2021 WI App 34

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2020AP978

Complete Title of Case: 

TYLER A. MUELLER AND LINDSEY MUELLER,

 PLAINTIFFS-INTERVENING RESPONDENTS,

 V.

BULL’S EYE SPORT SHOP, LLC AND 

THE CINCINNATI INSURANCE COMPANY,

 DEFENDANTS-THIRD-PARTY PLAINTIFFS-APPELLANTS,

 V.

JORDAN M. MUELLER AND AMERICAN MODERN PROPERTY AND 

CASUALTY INSURANCE CO.,

 THIRD-PARTY DEFENDANTS-RESPONDENTS.

Opinion Filed: April 29, 2021

Submitted on Briefs: December 10, 2020

JUDGES: Fitzpatrick, P.J., Blanchard, and Graham, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendants-third-party plaintiffs-appellants, the 

cause was submitted on the briefs of Daniel W. Varline and Todd 

Joseph Koback of Davczyk & Varline, LLC, Wausau. 
2

Respondent

ATTORNEYS: On behalf of the third-party defendants-respondents, the cause was 

submitted on the brief of Gregory J. Duncan and Stephen M. 

Warner of Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 

Minneapolis, Minnesota. 

Intervening Respondent

ATTORNEYS: On behalf of the plaintiffs-intervening respondents, the cause was 

submitted on the brief of C. M. Bye, Martha H. Heidt and 

Cristina M. Wirth of Bye, Goff & Rohde, Ltd., River Falls. 
2021 WI App 34

COURT OF APPEALS

DECISION

DATED AND FILED

April 29, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP978 Cir. Ct. No. 2018CV81

STATE OF WISCONSIN IN COURT OF APPEALS

TYLER A. MUELLER AND LINDSEY MUELLER,

 PLAINTIFFS-INTERVENING RESPONDENTS,

 V.

BULL’S EYE SPORT SHOP, LLC AND THE CINCINNATI 

INSURANCE COMPANY,

 DEFENDANTS-THIRD-PARTY PLAINTIFFS-APPELLANTS,

 V.

JORDAN M. MUELLER AND AMERICAN MODERN PROPERTY 

AND CASUALTY INSURANCE COMPANY,

 THIRD-PARTY DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Clark County: 

LYNDSEY BRUNETTE, Judge. Affirmed. 

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.
No. 2020AP978

2

¶1 FITZPATRICK, P.J. Tyler Mueller was injured while hunting when 

a gun he was holding discharged. The gun was owned by Tyler’s brother, Jordan 

Mueller.1 

¶2 Tyler brought this lawsuit against Bull’s Eye Sports Shop, the 

business that assembled the gun and sold it to Jordan, based on Bull’s Eye’s alleged 

negligence. Bull’s Eye brought a third-party claim against Jordan, and Tyler later 

brought a claim against Jordan, both alleging that Jordan’s negligence caused 

Tyler’s injuries. 

¶3 Jordan was immediately aware of the incident in which Tyler was

injured and later became aware of potential litigation regarding the gun and Tyler’s 

injuries. Nevertheless, after becoming aware of potential litigation, Jordan had the 

gun materially altered, and a part of the gun is still missing. Both Tyler and Bull’s 

Eye brought motions in the circuit court asking that Jordan be sanctioned for his 

spoliation of the gun evidence.2 Prior to the circuit court ruling on those motions, 

Tyler and Jordan entered into a Pierringer release, and Jordan was dismissed from 

this action based on the terms of that release.3 The circuit court found that Jordan 

intentionally spoliated evidence regarding the gun. As a sanction for those 

intentional acts of Jordan, the circuit court ordered that, at the trial in this case, the 

 

1

 We generally refer to Tyler and Jordan by their first names to avoid confusion.

2

 “Spoliation is the ‘intentional destruction, mutilation, alteration, or concealment of 

evidence.’” American Fam. Mut. Ins. Co. v. Golke, 2009 WI 81, ¶21, 319 Wis. 2d 397, 768 

N.W.2d 729 (quoting BLACK’S LAW DICTIONARY 1409 (7th ed. 1999)). 

3

 A Pierringer release “operates to impute to the settling plaintiff whatever liability in 

contribution the settling defendant may have to non[-]settling defendants and to bar subsequent 

contribution actions the non[-]settling defendants might assert against the settling defendants.” 

