2023 WI 42

SUPREME COURT OF WISCONSIN CASE NO.: 2021AP635

COMPLETE TITLE: Pepsi-Cola Metropolitan Bottling Company, Inc., Plaintiff-Appellant, v. Employers Insurance Company of Wausau, Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 404 Wis. 2d 337, 979 N.W.2d 627 PDC No: 2022 WI App 45

OPINION FILED: May 24, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 15, 2023

SOURCE OF APPEAL: COURT: Circuit COUNTY: Waukesha JUDGE: Ralph M. Ramirez

JUSTICES: Per curiam. NOT PARTICIPATING: BRIAN HAGEDORN, J., withdrew from participation. ANNETTE KINGSLAND ZIEGLER, C.J., did not participate.

ATTORNEYS:

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.

2 2023 WI 42 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP635 (L.C. No. 2019CV1307)

STATE OF WISCONSIN : IN SUPREME COURT

Pepsi-Cola Metropolitan Bottling Company, Inc.,

Plaintiff-Appellant, FILED v. MAY 24, 2023

Employers Insurance Company of Wausau, Sheila T. Reiff Clerk of Supreme Court

Defendant-Respondent-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PER CURIAM. 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. ¶2 BRIAN HAGEDORN, J., withdrew from participation. No. 2021AP635

¶3 ANNETTE KINGSLAND ZIEGLER, C.J., did not participate.

2 No. 2021AP635

1