2018 WI 81

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2015AP2457
COMPLETE TITLE:        American Family Mutual Insurance Company, State
                       Auto Insurance Company of Wisconsin, Property
                       and Casualty Insurance Company of Hartford, Fay
                       Walters and Farmers Insurance Exchange,
                                  Plaintiffs,
                       H.O.L.I.E. of Greenfield Avenue, Inc., Dennis
                       Kleinhans, Dorothy Grabowski, Virginia Werner,
                       Mernlyn Goodrich, Theodore Kolodzyk, Judith
                       Gorski, Linda Sutton , as the personal
                       representative of the Estate of Mary Sutton and
                       Alice Carey,
                                  Involuntary-Plaintiffs,
                            v.
                       Cintas Corporation No. 2,
                                  Defendant-Third-Party
                                  Plaintiff-Appellant-Cross-Respondent,
                       The Travelers Indemnity Company of Connecticut,
                                  Defendant-Third-Party
                                  Plaintiff-Co-Appellant,
                            v.
                       Becker Property Services LLC,
                                  Third-Party
                                  Defendant-Respondent-Cross-Appellant-
                                  Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 375 Wis. 2d 797, 899 N.W.2d 737
                                      (2017 – Unpublished)

OPINION FILED:         June 28, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 11, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              John J. DiMotto

JUSTICES:
   CONCURRED:
   DISSENTED:          A.W. BRADLEY, J., dissents, joined by
                       ABRAHAMSON, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
    For        the   defendant-respondent-cross-appellant-petitioner,
there were briefs filed by Patryk Silver, Esq., Aaron R. Berndt,
Esq., Joshua B. Cronin, Esq., and Borgelt, Powell, Peterson, and
Frauen, S.C., Milwaukee.         There was an oral argument by Patryk
Silver, Esq.


    For      the     defendant-third-Party      plaintiff-appellant-cross
respondent, there was a brief filed by               Lars E. Gulbrandsen,
Jeffrey   O.    Davis,   Leila   N.   Sahar,   and   Quarles   &   Brady   LLP,
Milwaukee.      There was an oral argument by Lars E. Gulbrandsen.




                                       2
                                                                  2018 WI 81
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.    2015AP2457
(L.C. No.   2014CV3930)

STATE OF WISCONSIN                      :            IN SUPREME COURT

American Family Mutual Insurance Company, State
Auto Insurance Company of Wisconsin, Property
and Casualty Insurance Company of Hartford, Fay
Walters and Farmers Insurance Exchange,

            Plaintiffs,

H.O.L.I.E. of Greenfield Avenue, Inc., Dennis
Kleinhans, Dorothy Grabowski, Virginia Werner,
Mernlyn Goodrich, Theodore Kolodzyk, Judith
Gorski, Linda Sutton, as the personal
representative of the Estate of Mary Sutton and
Alice Carey,

            Involuntary-Plaintiffs,
                                                               FILED
      v.
                                                          JUN 28, 2018
Cintas Corporation No. 2,
                                                             Sheila T. Reiff
            Defendant-Third-Party                         Clerk of Supreme Court


            Plaintiff-Appellant-Cross-Respondent,

The Travelers Indemnity Company of Connecticut,

            Defendant-Third-Party

            Plaintiff-Co-Appellant,

      v.

Becker Property Services LLC,

            Third-Party
          Defendant-Respondent-Cross-Appellant-
Petitioner.




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



      ¶1      DANIEL       KELLY,        J.     Becker      Property      Services      LLC

("Becker") and Cintas Corporation No. 2 ("Cintas") executed a

contract          containing         indemnification            and       choice-of-law

provisions.        A dispute arose over whether the contract entitles

Cintas     to      indemnification            for     damages   caused     by   its     own

negligence.            To answer that question, we must also resolve a

threshold dispute:            As between Wisconsin and Ohio, which law

provides the rule of decision?

      ¶2      We hold that Ohio's law governs the parties' contract,

and   that      Becker     must    defend       and    indemnify     Cintas,    even    for

damages caused by its own negligence.                        Consequently, we affirm

the   court       of    appeals,    but       (as     we   discuss    below)    on    other

grounds.1

              I.       FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶3      A    2013    fire     at    Valentino        Square    (a   senior     living

facility) caused approximately $900,000 in property damage after

the   facility's          fire-suppression             sprinkler     system     allegedly

      1
       This is a review of an unpublished decision of the court
of appeals, American Family Mutual Insurance Co. v. Cintas Corp.
No. 2, No. 2015AP2457, unpublished slip op. (Wis. Ct. App. Apr.
11, 2017), reversing an order of the Milwaukee County Circuit
Court, the Honorable John J. DiMotto presiding.



                                                2
                                                                     No.     2015AP2457



failed.       Valentino Square's owner had contracted with Becker to

manage the property.              In that capacity, Becker had contracted

with       Cintas2   in    2012   to   perform     certain   services,     including

regular        inspections        of   the       fire-suppression     system      (the

"Contract").              The   fire-suppression       system     allegedly    failed

because water in the system accumulated, froze, and then burst

the pipes.

       ¶4      Plaintiffs       (the   owner     of   Valentino    Square,    several

tenants, and the property insurers) sued Cintas, claiming the

fire-suppression system's pipes would not have burst but for

Cintas's negligent performance of its duties, or its breach of

the Contract's implied warranty that it would perform its duties

in a workmanlike manner.               Cintas tendered the defense of the

matter to Becker pursuant to the Contract's indemnity clause.

       ¶5      When Becker rejected the tender, Cintas impleaded it

as a third-party defendant.               Cintas sought indemnification for

any damages for which it may be held liable to the plaintiffs,

the costs of defense (including attorney's fees), and the costs
of enforcing the indemnification provision (including attorney's

fees).

       ¶6      Cintas moved for summary judgment on its claim that

Becker breached its obligation to defend and indemnify.                        Cintas

asserted that Ohio law should provide the rule of decision by

virtue of the Contract's choice-of-law provision.                     Becker filed

       2
       Cintas is incorporated in Ohio and has its principal place
of business in Ohio.


                                             3
                                                                 No.   2015AP2457



a cross-motion for summary judgment, arguing that the Contract

does not require it to defend or indemnify Cintas for its own

negligence.     Specifically, it argued that under Wisconsin law,

contracts purporting to indemnify a party for its own negligence

require a heightened level of clarity to be enforceable (the

"strict construction" rule).3             According to Becker, the strict

construction of indemnification provisions is a public policy

important enough to defeat the Contract's choice-of-law clause.