Fleming v. Threshermen’s Mut. Ins. Co., 131 Wis. 2d 123, 131, 388 N.W.2d 908 (1986) (citing 

Pierringer v. Hoger, 21 Wis. 2d 182, 193, 124 N.W.2d 106 (1963)). 
No. 2020AP978

3

jury will receive an instruction from the court stating that the jury may draw an 

adverse inference against Jordan regarding that spoliated evidence. 

¶4 Bull’s Eye appeals and makes two primary arguments. First, Bull’s 

Eye contends that the circuit court erred in deciding which sanction to impose 

against Jordan for his spoliation of the gun evidence. Bull’s Eye argues that the 

circuit court should have dismissed Tyler’s claims against it as a sanction for 

Jordan’s spoliation of evidence. We reject Bull’s Eye’s argument and conclude that 

the circuit court did not erroneously exercise its discretion in selecting the spoliation 

inference instruction as the sanction. Second, Bull’s Eye argues that Tyler’s claim 

against Bull’s Eye must be dismissed based on the following chain of propositions 

advanced by Bull’s Eye. Indemnity principles require that, based on Jordan’s 

intentional spoliation of evidence, Jordan must indemnify Bull’s Eye for any 

negligent conduct of Bull’s Eye that caused Tyler’s injuries. By operation of the 

Pierringer release between Tyler and Jordan, Jordan’s intentional conduct in 

spoliating evidence is imputed to Tyler, which in turn requires that Tyler indemnify 

Bull’s Eye for any negligent conduct of Bull’s Eye that caused Tyler’s injuries. As 

a result, according to Bull’s Eye, Tyler’s claim against Bull’s Eye must be 

dismissed. We reject Bull’s Eye’s argument because, under these circumstances, 

Jordan does not owe an indemnity obligation to Bull’s Eye based on his intentional 

spoliation of evidence. 

BACKGROUND

¶5 The following material facts are not in dispute. 
No. 2020AP978

4

¶6 Tyler was injured in November 2017 when the AR-15 he was carrying

while hunting accidently discharged multiple times.4 Tyler was struck in the foot 

and sustained substantial injuries. 

¶7 Jordan purchased the AR-15 from Bull’s Eye. In addition to selling 

the rifle, Bull’s Eye also assembled the rifle prior to purchase. 

¶8 Immediately following the shooting accident, the AR-15 was taken 

into possession by law enforcement. The gun was returned to Jordan in January 

2018. In February 2018, Jordan took the gun to Bull’s Eye. Prior to that time, and 

as discussed later in this opinion, Jordan received communications from Tyler 

indicating that litigation regarding the gun and Tyler’s injuries was likely. A Bull’s 

Eye employee who inspected the AR-15 made material changes to the gun with 

Jordan’s permission.5 A retention plate installed in the gun by Bull’s Eye has since 

gone missing. 

¶9 In May 2018, Tyler6 brought this lawsuit against Bull’s Eye and its 

liability insurer, Cincinnati Insurance Company,7alleging that Bull’s Eye’s 

negligence was a cause of the injuries Tyler suffered as a result of the shooting 

 

4

 We follow the lead of the parties and the circuit court and refer to the AR-15 style rifle 

at issue in this case as either “the AR-15” or “the gun.” We refer to the November 2017 incident 

in which Tyler was injured as “the shooting accident.” 

5

 The circuit court determined that the record does not support a finding that Bull’s Eye or 

its employee knew at that time that the gun was a cause of injuries or that litigation may be 

commenced regarding the gun and those injuries.

6

 Lindsey Mueller is Tyler’s spouse and is also a plaintiff in this lawsuit. For convenience, 

we refer to Tyler and Lindsey collectively as plaintiffs as “Tyler.”

7

 We refer to Bull’s Eye and Cincinnati Insurance Company collectively as defendants as 

“Bull’s Eye.” 
No. 2020AP978

5

accident. Bull’s Eye brought a third-party complaint against Jordan alleging that 

Jordan’s negligence “caused or contributed to the injuries and damages alleged by 

... Tyler.” In an amended complaint, Tyler realleged the allegations set forth in his 

original complaint against Bull’s Eye, and also stated a claim against Jordan and 

