnification
agreement.

4. CESA 10’s Potential Liability Argument Based on “Reasonable Attorney’s
Fees, Costs and Expenses.”

¶27 In its appellant’s brief, CESA 10 concedes that the Indemnification
Provision does not “explicitly articulate” NAMI’s duty “to defend claims arising
out of [NAMI’s] work,” which appears to imply a concession that the
Indemnification Provision requires evidence that NAMI caused the damages
claimed, consistent with our interpretation above. Nevertheless, CESA 10 argues
that the language permitting CESA 10 to recover “reasonable attorney’s fees, costs
and expenses” “evidences the parties’ intent for NAMI to be responsible for costs
and expenses arising from claims about its work” absent any such evidence of
causation. In its reply brief, CESA 10 reiterates its argument that the attorney’s
fees language mandates that NAMI must “indemnify CESA 10 for non-
meritorious claims, as well as those with merit.” CESA 10’s reliance on the
attorney’s fees language fails because it disregards the causation clause, which
unambiguously applies to attorney’s fees as well as to damages.

¶28 The causation requirement in the Indemnification Provision makes it
unreasonable to read the Provision as requiring that NAMI pay for CESA 10’s
legal costs regardless of the claim’s merits. Specifically, it would not make sense
for the provision to require that NAMI pay damages only to the extent caused by
NAMI but pay legal fees regardless of merit or causation. CESA 10’s argument
that NAMI must pay for attorney’s fees and legal costs for claims “about its work”
requires that we read the Indemnification Provision to reference only damages

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from “claims that arise” from NAMI’s work, and ignore the qualifying causation
clause. Parties can certainly contract for indemnification without a causation
requirement. See, e.g., Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38,
284 N.W.2d 692 (Ct. App. 1979), aff’d, 100 Wis. 2d 120 (subcontractor’s
obligation to indemnify even where injury was caused solely by general
contractor’s active negligence unless subcontractor was “diligently trying to
minimize” possibility of damages placed “a heavy burden on the subcontractor,
but it is a burden for which it bargained.”); Mikula, 281 Wis. 2d 712, ¶36
(contract required the subcontractor to indemnify owner for any damages
“incidental to the execution of work”). However, the contract here unambiguously
includes a causation requirement, and we “avoid interpreting contracts to make
portions superfluous.” Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶81, 348
Wis. 2d 631, 833 N.W.2d 586. We will not excise the causation requirement, a
burden for which CESA 10 bargained, from the contract.

5. CESA 10’s Potential Liability Argument Based on “Act or Omission.”

¶29 CESA 10 argues that NAMI’s performance of the HVAC work is the
“act or omission” that “caused” the District’s claims, and that nothing in the
contract requires any act or omission by NAMI to have been due to negligence or
wrongdoing. This argument fails because it misreads and misapplies the
Indemnification Provision, which, as explained above, separately requires that the
claims “arise from” NAMI’s work, that the claims be for damages, and that the
damages claimed be “caused by” NAMI’s work. Here, the District’s claims did
not arise from the mere fact that the HVAC work was completed, but rather from
damages due to allegedly negligent performance of the HVAC work. Thus, the
Indemnification Provision requires that NAMI caused the damages claimed based

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on allegations of negligent performance, meaning that NAMI itself performed
negligently.

6. CESA 10’s Potential Liability Argument Based on “May Be” and “To the
Fullest Extent Permitted by Law.”

¶30 CESA 10 argues that the words “may be” in the clause “for whose
acts any of them may be liable” “cannot be construed as anything other than a
reference to potential liability, rather than actual liability.” It makes the same
argument with respect to the clause “to the fullest extent permitted by law,”
arguing that this clause shows that the Indemnification Provision “is intended—as
the [clause] suggests—to incorporate the most extensive indemnification allowed
under applicable law,” which, according to CESA 10, must include “potential
liability.” This argument ignores the language in the Provision that explicitly
limits the duty to indemnify to claims for damages “caused by” NAMI or someone
under NAMI’s control. CESA 10’s argument is yet another attempt to excise the
causation requirement from the Indemnification Provision and therefore does not
persuade. See Town Bank, 330 Wis. 2d 340, ¶33 (“our goal ‘is to ascertain the
true intentions of the parties as expressed by the contractual language.’”) (quoted
source omitted).

¶31 In sum, none of CESA 10’s grounds for its potential liability
argument disturb our conclusion that, based on the language of the
Indemnification Provision, the circumstances giving rise to CESA 10’s potential
liability—negligent performance resulting in claimed damages—must have been
caused at least in part by NAMI. We now apply the language of the
Indemnification Provision to NAMI’s motion for summary judgment seeking
dismissal of CESA 10’s indemnification claims against it.