    ¶7       The circuit court denied Cintas's motion and granted

Becker's.     It agreed that the strict-construction rule embodied

a public policy so important that the parties cannot be allowed

to contract around it.             It then concluded that the Contract's

indemnification clause did not satisfy that rule.                  It said the

Contract      "does         not    have       any   specific     and    express

statement . . . to the effect that Cintas gets coverage for its

own negligent acts," and it does not convey that "the purpose

and unmistakable intent of the parties in entering into the

contract was for no other reason than to cover losses occasioned
by the indemnitee's own negligence."                However, the court added

that,   if   Ohio     law    had   applied     instead,   the   indemnification

    3
       Spivey v. Great Atl. & Pac. Tea Co., 79 Wis. 2d 58, 63,
255 N.W.2d 469 (1977) (stating that "[t]he general rule accepted
in this state and elsewhere is that an indemnification agreement
will not be construed to cover an indemnitee for his own
negligent acts absent a specific and express statement in the
agreement to that effect," and also establishing that "where the
indemnitor, . . . is itself free of negligence, the obligation
to indemnify an indemnitee for its own negligence must be
clearly and unequivocally expressed in the agreement").


                                          4
                                                                                 No.    2015AP2457



provision        would      have       been       sufficient      to    require        Becker    to

indemnify        Cintas     for    its       own    negligence.          Consequently,          the

circuit court dismissed Cintas's third-party complaint against

Becker.

       ¶8        The court of appeals reversed.                        It held that, even

under Wisconsin law, the Contract required Becker to defend and

indemnify Cintas for its own negligence and for the breach of

implied warranty claim.4                We granted Becker's timely petition for

review, and now affirm.

                                 II.     STANDARD OF REVIEW

       ¶9        The circuit court decided this matter on cross-motions

for summary judgment.               We review the disposition of such motions

de novo, applying the same methodology the circuit courts apply.

Green       Spring     Farms       v.    Kersten,          136    Wis. 2d 304,         315,     401

N.W.2d 816          (1987);      see    also       Borek     Cranberry      Marsh,       Inc.    v.

Jackson Cty., 2010 WI 95, ¶11, 328 Wis. 2d 613, 785 N.W.2d 615

("We       review    the    grant       of    a    motion      for     summary    judgment      de

novo, . . . .").            First, we "examine the pleadings to determine
whether      a    claim     for    relief         has   been     stated."        Green     Spring

Farms, 136 Wis. 2d at 315.                    Then, "[i]f a claim for relief has

been       stated,    the     inquiry . . . shifts               to    whether    any     factual

issues exist."             Id.     Summary judgment is appropriate only "if

the    pleadings,          depositions,            answers       to   interrogatories,          and

admissions on file, together with the affidavits, if any, show

       4
       The court of appeals did not address the choice-of-law
question.


                                                    5
                                                                          No.    2015AP2457



that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Wis.   Stat.    § 802.08(2)        (2015-16);      see   also   Columbia          Propane,

L.P.   v.    Wis.    Gas   Co.,    2003    WI 38,    ¶11,     261    Wis. 2d 70,       661

N.W.2d 776 (citing Wis. Stat. § 802.08(2) (2001-02)).

       ¶10    The     only    dispute           before   us         is     the     proper

interpretation of a contract.               This presents a question of law,

which we review de novo.             Deminsky v. Arlington Plastics Mach.,

2003        WI 15,     ¶15,        259      Wis. 2d 587,            657         N.W.2d 411

("Interpretation of a contract is a question of law which this

court reviews de novo."); see also Drinkwater v. Am. Family Mut.

Ins.   Co.,    2006    WI 56,      ¶14,    290    Wis. 2d   642,         714    N.W.2d 568

("This choice-of-law determination is a question of law subject

to   independent      appellate      review.");      Beilfuss       v.     Huffy    Corp.,

2004     WI App 118,         ¶6,     274        Wis. 2d 500,         685        N.W.2d 373

("Whether . . . the choice of forum clause and choice of law

clause are enforceable requires interpretation of the employment

agreement.      Interpretation of a contract is a question of law
which this court reviews de novo.").




                                            6
                                                                    No.     2015AP2457



                                 III.    DISCUSSION

      ¶11     Before    we    can     determine    the     enforceability    of   the

Contract's indemnification provision, we must know which state's

law to apply.          Therefore, we begin with whether we must honor

the       parties'     agreement        that      Ohio's     law    controls      the

interpretation       of      their    Contract.      We     will   then   determine

whether the Contract requires indemnification for Cintas's own

negligence and the breach of implied warranty claim.

                                 A.    Choice of Law

      ¶12     The parties agree that the Contract subjects itself to

Ohio's law;5 they disagree over whether we should enforce that

provision.       Becker says doing so would obviate and bring to

naught one of Wisconsin's important public policies, viz., the

strict construction of indemnification promises.6                   Cintas says a

rule of construction cannot embody a public policy so important

that it could nullify the parties' choice of controlling law.

For the following reasons, we agree with Cintas.

      ¶13     There is no doubt that, generally speaking, parties
are free to choose the law governing their contracts.                       Jefferis

      5
       The Contract says, in part:   "The rights and obligations
of the parties contained herein shall be governed by the laws of
the State of Ohio, excluding any choice of law rules which may
direct the application of the laws of another jurisdiction."
      6
       "In cases where the damage results solely from the
negligence of the indemnitee, and the indemnitee seeks recovery
from the indemnitor, this court and the overwhelming majority of
other state courts apply the rule that the indemnity contracts
will be strictly construed."   Algrem v. Nowlan, 37 Wis. 2d 70,
76, 154 N.W.2d 217 (1967).


                                           7
                                                                              No.     2015AP2457



v. Austin, 182 Wis. 203, 205, 196 N.W. 238 (1923) ("That parties

to a contract may expressly or impliedly agree that the law of a

jurisdiction . . . shall            control      is        beyond      question.").           But

there is a caveat:             They may not use their freedom to escape

"important        public     policies   of       a    state         whose     law    would     be

applicable        if   the   parties[']       choice           of     law   provision        were

disregarded."              Bush    v.   Nat'l             Sch.      Studios,        Inc.,     139

Wis. 2d 635, 642, 407 N.W.2d 883 (1987).