Jordan’s liability insurer, American Modern Property and Casualty Insurance 

Company, asserting that Jordan’s negligence was a cause of Tyler’s injuries.8 

¶10 Tyler and Bull’s Eye filed separate motions in the circuit court 

requesting sanctions against Jordan for spoliating the gun evidence. Each alleged 

that, even though Jordan knew that the condition of the AR-15 at the time of the 

shooting accident would be a central issue in litigation, Jordan manipulated the AR15 after the shooting accident, had Bull’s Eye make material changes to the gun, 

and is responsible for critical evidence now missing. Bull’s Eye requested in that 

motion that, as a potential sanction for Jordan’s spoliation of evidence, the circuit 

court should read to the jury at trial the standard instruction on spoliation of evidence 

which instructs the jury that it may, but is not required to, infer that a party spoliated 

evidence because such evidence is unfavorable to that party.9 

 

8

 We refer to Jordan and American Modern Property Casualty Insurance Company 

collectively as defendants as “Jordan.” 

9

 WISCONSIN JI—CIVIL 400 states in its standard form: 

You may, but are not required to, infer that (plaintiff) 

(defendant) (describe spoliation) because producing that evidence 

would have been unfavorable to (plaintiff)’s (defendant)’s 

interest.

(For example: The defendant destroyed all of his medical 

records for patient care provided prior to 2005. You may, but are 

not required to, infer that the defendant destroyed his medical 
No. 2020AP978

6

¶11 About one month after Tyler and Bull’s Eye filed those motions, the 

circuit court and Bull’s Eye were notified that Tyler and Jordan had entered into a 

Pierringer release in exchange for Jordan’s insurer paying Tyler its policy limits of 

$300,000. As noted, a Pierringer release “operates to impute to the settling plaintiff 

[(here, Tyler)] whatever liability in contribution the settling defendant [(here, 

Jordan)] may have to non[-]settling defendants [(here, Bull’s Eye)], and to bar 

subsequent contribution actions the non[-]settling defendants might assert against 

the settling defendants.” Fleming v. Threshermen’s Mut. Ins. Co., 131 Wis. 2d 

123, 131, 388 N.W.2d 908 (1986) (citing Pierringer v. Hoger, 21 Wis. 2d 182, 193, 

124 N.W.2d 106 (1963)). In addition, in a Pierringer release, the settling plaintiff 

is generally limited in his or her recovery from a non-settling defendant to the 

unsatisfied portion of the damages; that is, the part of the damages attributable to 

the non-settling defendant. Swanigan v. State Farm Ins. Co., 99 Wis. 2d 179, 197-

98, 299 N.W.2d 234 (1980). 

¶12 Approximately one month after Tyler and Jordan entered into the 

Pierringer release, Bull’s Eye filed a supplemental motion for sanctions against 

Jordan. Bull’s Eye alleged in that motion that, in addition to the spoliation of the 

AR-15 described in its previous motion, Jordan also spoliated cell phone data and 

records. In that supplemental motion, Bull’s Eye requested that the circuit court 

grant the sanctions it requested in its previous motion, including the spoliation 

inference instruction. Further, Bull’s Eye requested relief based on the operation of 

the Pierringer release. More particularly, Bull’s Eye requested that the circuit court 

 

records from prior to 2005 because producing that evidence would 

have been unfavorable to defendant’s interest.)

For convenience, we refer to this as the “spoliation inference instruction.”
No. 2020AP978

7

grant “judgment against [Jordan] and in favor of [Bull’s Eye] on [Bull’s Eye’s] 

Third-Party Complaint,” which, according to Bull’s Eye, then “entitl[ed] [Bull’s 

Eye] to dismissal of all of [Tyler’s] claims against [Bull’s Eye] pursuant to the 

Pierringer Release entered into by [Tyler].” 

¶13 Later, the circuit court: 

 Dismissed all claims against Jordan, including Bull’s Eye’s thirdparty complaint against Jordan, based on the Pierringer release, and 

did not grant Bull’s Eye’s request to dismiss Tyler’s claims against it 

based on operation of the Pierringer release. 

