Distribution agreement did not provide appellant with indemnity for its own negligence

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Anthony Wade was seriously injured on August 25, 1997, when he fell while getting out of the aerial passenger bucket of a utility truck sold to his employer by Dueco. Dueco equipped the truck with the aerial bucket and its component parts, which Terex manufactured. After installing the aerial bucket onto the truck, Dueco installed various metal steps to access it. Terex did not manufacture the steps. Wade filed a complaint against multiple parties alleging that the design, manufacture, distribution, sale, and installation of the aerial bucket were defective and unreasonably dangerous and that Dueco and Terex were negligent. Prior to this accident and lawsuit, Dueco and Terex entered into a Distribution Agreement (“the Agreement”). Dueco filed a four-count cross-claim against Terex for indemnification for any liability Dueco may have to Wade. Terex filed a motion for summary judgment on Dueco’s cross-claims and the trial court entered summary judgment for Terex on all counts. This appeal followed. Dueco contends that the trial court erred in granting summary judgment for Terex on the issue of contractual indemnification. Dueco argues that it is entitled to total indemnity for the Wade litigation under the terms of the Agreement. Terex counters that Dueco is not entitled to indemnity for Dueco’s own negligence under Wisconsin law.

Conclusion (slip op. at 11): As a matter of Wisconsin law, the Agreement did not provide Dueco with indemnity for its own negligence. The trial court’s grant of summary judgment in favor of Terex on the issue is correct.

Key Analysis (slip op. at 10): Wisconsin law is clear in requiring that to indemnify for one’s own negligence requires explicit expression of such an intention . . . The indemnification provision here does not contain such an intention and Dueco cannot be indemnified for its own negligence.

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Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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