       ¶14      Therefore, our task is to decide whether our practice

of   strictly      construing       indemnification              provisions         embodies    a

public policy so important that parties may not avoid it.                                   While

we have previously said that "[a] precise delineation of those

policies which are sufficiently important to warrant overriding

a contractual choice of law stipulation is not possible,"7 we

have at least described some of the characteristics by which we

might recognize them.             They are policies that "make a particular

type       of   contract     enforceable,"           or    that       "make    a    particular

contract        provision    unenforceable,"              or   that    "protect       a   weaker
party against the unfair exercise of superior bargaining power

by another party."            Id. at 643.            Courts (not necessarily ours)

have seen those characteristics in, for example, usury laws,

unconscionability doctrines, fair dealership laws, prohibitions




       7
       Bush v. Nat'l Sch. Studios, Inc., 139 Wis. 2d 635, 643,
407 N.W.2d 883 (1987).


                                             8
                                                                                No.     2015AP2457



on covenants not to compete, and statutes of frauds.                                  Id. at 643

& n.1.8

      ¶15   Our       strict     construction           rule    contains         none    of    the

characteristics         indicative       of    a    policy       that      should       trump   a

choice-of-law         provision.          The       rule       does     not      address       the

enforceability of a type of contract, or a type of contract

provision.        And      it   applies       without         respect      to    the    parties'

relative bargaining power.                 The rule's function is simply to

ensure the parties actually intended for the indemnitee to be

indemnified not just for the negligence of others for which it

might be responsible, but for the indemnitee's own negligence as

well.     See,    e.g.,         Hastreiter         v.     Karau       Bldgs.,          Inc.,    57

Wis. 2d 746, 748, 205 N.W.2d 162 (1973) ("The rule relied on by

the     tenant    [i.e.,        strict        construction            of     indemnification

agreements       that      indemnify       the          indemnitees        for        their    own

negligence]      is    a   rule    of    construction.             The       purpose     of    the

construction of an agreement is to ascertain the intent of the

parties.").           As    such,       this       is     a    rule     of      caution,       not
prohibition.

      ¶16   If a cautionary rule of construction were enough to

nullify a choice-of-law provision, we would unnecessarily impair

      8
       See also Kellogg v. Larkin, 3 Pin. 123, 137 (1851)
("Contracts against public policy are divided, by MR. STORY,
into seven classes, as follows:  1. Contracts in restraint of
trade; 2. Contracts in restraint of marriage; 3. Marriage
brokerage contracts; 4. Wagers and gaming; 5. Contracts to
offend against the laws and public duty; 6. Usury, and
7. Trading with an enemy.").


                                               9
                                                                             No.     2015AP2457



"certainty and predictability in contractual relations."                                    See

Bush, 139 Wis. 2d at 642; see also Thurner Heat Treating Co. v.

Memco, Inc., 252 Wis. 16, 24, 30 N.W.2d 228 (1947) ("It is the

policy    of    the     law    not     only   to     encourage       the     embodiment      of

specific     and      material       provisions      in    a     contract,     but     in   the

interest of certainty and fair dealing, to require a plain and

fair statement of terms.").                   Every law, whether statutory or

common, is——at some level——an embodiment of policy.                                   Because

spotting the "important" public policies amongst all the rest is

an inexact endeavor, we do well to keep that category narrowly

focused.        If it were to expand beyond its essential kernel,

certainty       and    predictability         in     contractual           relations    would

erode in like measure because parties would find it increasingly

difficult to know which provisions or contracts a court might

preempt.       Expanding the "important" category far enough to reach

our   rule      of     strict    construction            would      make    virtually       any

contract       provision       potentially         subject     to    the     public    policy

caveat.        And     that    would    leave      parties       perennially        wondering
whether we will honor their choice-of-law decisions.                               We decline

Becker's invitation to do so, and hold that our practice of

strictly       construing        indemnification           provisions         is      not    so

important       that     it     will     defeat      a     contract's        choice-of-law

provision.

      ¶17      We     should    not     honor       the    choice-of-law           provision,

Becker said, for the additional reason that doing so would allow

Cintas to escape Wisconsin's public policy that indemnification
provisions of this sort must be conspicuous.                          Even if Becker is
                                              10
                                                                                  No.    2015AP2457



right about the conspicuousness requirement (a subject we do not

address),     it    provided      no    argument           capable          of    invoking       the

"important public policy" exception to the rule that choice-of-

law clauses are enforceable.                 Because every state law embodies a

public policy, it is in the very nature of choice-of-law clauses

that they        substitute one state's policies for another.                                    And

still we enforce them.              Under this exception, it is only when

such clauses obviate an "important public policy" that we set

them    aside.          Becker   did      not       say        why    the     conspicuousness

requirement       (if    requirement         it    be)     rises       from      the     ranks    of

workaday     public       policies      to        join    the        elites       that    are     so

important we do not allow parties to contract around them.                                       It

provided no argument, no examples, no analogies——it did not even

call this policy "important," much less provide a basis upon

which we could declare it to be so.                             We will not develop an

argument on Becker's behalf when Becker itself has chosen not to

advance one.       See Clean Wis., Inc. v. Pub. Serv. Comm'n of Wis.,

2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 ("We will
not address undeveloped arguments.").

       ¶18   Becker       also   argued       that       we    should       not    enforce       the

choice-of-law provision because it is not conspicuous (that is,

the provision is not set apart from the rest of the contract

through a larger font, emphasis, or other mechanism designed to

call a party's attention to it).                       It cites no authority for the

proposition,       but    asserts      that       if     the    choice-of-law            provision

obviates     a    law     that   requires          part        of    the    contract       to    be
conspicuous,       then    the   choice-of-law             provision         must       itself    be
                                              11
                                                                                No.   2015AP2457



conspicuous.           It     says     this        must       be     so    because      "[t]he

conspicuousness rule derives from the public policy requirement

that the signer of a contract be unmistakably informed of the

rights    and       duties    at     issue,      in   language        that         clearly   and

unequivocally         communicates          to     the       signer       the      nature    and

significance of the document being signed."                                The conclusion,

however,   does       not     follow    from       the       premise.          A   conspicuous

choice-of-law provision tells a contracting party nothing more

about    its    indemnification             obligations        than       an    inconspicuous

choice-of-law provision.               It could be far and away the most

conspicuous part of the contract and still it would merely tell

the parties which state's law will control the contract.                                     Its

conspicuousness would hold no hint as to whether the selected

state's laws are more or less favorable with respect to any

given part of the contract.

    ¶19        We   have     never    held    that       a   contract's         choice-of-law

provision must be conspicuous, and we see no reason to do so

today.     Therefore,         we     will    determine         the    enforceability         and
meaning of the Contract's indemnification provision using the

law of the State of Ohio.