 Found that Jordan engaged in the intentional spoliation of the gun 

evidence; as a sanction for that spoliation, the circuit court granted 

Bull’s Eye’s request that, at trial, the jury be read the spoliation 

inference instruction, and denied all other requests for sanctions.10 

¶14 Bull’s Eye appealed the orders of the circuit court, which are final as 

to Jordan, and named Jordan as the sole respondent in this appeal. We granted 

Tyler’s request to participate in this appeal. See WIS. STAT. RULE 809.13 (2019-

20)11 (providing the court of appeals may permit intervention in an appeal based on 

the criteria for intervention in the circuit court); Helgeland v. Wisconsin Muns., 

2008 WI 9, ¶120, 307 Wis. 2d 1, 745 N.W.2d 1 (stating permissive intervention is 

 

10

 The circuit court also found that Jordan failed to preserve material cell phone evidence, 

but that his failure to do so was negligent and not intentional; the circuit court sanctioned Jordan 

for those acts by ordering Jordan to pay Bull’s Eye’s motion costs. In this appeal, Bull’s Eye 

focuses its arguments exclusively on the sanction imposed by the circuit court for Jordan’s 

spoliation of the AR-15 evidence. We follow Bull’s Eye’s lead and do not address whether the 

circuit court’s sanction for spoliation of the cell phone evidence was in error. 

11

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted. 
No. 2020AP978

8

appropriate “when the movant’s claim or defense and the main action have a 

question of law or fact in common”). 

¶15 We mention other material facts in the following discussion.

DISCUSSION

¶16 Bull’s Eye argues that the circuit court erred because it did not dismiss 

Tyler’s claims against Bull’s Eye as a sanction for Jordan’s intentional spoliation of 

the gun evidence. Bull’s Eye also argues that, based on the operation of the 

Pierringer release entered into by Tyler and Jordan, the intentional spoliation 

conduct of Jordan is imputed to Tyler and, as a result, Tyler’s claim against Bull’s 

Eye must be dismissed based on principles of indemnification. We address each 

argument in turn. 

I. The Spoliation Sanction Was Proper.

¶17 Bull’s Eye contends that the circuit court erred in its selection of the 

sanction for Jordan’s spoliation of the AR-15 evidence. We begin our analysis by 

setting forth principles that govern the spoliation of evidence and our standard of 

review. 

A. Governing Principles and Standard of Review.

¶18 Every potential litigant and party to an action has a duty to preserve 

evidence that is essential to a claim that will likely be litigated. American Fam. 

Mut. Ins. Co. v. Golke, 2009 WI 81, ¶21, 319 Wis. 2d 397, 768 N.W.2d 729; Sentry 

Ins. v. Royal Ins. Co. of Am., 196 Wis. 2d 907, 918, 539 N.W.2d 911 (Ct. App. 

1995). If a potential litigant or party destroys, alters, or loses evidence in a manner 
No. 2020AP978

9

that constitutes spoliation, the circuit court may impose sanctions for the spoliation 

of that evidence. See Golke, 319 Wis. 2d 397, ¶21. 

¶19 But, “[n]ot all destruction, alteration, or loss of evidence qualifies as 

spoliation” or requires the imposition of a sanction. See Insurance Co. of N. Am. 

v. Cease Elec. Inc., 2004 WI App 15, ¶15, 269 Wis. 2d 286, 674 N.W.2d 886. In 

Milwaukee Constructors II v. Milwaukee Metropolitan Sewerage District, 177 

Wis. 2d 523, 502 N.W.2d 881 (Ct. App. 1993), this court adopted a multi-step 

analytical process for evaluating allegations of evidence destruction, alteration, or 

loss to determine whether spoliation has occurred and if a sanction should be 

imposed. See id. at 532 (citing and adopting the analytical framework set forth in 

Struthers Patent Corp. v. Nestle Co., 558 F. Supp. 747 (D.N.J. 1981)). First, the 

court identifies, with as much specificity as possible, the evidence that is alleged to 

have been destroyed, altered, or lost. Id.; Garfoot v. Fireman’s Fund Ins. Co., 228 

Wis. 2d 707, 718, 599 N.W.2d 411 (Ct. App. 1999). After the destroyed, altered, 

or lost evidence has been identified, the court makes a factual inquiry into the 

following three factors: (1) the relationship of the destroyed, altered, or lost 

evidence to the issues in the present action; (2) the extent to which the destroyed, 

altered, or lost evidence can now be obtained from other sources; and (3) whether 

the party responsible for the evidence destruction, alteration, or loss knew or should 

have known at the time he or she caused the destruction, alteration, or loss of 

evidence that litigation against the opposing parties was a distinct possibility. 

Milwaukee Constructors II, 177 Wis. 2d at 532; Garfoot, 228 Wis. 2d at 718. 

