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(2017 – Unpublished)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:
2

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.
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,

 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 

FILED

JUN 28, 2018

Sheila T. Reiff

Clerk of Supreme Court
2

 Defendant-Respondent-Cross-AppellantPetitioner.

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.
No. 2015AP2457 

3

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.
No. 2015AP2457 

4

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").
No. 2015AP2457 

5

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.
No. 2015AP2457 

6

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.").
No. 2015AP2457 

7

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).
No. 2015AP2457 

8

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).
No. 2015AP2457 

9

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.").
No. 2015AP2457 

10

"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 
No. 2015AP2457 

11

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-oflaw 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 
No. 2015AP2457 

12

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.
No. 2015AP2457 

13

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)).
No. 2015AP2457 

14

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 
No. 2015AP2457 

15

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 
No. 2015AP2457 

16

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.
No. 2015AP2457 

17

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 coexist, 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 
No. 2015AP2457 

18

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.
No. 2015AP2457 

19

*

¶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.").
No. 2015AP2457 

20

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).
No. 2015AP2457 

21

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 
No. 2015AP2457 

22

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.
No. 2015AP2457 

23

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.
No. 2015AP2457.awb

1

¶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.
No. 2015AP2457.awb

2

¶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 firesuppression 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 
No. 2015AP2457.awb

3

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, 
No. 2015AP2457.awb

4

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 
No. 2015AP2457.awb

5

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 
No. 2015AP2457.awb

6

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.
No. 2015AP2457.awb

7

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 ninepage 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.
No. 2015AP2457.awb

8

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).
No. 2015AP2457.awb

9

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 liabilityshifting 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 
No. 2015AP2457.awb

10

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.