                                              12
                                                                          No.    2015AP2457



                                 B.   Indemnification

       ¶20     Becker     argues      that,       even     under     Ohio       law,    the

indemnification          provision      is    unenforceable          because       it    is

ambiguous.9       The Contract says, in relevant part:

       Purchaser [Becker], at its own expense, shall defend,
       indemnify and hold harmless Seller [Cintas] from any
       claim, charge, liability, or damage arising out of any
       goods or services provided by Seller hereunder,
       including any failure of the goods or services to
       function as intended.     Purchaser acknowledges that
       Seller shall have no liability or responsibility for
       any loss or damage to persons or property resulting
       from any fire or equipment malfunction.
Becker says this language does not plainly state that Becker

must       indemnify    Cintas    for   damages      arising       from    Cintas's     own

negligence.

       ¶21     Ohio says the purpose of scrutinizing a contract is to

find and apply the parties' intent:                      "The cardinal purpose for

judicial examination of any written instrument is to ascertain

and give effect to the intent of the parties."                            Foster Wheeler

Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth.,

678 N.E.2d 519, 526 (Ohio 1997).                  "The intent of the parties to
a contract is presumed to reside in the language they chose to


       9
       "Language is ambiguous if it is reasonably susceptible of
two or more constructions."    McClorey v. Hamilton Cty. Bd. of
Elections, 720 N.E.2d 954, 957 (Ohio Ct. App. 1998).          "A
contract 'does not become ambiguous by reason of the fact that
in its operation it will work a hardship upon one of the parties
thereto.'"   Foster Wheeler Enviresponse, Inc. v. Franklin Cty.
Convention Facilities Auth., 678 N.E.2d 519, 526-27 (Ohio 1997)
(quoting Ohio Crane Co. v. Hicks, 143 N.E. 388, 389 (Ohio 1924)
(per curiam)).


                                             13
                                                                       No.    2015AP2457



employ in the agreement."             Id. (quoted source omitted); see also

Worth v. Aetna Cas. & Sur. Co., 513 N.E.2d 253, 256 (Ohio 1987)

("The nature of an indemnity relationship is determined by the

intent of the parties as expressed by the language used.").                           In

applying that language, "common words appearing in a written

instrument are to be given their plain and ordinary meaning

unless manifest absurdity results or unless some other meaning

is clearly intended from the face or overall contents of the

instrument."             Alexander      v.    Buckeye     Pipe       Line    Co.,    374

N.E.2d 146, 150 (Ohio 1978).

      ¶22     With respect to any alleged ambiguity in contractual

language, the rule in Ohio is that "quoties in verbis nulla est

ambiguitas ibi nulla expositia contra verba fienda est."                         Lawler

v.   Burt,    7     Ohio   St. 340,     349–50    (Ohio      1857)    (quoted    source

omitted).         That is to say, "[i]n the absence of ambiguity, no

exposition shall be made which is opposed to the express words

of the instrument." Herbert Broom, A Selection of Legal Maxims,

Classified and Illustrated 176 (1845); Alexander, 374 N.E.2d at
150 ("[W]here the terms in an existing contract are clear and

unambiguous, this court cannot in effect create a new contract

by   finding       an    intent   not    expressed      in    the    clear     language

employed by the parties.").

      ¶23     The       Contract's      indemnification        provision        is   not

ambiguous.        To the contrary, any greater explicitness regarding

its coverage of Cintas's own negligence would come at the cost

of   the     provision's      broad     scope.      The      duty    to     defend   and
indemnify applies to "any claim, charge, liability, or damage
                                             14
                                                                            No.    2015AP2457



arising      out     of    any    goods        or    services     provided        by     Seller

[Cintas]."         (Emphasis added.)           The term "any," of course, admits

of no exceptions.               And that term describes both the nature of

the attempt to hold Cintas liable (claims, charges, etc.), as

well as the source of harm (goods or services).                        With respect to

the    latter,      the     Contract      even        repeats    itself     for        clarity,

stating that the duty to defend and indemnify "include[es] any

failure of the goods or services to function as intended."                                    The

"goods and services" to which this phrase refers, of course, are

those supplied by Cintas.               The indemnification provision left no

possible misunderstanding about the effect of its language.                                   The

same    paragraph         goes     on     to        say   that    "Purchaser           [Becker]

acknowledges that Seller [Cintas] shall have no liability or

responsibility for any loss or damage to persons or property

resulting from any fire or equipment malfunction."                           Cintas would

have    no    such        liability      or     responsibility        because          of     the

immediately preceding sentence, which made that loss or damage

Becker's responsibility.
       ¶24    We could not say this language does not cover Cintas's

own    negligence          without      doing        considerable     damage           to     the

Contract.      First, we would need to remove the term "any" each

time it appears in the indemnification provision to create the

possibility that some claims or causes of damage might not be

included.      But that would still leave Becker's acknowledgement

that   the    effect       of    the    indemnification          language    would          leave

Cintas free of any responsibility for damage or loss consequent
upon   a     fire    or    equipment      malfunction.            Therefore,           Becker's
                                               15
                                                                           No.    2015AP2457



preferred     reading         would      require      elimination     of     the     entire

sentence containing that acknowledgment.                      In sum, we would need

to    eliminate      over         half   of     the    Contract's     indemnification

provision     just      so    it     could     plausibly      be    called       ambiguous.

Neither logic nor Ohio's law requires us to excise language for

the   purpose      of     creating        an    ambiguity     that    could        then   be

exploited by one of the parties to the Contract.

      ¶25    Nonetheless, Becker says other contractual provisions,

read in conjunction with the indemnification language, make the

duty to defend and indemnify ambiguous.10                    Specifically, it calls

our attention to the language on the first page of the Contract

promising that "[a]ll work performed will be according to NFPA,

State, and City Fire Department requirements and is guaranteed,

insured     and    done      by    licensed     personnel."         (Emphasis       added.)

Neither a guaranty nor a promise of insurance means anything, it

reasons, if the indemnification provision shields Cintas from

any   and    all    responsibility             for    the   goods    and    services      it

provides.
      ¶26    This argument has some superficial attractiveness, but

it ultimately cannot bear the weight Becker assigns it.                              Becker

      10
        We understand Becker's argument as encouraging us to
respect Ohio's recognition that "[a] fundamental principle of
contract construction requires that the document be read as a
whole."   Monsler v. Cincinnati Cas. Co., 598 N.E.2d 1203, 1209
(Ohio Ct. App. 1991); see also McClorey, 720 N.E.2d at 956 ("In
the construction of a written contract, it will be read as a
whole, and the intent of each part will be gathered from a
consideration of the whole.").       We agree that Ohio's law
requires us to read the Contract as a whole.