Finally, the court must decide whether, in light of the circumstances disclosed by 

the court’s factual inquiry into the three previously identified factors, sanctions 

should be imposed upon the party responsible for the evidence destruction, 

alteration, or loss and, if so, what the sanction should be. Milwaukee Constructors 
No. 2020AP978

10

II, 177 Wis. 2d at 532; Garfoot, 228 Wis. 2d at 718-19. Here, the parties’ arguments 

focus on the final step of this analytical framework – the circuit court’s imposition 

of the sanction for spoliation of the gun evidence by Jordan, and we next discuss the 

standards for the imposition of sanctions for spoliation of evidence.

¶20 Sanctions for spoliation serve two main purposes: “(1) to uphold the 

judicial system’s truth-seeking function[;] and (2) to deter parties from destroying 

evidence.” Cease Elec. Inc., 269 Wis. 2d 286, ¶16. A circuit court has “a broad 

canvas upon which to paint in determining what sanctions are necessary” in a 

spoliation case. Milwaukee Constructors II, 177 Wis. 2d at 538. Wisconsin courts 

have recognized the following potential remedies for evidence spoliation: 

(1) discovery sanctions; (2) monetary sanctions; (3) exclusion of evidence; 

(4) reading the spoliation inference instruction to the jury; and (5) dismissal of one 

or more claims. See Golke, 319 Wis. 2d 397, ¶42; Sentry Ins., 196 Wis. 2d at 918-

19; Estate of Neumann v. Neumann, 2001 WI App 61, ¶80, 242 Wis. 2d 205, 626 

N.W.2d 821; White v. Rasner, No. 2014AP822, unpublished slip op., ¶¶41, 45, 47 

(WI App Apr. 2, 2015). 

¶21 Pertinent to this appeal are two of these recognized sanctions: the 

spoliation inference instruction and dismissal. When imposing either of those 

sanctions, a circuit court is guided by the following principles. The spoliation 

inference instruction is not appropriate when evidence is negligently destroyed, but 

may be appropriate when the destruction of evidence is intentional. See Jagmin v. 

Simonds Abrasive Co., 61 Wis. 2d 60, 80-81, 211 N.W.2d 810 (1973). Also, a court 

should only rarely impose dismissal as a sanction. Golke, 319 Wis. 2d 397, ¶42; 

Garfoot, 228 Wis. 2d at 719. Only when the spoliation conduct is “egregious” is 

dismissal an appropriate sanction. Golke, 319 Wis. 2d 397, ¶42. Egregious conduct 

involves more than negligence; it consists of “a conscious attempt to affect the 
No. 2020AP978

11

outcome of the litigation or a flagrant, knowing disregard of the judicial process.” 

Id. (quoting Milwaukee Constructors II, 177 Wis. 2d at 533). 

¶22 “A [circuit] court’s decision whether to impose sanctions for the ...

spoliation of evidence, and what sanction to impose, is committed to the [circuit]

court’s discretion.” Garfoot, 228 Wis. 2d at 717 (footnote omitted); see Golke, 319 

Wis. 2d 397, ¶18. This court will affirm the circuit court’s decision on spoliation 

sanctions if the circuit court “has examined the relevant facts, applied a proper 

standard of law, and, utilizing a demonstratively rational process, reached a 

conclusion that a reasonable judge could reach.” Garfoot, 228 Wis. 2d at 717.

B. Additional Pertinent Facts.

¶23 We now set forth additional facts pertinent to our analysis, as found 

by the circuit court, concerning Jordan’s spoliation of the gun evidence. These facts 

are not challenged on appeal. See WIS. STAT. § 805.17(2) (findings of fact will be 

affirmed unless clearly erroneous). We then set forth the circuit court’s reasoning 

for imposing the spoliation inference instruction as the sanction for Jordan’s 

spoliation. 

1. Spoliation of the Gun Evidence.

¶24 The AR-15 was owned by Jordan both before and after the November 

2017 shooting accident. The day before the accident, Jordan gave Tyler the gun 

and, according to the circuit court, Jordan knew at that time that “there were some 

issues with the gun without telling Tyler of [those] issues.” 

¶25 Immediately following the shooting accident, which Jordan was fully 

aware of, law enforcement took control of the gun. Approximately one week after 

the shooting accident, Tyler sent a text message to Jordan stating: “If you get the 
No. 2020AP978

12

gun back dont [sic] use it or clean it or anything, just put it in your cabinet, cause 

[sic] if we go after bullseye [sic] for it that will void everything.” The circuit court 

“read[] this message as Tyler ... putting Jordan on notice that litigation [was] a 

distinct possibility.” After law enforcement returned the AR-15 to Jordan in late 

January 2018, Tyler told Jordan that he wanted to talk to a lawyer and that Jordan 

should not do anything with the gun. After Tyler retained an attorney, Tyler told 

Jordan that Tyler’s attorney wanted to have the gun inspected. 