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III. Summary Judgment

¶32 The District’s claims against CESA 10 alleged damages from mold
contamination, high humidity, and failure to achieve promised energy savings
costs. Under the language of the Indemnification Provision, some “act or
omission” by NAMI must have caused these problems in order for NAMI’s duty
to indemnify CESA 10 to be triggered. Therefore, in order to defeat NAMI’s
motion for summary judgment seeking dismissal of CESA 10’s claims for
indemnification, CESA 10 must adduce evidence that at least creates a dispute of
material fact as to whether NAMI caused the mold, high humidity, and high
energy costs giving rise to the District’s claims. See Maryland Arms Ltd. P’ship
v. Connell, 2010 WI 64, ¶¶70, 112, 326 Wis. 2d 300, 786 N.W.2d 15 (interpreting
lease contract where lessee was responsible for damages “caused by the acts of the
Lessee” and stating that “[c]ausation is normally a fact question”); see also WIS.
STAT. § 802.08(3) (party opposing summary judgment is obliged to “set forth
specific facts showing that there is a genuine issue for trial”).

¶33 CESA 10 does not point to any witness who identifies any act or
omission by NAMI as the cause of the District’s claimed damages. CESA 10 does
not cite any of the exhibits, affidavits, expert reports, or depositions produced in
the previous three years of litigation to show that there is a genuine issue of fact as
to whether NAMI caused the claimed damages. We conclude that NAMI is
entitled to summary judgment dismissing all of CESA 10’s claims because CESA
10 presents no facts at all that establish a dispute of fact as to whether NAMI
caused the damages claimed by the District.

¶34 We now summarize CESA 10’s arguments to the contrary and
explain why we reject them.

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¶35 First, CESA 10 argues that summary judgment is improper because
the School District’s complaint and its mediation statement mention installation of
the HVAC system, and NAMI performed the installation. The record citations do
not provide factual or legal support for CESA 10’s arguments.

¶36 Factually, both of the cited references are general references to
installation and do not specify that NAMI made installation errors that caused the
District’s problems with mold or humidity.

¶37 Legally, CESA 10’s reliance on the complaint and post-summary
judgment mediation is inapt. CESA 10’s reliance on the complaint fails because,
at the summary judgment stage, a party “may not rest upon mere allegations.”
WIS. STAT. § 802.08 (3). A party “may not rely on allegations in the complaint to
oppose a defendant’s summary judgment motion, because the complaint is not
evidentiary.” Tews v. NHI, LLC, 2010 WI 137, ¶82, 330 Wis. 2d 389, 793
N.W.2d 860 (citation omitted). CESA 10’s reliance on the District’s mediation
statement fails because the mediation record is not part of the summary judgment
record. Because the mediation occurred after the circuit court considered NAMI’s
summary judgment motion, our review of the summary judgment decision does
not include review of the mediation records. As we have explained, “[O]nly the
summary judgment submissions are relevant to the question whether the court
properly [decided] summary judgment.” H & R Block E. Enterprises, Inc. v.
Swenson, 2008 WI App 3, ¶27 n.9, 307 Wis. 2d 390, 745 N.W.2d 421. Thus,
material in mediation that was presented after the summary judgment decision was
issued is not pertinent to our review.

¶38 Third, CESA 10 argues that affirming the circuit court’s grant of
summary judgment would penalize CESA 10 for maintaining its innocence of

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No. 2020AP1152

liability and that of its subcontractors. CESA 10 argues that, for public policy
reasons, a defendant should not have to prove the case against itself as part of its
burden of proof in its indemnification case. We reject this argument because its
premise is faulty. For CESA 10’s indemnification claim to survive summary
judgment, it need only show that the circumstances giving rise to the District’s
claimed damages fall within the scope of the Indemnity Provision, not that the
School District’s claims of negligence are true. See, Mikula, 281 Wis. 2d 712,
¶36 (reversing declaratory judgment in favor of indemnitor where fact
circumstances underlying claim fell within scope of indemnity agreement). If the
record contains testimony or affidavits that create a dispute of fact as to whether
NAMI caused the School District’s humidity and mold problems, CESA 10 may
point to that evidence in opposing NAMI’s motion for summary judgment on the
indemnification claim while still maintaining that neither it nor its subcontractors
were in fact negligent in the underlying lawsuit. As explained above, CESA 10
has failed to do so.

CONCLUSION

¶39 For the reasons stated, we affirm the circuit court’s order granting
NAMI’s motion for summary judgment and dismissing CESA 10’s claims against
it, and we remand to the circuit court for further proceedings on NAMI’s motion
for attorney’s fees and costs.

By the Court.—Order affirmed and cause remanded for further
proceedings.

Not recommended for publication in the official reports.

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