                                               16
                                                                             No.    2015AP2457



believes     that,       if    the     indemnification           provision    really       does

excuse Cintas from responsibility for its own negligence, then

the   promise       of    guaranteed       work      must    be    illusory.        However,

neither provision negates or makes the other ambiguous because

the Contract actually does contain a guaranty.                           It provides that

"[c]laims for defective goods or negligent services must be made

within thirty (30) days after delivery and Purchaser's exclusive

remedy      shall    be,       at      Seller's       option,      replacement       of     the

defective goods or remedying of any negligence in services or

credit or refund of the purchase price paid."                            Becker offers no

authority      for       the    proposition          that    a     limited    guaranty      is

necessarily inconsistent with an indemnification provision that

covers   the    indemnitee's            own     negligence.          Nor     is    there    any

readily-apparent              reason     that        the     two     provisions       cannot

comfortably coincide in the same contract.                          And if they can co-

exist, we must give effect to both terms.                          German Fire Ins. Co.

v. Roost, 45 N.E. 1097, 1099 (Ohio 1897) ("[N]o provision [of a

contract]      is        to    be      wholly     disregarded         because       [it     is]
inconsistent with other provisions, unless no other reasonable

construction is possible, . . . .                      If reasonable effect can be

given to both, then both are to be retained.").

      ¶27    The Contract's promise that all work would be insured

is    similarly          incapable         of        calling       the     indemnification

provision's meaning into question.                         Buying an insurance policy

does not create exposure to liability otherwise disclaimed.                                 Nor

could Cintas's representation that it has such a policy create
in Becker a contract-based expectation that Cintas would accept
                                                17
                                                                          No.        2015AP2457



liability for the risks covered by the policy.                           With respect to

which   party       will    shoulder      the    responsibility          to   defend       and

indemnify     Cintas,       the    representation          that    Cintas     carries        an

insurance policy is, at most, a nebulous suggestion that an

insurance     company       is    available      to   discharge      that       duty.        In

contrast, the Contract's indemnification provision is a specific

and explicit mandate that Becker must accept that responsibility

to   defend    and    indemnify      Cintas.          So    even    if    there       were   a

conflict      between        the     Contract's        representation            regarding

insurance     and     its    indemnification          provision      (and       we    do   not

believe there is), the specific provision would control.                                   See

Marusa v. Erie Ins. Co., 991 N.E.2d 232, 235 (Ohio 2013) ("When

faced with provisions that are arguably in conflict, we apply

the more specific provision."); German Fire Ins. Co., 45 N.E. at

1099 ("[A] special provision will be held to override a general

provision      only    where       the    two    cannot      stand       together.           If

reasonable effect can be given to both, then both are to be

retained.").
      ¶28     The     Contract's         indemnification           provision         is    not

ambiguous.      Therefore, we hold that it plainly requires Becker

to defend and indemnify Cintas in the underlying action, even

with respect to Cintas's own negligence.




                                            18
                                                              No.    2015AP2457



                                      *

      ¶29   Ohio's     law     as     it   specifically        relates      to

indemnification      agreements     confirms     our   conclusion.11      Ohio

courts examine such agreements just like any other.                 Portsmouth

Ins. Agency v. Med. Mut. Of Ohio, 934 N.E.2d 940, 944 (Ohio Ct.

App. 2009) ("Indemnity agreements must be interpreted in the

same manner as other contracts.").         And they are enforceable to

the   extent   they    do    not    contradict     Ohio's   public     policy.

Glaspell v. Ohio Edison Co., 505 N.E.2d 264, 266 (Ohio 1987)

("[A]bsent specified public policy exceptions, the law of Ohio

generally allows enforcement of indemnity agreements.").                   But

the public policy exceptions are to be narrowly applied:

           In a free and democratic society, freedom of
      contract is the general rule; public-policy limits are
      the exception.   The doctrine does not grant courts a
      roving commission to police the terms of agreements
      and must be cautiously applied lest the exception
      swallow the rule.       The Ohio Supreme Court has
      repeatedly admonished the courts against the loose
      application   of   "public    policy"  to   invalidate
      agreements, even in the context of ordinary contracts
      between private parties . . . .


      11
       Becker argued that an indemnification provision that
indemnifies an indemnitee for its own negligence must be
conspicuous    under    Wisconsin's    law,   citing   Wis.   Stat.
§ 401.201(2)(f) (2015-16) and Deminsky v. Arlington Plastics
Machinery,   2003    WI 15,   259   Wis. 2d 587,   657  N.W.2d 411.
However, it offered no similar argument with respect to Ohio's
law. We generally do not address arguments the parties have not
made, and we see no reason to depart from that tradition here.
See Clean Wis., Inc. v. Pub. Serv. Comm'n of Wis., 2005 WI 93,
¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 ("We will not address
undeveloped arguments.").


                                      19
                                                                        No.    2015AP2457



Stickovich v. City of Cleveland, 757 N.E.2d 50, 59 (Ohio Ct.

App. 2001).         The parties have not identified, nor have we found,

any public policy forbidding indemnification provisions in the

type of contract between Cintas and Becker.12

      ¶30      Indemnification       agreements       covering    the    indemnitee's

own negligence are enforceable as well.                        However, Ohio has a

rule of strict construction similar to our own:                          "Where it is

alleged     that     the    agreement      protects     an    indemnitee       from    the

financial consequences of his own negligence, the greater weight

of authority, particularly in Ohio, would construe the words of

such an agreement most narrowly."                 Glaspell, 505 N.E.2d at 266.

The     rule      applies    when    the     contracting       parties        have    such

disparate         bargaining      power    that   one   can     impose    inequitable

conditions on the other.              See Coulter v. Dayton Power & Light

Co., 731 N.E.2d 1172, 1175 (Ohio Ct. App. 1999) ("[T]he rule of

narrowly construing this type of indemnification agreement had

been developed to protect a contracting party in a disparately

weaker bargaining position from the stronger party's attempt to
impose wholly inequitable burdens upon the weaker party.").

      ¶31      The strict construction rule does not apply, however,

"when      such    burden    of    indemnification       was    assented       to     in   a

context of free and understanding negotiation."                         Glaspell, 505


      12
       Ohio does not allow indemnification agreements in
construction   contracts,   employment contracts, or   illegal
contracts. See Worth v. Aetna Cas. & Sur. Co., 513 N.E.2d 253,
257 (Ohio 1987); Glaspell v. Ohio Edison Co., 505 N.E.2d 264,
266 (Ohio 1987) (citing cases).