¶26 Despite knowing that litigation was possible, Jordan manipulated the 

AR-15 to show his wife “what happened.” Then, in February 2018, Jordan took the 

AR-15 to Bull’s Eye. The Bull’s Eye employee who inspected the AR-15 made 

material changes to the gun with Jordan’s permission, including the installation of 

a new retention plate. Jordan was the only individual to request that Bull’s Eye 

manipulate and modify the gun, and there is no evidence that Bull’s Eye or any 

employee of Bull’s Eye knew, or should have known, about potential litigation as 

of February 2018. 

¶27 After Bull’s Eye installed the new retention plate in the AR-15, Jordan 

disassembled the gun by separating the two halves of the gun. Jordan then gave the 

lower half of the gun to a representative of Tyler’s attorney. Since approximately 

that time, a retention plate has been missing. 

2. The Circuit Court’s Reasoning.

¶28 In its decision to impose the spoliation inference instruction as a 

sanction, the circuit court gave the following reasoning concerning its findings that 

Jordan’s spoliation of evidence was intentional and about the importance of the 

spoliated evidence: 
No. 2020AP978

13

[Tyler’s claims] center[] around the condition of the gun and 

it[s] components at the time of the [shooting accident], 

including the presence and placement of pins and the 

retention plate. The opportunity to appropriately evaluate 

the gun and its components [in] their condition at or near the 

time of incident is essential and necessary to allow the 

parties to formulate their defenses or claims.... 

....

.... The court finds Jordan Mueller took deliberate 

acts in manipulating a gun that he knew would very likely be 

subject to litigation.... Each manipulation of the gun by 

Jordan resulted in evidence that grew farther away in terms 

of the gun’s condition at the time of the incident. Such 

manipulation puts adverse parties at a disadvantage and left 

other parties with no effective means to gather evidence 

about the gun and its condition at the time of the incident. 

Changing the condition of the gun and removing 

components of the gun, including a retention plate that still 

remains missing today, which are integral to the gun[’]s 

functioning and are the primary focus on this case, deprived 

the parties the opportunity to adequately defend the case. 

The court finds Jordan Mueller, by clear and convincing 

evidence intentionally and deliberately destroyed evidence 

that was essential to the case, evidence that was not available 

through any other sources and evidence that was key to this 

case. 

¶29 Based on Jordan’s intentional spoliation of the AR-15 evidence, the 

circuit court granted Bull’s Eye’s request for a spoliation sanction. More 

particularly, the court granted one of the possible sanctions Bull’s Eye requested in 

its motions, namely, that the jury be given the spoliation inference instruction. The 

circuit court denied Bull’s Eye’s request for dismissal of Tyler’s claims against 

Bull’s Eye. 

C. Analysis.

¶30 We now consider the parties’ arguments that address whether the 

spoliation sanction imposed by the circuit court for Jordan’s spoliation of the AR15 evidence constituted an erroneous exercise of discretion. As noted, Bull’s Eye 
No. 2020AP978

14

argues that the circuit court erroneously exercised its discretion in not dismissing 

Tyler’s claim against Bull’s Eye as a sanction for Jordan’s spoliation of the AR-15 

evidence. Based on Jordan’s ultimate dismissal from the lawsuit based on the 

Pierringer release, Bull’s Eye argues that the only appropriate sanction is to dismiss 

Tyler’s claim against Bull’s Eye. 

1. No Egregious Conduct.

¶31 As mentioned, dismissal as a sanction for spoliation of evidence can 

be imposed only when the spoliator’s conduct amounted to “egregious conduct.” 