                                            20
                                                                                No.     2015AP2457



N.E.2d    at       266.     That     context      typically         is    present      when    the

contracting parties are capable business entities.                                    See id. at

267    ("The        parties     in     the      case       before    us        are    commercial

enterprises         of    sufficient       size      and    quality       as    to    presumably

possess        a    high      degree       of     sophistication           in        matters    of

contract."); Prudential Ins. Co. of Am. v. Corp. Circle, Ltd.,

658    N.E.2d 1066,         1069     (Ohio      Ct.    App.       1995)    ("While         clauses

limiting the liability of the drafter are ordinarily strictly

construed, such strict construction need not be applied in the

interpretation of an exculpation or indemnification agreement

entered into between business entities in a context of free and

understanding negotiation." (emphasis omitted)).

       ¶32     We think Becker is sufficiently sophisticated that it

does     not       fall    within     the       category      of     parties         the   strict

construction rule is meant to protect.                        Although the record does

not disclose a great deal about Becker, the Contract discloses

that it manages at least ten apartment complexes in southeastern

Wisconsin.          Managing that number of properties requires at least
some familiarity with matters of contract.                                It also suggests

that Becker is in a position to intelligently negotiate the

economic terms of its contracts without being overborne by its

counterparties.

       ¶33     However, even if we were to conclude that Becker is

entitled       to    the    protection          offered      by     the    rule       of   strict

construction, the Contract's indemnification provision more than

adequately          expresses        the     intention        that        Cintas       would    be


                                                21
                                                                    No.        2015AP2457



indemnified    for    its   own    negligence.        Ohio's    Supreme           Court

described this rule as follows:

    "Such an interpretation should not be given a contract
    that would make the appellant responsible for the
    consequence of a negligent act of the appellee unless
    no other meaning can be ascribed to it.     If a doubt
    existed as to its meaning, the court would resolve
    that doubt against the contention that the contract
    was intended to indemnify appellee against its own
    negligence.     Every presumption is against such
    intention."
George H. Dingledy Lumber Co. v. Erie R. Co., 131 N.E. 723, 725
(Ohio 1921) (quoting Mitchell v. S. Ry. Co., 74 S.W. 216, 217

(Ky. Ct. App. 1903)).       Ohio law does not, however, "require that

contracts purporting to hold an indemnitee harmless for its own

negligence contain express language to that effect."                           Coulter,

731 N.E.2d at 1174.

    ¶34     In this case, the same characteristics that make the

Contract's      indemnification           provision      unambiguous                also

demonstrate     it    satisfies     the     requirements       of        the     strict

construction    rule.       Interpreting     the   Contract         to    not     cover

Cintas's own negligence would require a wholesale revision to so
much language that we would be essentially reconstructing the

agreement on behalf of Becker to avoid a conclusion favorable to

Cintas.       "[N]o     other     meaning    can   be    ascribed          to"       the

indemnification provision than the one we have described.                            See

George H. Dingledy Lumber Co., 131 N.E. at 725 (quoted source

omitted).      Nor is there any "doubt . . . as to its meaning."

See id.



                                      22
                                                                No.     2015AP2457



                              IV.   CONCLUSION

    ¶35     The parties agreed that Ohio law would control the

Contract, and no public policy requires us to preempt their

agreement.         The       Contract's         indemnification        agreement

unambiguously    requires    Becker   to   defend      and   indemnify    Cintas

even for its own negligence, and this is true regardless of

whether we apply Ohio's rule of strict construction.                  Therefore,

we affirm the decision of the court of appeals.



    By    the   Court.—The    decision     of    the   court   of     appeals   is

affirmed.




                                      23
                                                                              No.   2015AP2457.awb


       ¶36    ANN     WALSH        BRADLEY,       J.        (dissenting).                "All    work

performed will be . . . insured."                      This language is on the first

page of the contract between Cintas and Becker, in bold type.                                      A

reasonable         person    reading       this      contract       language        would       think

that it means what it says.                       But not the majority.                     In the

majority's         view,    this    unequivocal          language        is    transformed         to

mean only that Cintas "carries an insurance policy."                                       Majority

op., ¶27.

       ¶37    Rather        than    giving        effect       to      this     language,        the

majority      instead       enforces       a    liability-shifting              provision        set

forth in the finest of fine print.                           The effect is that, yes,

Cintas's work is "insured," but not by Cintas.                                      Instead, the

liability-shifting            indemnity         provision           foists     liability         for

Cintas's own negligence onto Becker.                           The indemnity provision

appears      in     miniscule       type    as       part    of     an   identically-styled

laundry list that cannot be easily read without a magnifying

glass.

       ¶38    The general rule of law in Wisconsin (as well as in
Ohio) is that an indemnification provision will not be construed

to cover an indemnitee for its own negligent acts unless there

is a clearly expressed statement to that effect.                                         Spivey v.

Great Atlantic & Pac. Tea Co., 79 Wis. 2d 58, 63, 255 N.W.2d 469

(1977);      see    George    Dingledy          Lumber      Co.     v.   Erie       R.    Co.,    131

N.E.     723, 725 (Ohio 1921).                 Likewise, Wisconsin's strong public

policy is that such agreements must be conspicuous lest they be

deemed    unconscionable.              See       Deminsky         v.     Arlington         Plastics
Machinery, 2003 WI 15, ¶¶26-27, 259 Wis. 2d 587, 657 N.W.2d 411.

                                                 1
                                                                          No.    2015AP2457.awb


       ¶39       Whether    it        be    under      Wisconsin     or     Ohio     law,   an

ambiguous provision cannot be enforced.                        Additionally, Ohio law

cannot      be    invoked        to    circumvent        important    Wisconsin          public

policy considerations.                     Because the indemnification provision

here   is    both       ambiguous          and   unconscionably      inconspicuous,         the

majority's application of Ohio law must fail.

       ¶40       Accordingly, I respectfully dissent.

                                                   I

       ¶41       Becker    Property         Services     contracted       with     Cintas   to

perform regular inspections of the fire-suppression system in a

property         Becker    managed.              Majority     op.,    ¶3.          The   fire-

suppression system allegedly failed and a fire in the property

caused approximately $900,000 in damages.                      Id.