See Golke, 319 Wis. 2d 397, ¶42. In its appellate reply brief, Bull’s Eye asserts for 

the first time that “[t]he argument can be made that the lower court made ... an 

implicit finding of egregious conduct by Jordan here.”12 

¶32 The circuit court’s decision does not support Bull’s Eye’s assertion 

that the circuit court found (implicitly or otherwise) that Jordan’s conduct was 

egregious. The circuit court correctly noted in its decision that dismissal as a 

sanction for spoliation requires a showing of egregious conduct, but that the less 

severe sanction of imposing the spoliation inference instruction may be imposed 

when the spoliator intentionally destroyed material evidence. The circuit court 

made a specific finding that Jordan acted intentionally, the court made no finding

that Jordan’s conduct was egregious, and the court did not identify any facts 

 

12

 We could reject this argument based solely on the fact that Bull’s Eye raises it for the 

first time in its reply brief, and Tyler and Jordan did not have the opportunity to respond. See 

Richman v. Security Savs. & Loan Ass’n, 57 Wis. 2d 358, 361, 204 N.W.2d 511 (1973) (declining 

to address arguments raised for the first time in a reply brief). Further, Bull’s Eye fails to present 

this court with a developed argument explaining why the circuit court’s ruling on Bull’s Eye’s 

motion for sanctions should be construed as including a finding that Jordan’s conduct was 

egregious. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating 

this court need not address arguments that are insufficiently developed). Nonetheless, we consider 

this argument from Bull’s Eye as best we understand it and reject it for other reasons. 
No. 2020AP978

15

suggesting that Jordan’s spoliation was egregious. See Milwaukee Constructors II, 

177 Wis. 2d at 533 (noting a finding of egregiousness requires a “conscious attempt 

to affect the outcome of the litigation or a flagrant, knowing disregard of the judicial 

process”). The dearth of specific findings by the circuit court indicating that 

Jordan’s conduct was egregious, along with the imposition of a sanction that the 

circuit court recognized as appropriate when the spoliator has acted intentionally 

but not egregiously, establish that the circuit court did not implicitly find that 

Jordan’s conduct was egregious. 

¶33 Bull’s Eye does not dispute that, absent a finding that Jordan’s 

conduct was egregious, dismissal of Tyler’s claim against Bull’s Eye as a sanction 

for Jordan’s spoliation would constitute error. See Schlieper v. DNR, 188 Wis. 2d 

318, 322, 525 N.W.2d 99 (Ct. App. 1994) (stating a proposition asserted by a

respondent on appeal and not disputed by the appellant’s reply can be taken as 

admitted). Thus, without a finding of egregious conduct by Jordan, Bull’s Eye’s 

request for dismissal of Tyler’s claim as a sanction necessarily fails.

2. No Erroneous Exercise of Discretion. 

¶34 Bull’s Eye argues that the circuit court’s decision to give the 

spoliation inference instruction based on Jordan’s spoliation of the gun evidence is 

an erroneous exercise of discretion because that sanction: (1) fails to adequately 

restore Bull’s Eye “to the position [Bull’s Eye] would have been in but for Jordan’s 

spoliation”; and (2) in light of the Pierringer release, that sanction does not penalize 

Jordan for his spoliation because Jordan is no longer a party to this lawsuit. 

¶35 Bull’s Eye does not dispute that, as noted above, this court has stated 

that “[t]he primary purpose[s] behind the doctrine of spoliation [are] twofold:” “to 

uphold the judicial system’s truth-seeking function” and “to deter parties from 
No. 2020AP978

16

destroying evidence.” Cease Elec., Inc., 269 Wis. 2d 286, ¶16. Rather, Bull’s Eye 

argues that the circuit court was obligated to conclude that the spoliation sanction 

imposed in this case must also: (1) restore Bull’s Eye to the position it would have 

been in but for the spoliation; and (2) punish the spoliator, Jordan. And, according 

to Bull’s Eye, if the sanction did not have both of those effects, the imposed sanction 

was an erroneous exercise of the circuit court’s discretion. In support of those 

contentions, Bull’s Eye relies on the results of our opinions in Sentry Insurance

and Cody v. Target Corp., No. 2011AP2831, ¶2, unpublished slip op. (WI App 

June 27, 2013). We reject Bull’s Eye’s argument for several reasons that we now 

discuss. 

¶36 First, Bull’s Eye’s argument is based upon an analytical leap that is 

not supported by our opinions in Sentry Insurance and Cody. In Sentry Insurance, 

homeowners brought a product liability action against the manufacturer of their 

refrigerator alleging that the refrigerator was the cause of a fire that resulted in 

extensive damages. Sentry Ins., 196 Wis. 2d at 911-12. We affirmed the circuit 

court’s exclusion of evidence relating to the condition of the refrigerator as a

sanction for the failure of Sentry (the insurer of the homeowners) to properly 

preserve the refrigerator and Sentry’s intentional removal of parts from the 

refrigerator, all of which prevented the defendant from conducting tests essential to 

its defense. Id. at 919. 