       ¶42       The property owner, several building tenants, and the

property's insurers sued Cintas for negligence and breach of

implied warranty.               Id., ¶4.         Pursuant to an indemnity provision

in the contract, Cintas sought to have Becker indemnify Cintas

for Cintas's own negligence.                     Id.
       ¶43       The majority first enforces a choice of law provision

in the contract between Cintas and Becker that requires the use

of Ohio law.         Id., ¶2.          Second, applying Ohio law, it ultimately

concludes        that     the    indemnity        provision    is    enforceable.           Id.

Consequently, it determines that Becker must indemnify Cintas

for Cintas's own negligence.

                                                  II

       ¶44       At the outset, the majority missteps in framing what
it refers to as the threshold question:                         "As between Wisconsin

                                                   2
                                                                            No.    2015AP2457.awb


and   Ohio,      which       law        provides        the   rule    of     the    decision?"

Majority op., ¶1.            The question, as framed, assumes that Ohio is

qualified to be a contender.                     It is not.

      ¶45    In framing the "threshold" issue in this fashion, the

majority is able to avoid addressing the real threshold issues

that would prove fatal to its conclusion.                             If the language of

the contract is ambiguous, under either Wisconsin or Ohio law,

the   majority's         conclusion          cannot       stand.      Next,       even    if    the

language      of     the      liability-shifting              indemnity        provision         is

unambiguous,        if       it        contravenes        important        Wisconsin       public

policy, Ohio law cannot be enforced.                           An examination of these

issues renders Ohio unqualified to even be in the ring.

      ¶46    The majority errs in three significant ways.                                  First,

it    overlooks          a    substantial               ambiguity     in     the      contract,

misconstruing        a       promise         that       Cintas's     work     is    "insured."

Second,     it     disregards            the     indemnity      clause's          inconspicuous

nature,     giving       effect         to   a   liability-shifting          provision          that

appears in the middle of a block of text, that is so small as to
be barely legible, and is not set off from the surrounding text

or emphasized in any way.                    Third, it ignores important Wisconsin

public policy considerations and erroneously applies Ohio law to

this dispute.        I address each in turn.

                                                    A

      ¶47    The     majority            errs       first     when    it     overlooks           the

ambiguity        created          by     Cintas's        promise     that     its        work    is

"insured."         On the first page of the contract, in bold type is
the statement:           "All work performed will be according to NFPA,

                                                    3
                                                                       No.   2015AP2457.awb


State, and City Fire Department requirements and is guaranteed,

insured and done by licensed personnel" (emphasis added).                                From

this language, it is reasonable to conclude that the work is

insured by the drafter of the contract, Cintas.

       ¶48    However,      the   contract       also      contains      the       indemnity

provision, which states:

       Indemnity.    Purchaser, at its own expense, shall
       defend, indemnify and hold harmless Seller from any
       claim, charge, liability, or damage arising out of any
       goods or services provided by Seller hereunder,
       including any failure of the goods or services to
       function as intended[.]    Purchaser acknowledges that
       Seller shall have no liability or responsibility for
       any loss or damage to persons or property resulting
       from any fire or equipment malfunction.
This provision shifts liability from Cintas to Becker, even in

situations of Cintas's own negligence.

       ¶49    In    Wisconsin,       the        general         rule    is        that     "an

indemnification       agreement      will       not   be    construed        to    cover   an

indemnitee for his own negligent acts absent a specific and

express statement in the agreement to that effect."                               Spivey, 79

Wis. 2d at 63.        Such indemnity agreements are subject to strict

construction.       Id.

       ¶50    The Spivey court explained the two ways in which an

obligation to indemnify an indemnitee for its own negligence

will be upheld:           (1) if the agreement clearly and unequivocally

states       that   the    indemnitee       is    to       be    covered      for     losses

occasioned by his own negligent acts; and (2) "if it is clear

that   the     purpose     and    unmistakable        intent      of   the     parties     in
entering into the contract was for no other reason than to cover


                                            4
                                                                      No.    2015AP2457.awb


losses occasioned by               the indemnitee’s own negligence . . . ."

Id. at 63-64.

       ¶51    Similarly, as the majority provides, the rule in Ohio

is     that    if     the     liability-shifting          indemnity         provision    is

ambiguous, then the provision cannot be enforced:

       Such an interpretation should not be given a contract
       that would make the appellant responsible for the
       consequence of a negligent act of the appellee unless
       no other meaning can be ascribed to it.    If a doubt
       existed as to its meaning, the court would resolve
       that doubt against the contention that the contract
       was intended to indemnify appellee against its own
       negligence.     Every presumption is against such
       intention.
Majority op., ¶33 (citing George H. Dingledy Lumber Co., 131

N.E. at 725).

       ¶52    Far from being clear and unequivocal, the contract in

this case is contradictory and therefore ambiguous.                               The bold

type    on    the     first    page    of    the   contract     and     the      indemnity

provision,          when     read     together,      are      hopelessly         ambiguous

regarding whose responsibility it is to provide insurance for

Cintas's work.

       ¶53    To explain, the bold type on the first page says that

Cintas's work is insured.               A reasonable reader would interpret

this    as    meaning       that    Cintas   would    insure    its    own       work.    A

reasonable reader would not read this language as the majority

does,    to    indicate       merely    that     Cintas    "carries         an   insurance

policy."      See majority op., ¶27.

       ¶54    However,        the    indemnity       clause    says     the       work   is
insured, but not by Cintas.                  The indemnity clause thus shifts

liability for the work to Becker.                  This of course conflicts with
                                             5
                                                                       No.    2015AP2457.awb


the    exhortation      that     the    work       is    "insured,"      rendering       the

contract as a whole irreconcilably ambiguous.

       ¶55    Under    both    Wisconsin          and   Ohio    law,    this     ambiguity

requires construing the contract against Cintas.                             The contract

does not "clearly and unequivocally" provide that Becker is to

indemnify      Cintas    for     its    own       negligence.          See    Spivey,     79

Wis. 2d at 63.         There is certainly another meaning that can be

ascribed to it.         See George H. Dingledy Lumber Co., 131 N.E. at

725.       Accordingly, I determine that the indemnity provision, is

unenforceable because it is ambiguous.

                                              B

       ¶56     In     addition     to        being      ambiguous,      the      indemnity

provision is also inconspicuous pursuant to Wisconsin law.                              This

court in Deminsky announced the bright line requirement that

"indemnity contracts in which parties agree to indemnify the

indemnitee      for     the    indemnitee's             own    negligence"       must     be

conspicuous.         259 Wis. 2d 587, ¶28.              The issue in Deminsky arose

in the context of the indemnitor's argument that the indemnity
provision       at     issue     was         unconscionable        because        it     was

inconspicuous.        Id., ¶26.

       ¶57    The     standard         for     conspicuousness           in      indemnity

contracts is set forth in Wis. Stat. § 401.201(2)(f).1                           Id., ¶28.

A term is "conspicuous" if any of the following apply:


       1
       At the time Deminsky was decided, this conspicuousness
standard was set forth in Wis. Stat. § 401.201(10).       This
statute has since been renumbered to § 401.201(2)(f). See 2009
Wis. Act 320.


                                              6
                                                            No.   2015AP2457.awb

       1. A heading in capitals equal to or greater in size
       than the surrounding text, or in contrasting type,
       font, or color to the surrounding text of the same or
       lesser size.

       2. Language in the body of a record or display in
       larger   type  than   the  surrounding text,  or  in
       contrasting type, font, or color to the surrounding
       text of the same size, or set off from surrounding
       text of the same size by symbols or other marks that
       call attention to the language.
§ 401.201(2)(f).

       ¶58    Applying the statute's conspicuousness standard to the

facts of this case, the indemnity provision here is undoubtedly

inconspicuous.         First,    the   font   size   is   incredibly     small.

Counsel for Becker brought a magnifying glass with him to oral

argument in this case to facilitate reading the provision, and

with good reason.2

       ¶59    Second, the entirety of the terms and conditions set

forth in the contract look exactly the same.                    The indemnity

provision is only one of seventeen identical-looking, fine-print

sections contained on the eighth and ninth pages of the nine-

page       contract.    The     indemnity     provision   has     no   heading,
capitalization, bolding, italics, or underlining of any kind.

Nothing about the provision grabs the reader's attention in any




       2
       The inconspicuous nature of the indemnity provision is
demonstrated by a glance at the terms and conditions section of
the contract, which is included as an appendix to this dissent.
I direct the reader's attention to the indemnity provision,
which is paragraph ten in the list of 17 items, all of which are
set forth in what Becker maintains is 4.5 point font.




                                        7
                                                                         No.       2015AP2457.awb


way.3       Accordingly, I determine that the indemnity provision is

inconspicuous and therefore unenforceable under Wisconsin law.

                                               C

        ¶60   The preceding analysis of Deminsky's conspicuousness

requirement informs my analysis of the choice of law provision.

According         to     the    choice   of   law    provision,         "The       rights    and

obligations of the parties contained herein shall be governed by

the laws of the State of Ohio, excluding any choice of law rules

which       may    direct       the   application         of    the     laws       of   another

jurisdiction."

        ¶61   Wisconsin courts have acknowledged that parties to a

contract      may        expressly    agree    that       the    law    of     a    particular

jurisdiction shall control their contractual relations.                                 Bush v.

National          Sch.     Studios,      Inc.,      139        Wis. 2d 635,          642,    407

N.W.2d 883             (1987)     (citations        omitted).             However,          this

proposition is by no means unqualified.                           Id.        Parties cannot

agree to be bound by the law of a particular jurisdiction "at

the expense of important public policies of a state whose law




        3
       In cases finding a contract provision to be conspicuous
and enforceable there was some important characteristic to the
provision that is lacking in this case.         See Deminsky v.
Arlington Plastics Machinery, 2003 WI 15, ¶29, 259 Wis. 2d 587,
657 N.W.2d 411 (highlighting the fact that the indemnity
provision at issue had a heading in capital letters and bold
print); Rainbow Country Rentals and Retail, Inc. v. Ameritech
Publ'g, Inc., 2005 WI 153, ¶42, 286 Wis. 2d 170, 706 N.W.2d 95
(emphasizing the fact that the liquidated damages provision at
issue contained a specific reference in capital letters to a
paragraph placing a limitation on available remedies).


                                               8
                                                                                No.    2015AP2457.awb


would be applicable if the parties choice of law provision were

disregarded."          Id.

      ¶62    In    concluding         that   Ohio          law        applies,        the    majority

addresses the choice of law provision without reference to the

indemnity       provision's       conspicuity.                   Yet,      before       determining

whether the choice of law provision applies, one must determine

first if there is an "important public policy" at stake.                                             See

id.

      ¶63    The majority refuses to address Becker's argument that

the     indemnification          provision            must          be     conspicuous             under

Wisconsin       law    because       "it   offered             no     similar     argument         with

respect to Ohio's law."               Majority op., ¶29 n.11.                         This analysis

puts the cart before the horse.                           Rather than diving into the

application       of    Ohio     law,      the       majority            should       instead       have

initially       scrutinized          Wisconsin's                important         public       policy

regarding       the     unconscionability                 of     inconspicuous           liability-

shifting provisions.            Such an analysis leads me to conclude that

Ohio law does not apply to this dispute in the first instance.
      ¶64    The Bush court declined to provide an exhaustive list

of public policies that would render a choice of law provision

null.     However, it specifically referenced laws "which make a

particular        contract           provision             unenforceable,"                  such     as

"unconscionability           doctrines,"             as     sufficiently              important      to

justify     disregarding         a    contract's               choice      of    law     provision.

Bush,     139     Wis. 2d at          643,       643           n.1.        The        bright        line

conspicuousness requirement announced in Deminsky is rooted in
the     doctrine        of     unconscionability.                        See      Deminsky,          259

                                                 9
                                                         No.    2015AP2457.awb


Wis. 2d 587, ¶¶26-27; see also Yauger v. Skiing Enters., Inc.,

206 Wis. 2d 76, 86-87, 557 N.W.2d 60 (1996).

     ¶65    An unconscionability doctrine is an "important public

policy" identified by the Bush court.             This policy would be

circumvented if we gave effect to the choice of law provision.4

Therefore, the choice of law provision's selection of Ohio law

is unenforceable.5      Accordingly, I determine that Wisconsin law

applies.6

     ¶66    For the foregoing reasons, I respectfully dissent.

     ¶67    I   am   authorized   to   state   that   Justice   SHIRLEY    S.

ABRAHAMSON joins this dissent.




     4
       My research has revealed no Ohio case establishing a
similar conspicuousness rule to that announced in Deminsky, 259
Wis. 2d 587.
     5
       Further, it would render Deminsky's conspicuousness
requirement entirely toothless if a party could avoid the
requirement by way of a choice of law provision that is itself
inconspicuous. See Appendix, ¶15.
     6
       I further observe that the majority's analysis results in
an opinion of limited value in either Wisconsin or Ohio.    What
is the precedential value of a Wisconsin court's interpretation
of Ohio law?    Its application appears to be limited to this
specific situation——where a choice of law provision results in a
Wisconsin court applying Ohio law.


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