¶37 In Cody, plaintiffs brought suit to recover for injuries they sustained 

from exposure to unidentified chemicals found in a box for an inflatable mattress 

plaintiffs purchased from Target. Cody, No. 2011AP2831, ¶2. The circuit court 

found that Target intentionally disposed of the box and its contents and, as a sanction 

for Target’s spoliation, ordered that the issue of causation was established against 
No. 2020AP978

17

Target. Id., ¶¶5-6. We affirmed the circuit court’s sanction against Target. Id., 

¶¶21, 23, 25. 

¶38 In both Sentry Insurance and Cody, we were tasked with determining 

whether the particular discovery sanction imposed for the spoliation of evidence 

was a proper exercise of the circuit court’s discretion under the facts of those 

particular cases. The spoliation sanctions in each of those cases arguably had a 

remedial effect and in some fashion punished the spoliator. But, nothing in those 

opinions or other Wisconsin case law supports Bull’s Eye’s contention that, 

whenever sanctions are imposed for spoliation of evidence, the sanction must

always restore the party injured by the spoliation to his or her purported prespoliation position regarding that evidence and punish the spoliator.

¶39 Second, Bull’s Eye asserts that the sanction imposed by the circuit 

court will not have any remedial impact in these circumstances due to the fact that 

Bull’s Eye must still put forth a defense at trial against Tyler’s claim, despite 

Jordan’s spoliation of “key” evidence that is not available through any other source. 

Although the spoliation inference instruction permits the jury to draw an inference 

against Jordan concerning the spoliated gun evidence, the instruction does not 

mandate that the jury do so. According to Bull’s Eye, it then follows that the 

spoliation inference instruction is an inadequate means to “even the playing field” 

and put Bull’s Eye in the position it believes it would have been absent Jordan’s 

spoliation of the gun evidence. Bull’s Eye argues, in effect, that the spoliation 

inference instruction fails as a remedy because it does not serve as a complete 

substitute, and a definitive remedy, for the spoliated gun evidence. 

¶40 Bull’s Eye’s argument is undeveloped to the extent that it does not 

point to any authorities to support its position that a spoliation sanction must achieve 
No. 2020AP978

18

a definitive result for Bull’s Eye that dismisses all claims against it. See Kruczek v. 

DWD, 2005 WI App 12, ¶32, 278 Wis. 2d 563, 692 N.W.2d 286 (declining to 

consider arguments unsupported by reference to legal authority). Indeed, applicable 

authorities establish that a permissible inference instruction that unavailable 

evidence is adverse to the spoliator is a proper sanction for spoliation when, as here, 

the spoliation was intentional but not egregious. See, e.g., Golke, 319 Wis. 2d 397, 

¶42; Jagmin, 61 Wis. 2d at 80-81. In this situation, Bull’s Eye benefits from the 

spoliation inference instruction in that, at trial, the jury may draw an inference 

against Jordan from the gun spoliation evidence. That will be to the benefit of Bull’s 

Eye because, pursuant to the Pierringer release, Jordan’s causal negligence will be 

assumed by Tyler. We thus reject Bull’s Eye’s assertions that the sanction of the 

spoliation inference instruction is an erroneous exercise of discretion by the circuit 

court because it does not have a remedial effect and does not grant to Bull’s Eye a 

definitive remedy of dismissal of all remaining claims against it. 

¶41 Third, Bull’s Eye argues that, in light of the fact that Jordan is no 

longer a party to this lawsuit, the instruction does not have a punitive effect because 

it fails to punish Jordan directly for his spoliation of the gun evidence. In Bull’s 

Eye’s view, the only sanction that will sufficiently punish Jordan is the dismissal of 

Tyler’s claim against Bull’s Eye because “Jordan will suffer a very personal 

punishment few spoliators suffer: He will know he both opened the door for 

[Tyler’s] injury to occur and then closed the door on [Tyler’s] remedy.” 

¶42 Bull’s Eye’s argument attempts to turn upside down Wisconsin law 

on sanctions for spoliation of evidence. Bull’s Eye contends that Tyler, as an 

innocent party regarding Jordan’s spoliation of evidence, should, in the exercise of 

the circuit court’s discretion, have his remaining claims in this lawsuit dismissed. 

A party such as Tyler cannot be sanctioned with dismissal of the parties’ claims 
No. 2020AP978

19

based on the spoliation of evidence unless that party spoliates evidence in an 

egregious manner. See Golke, 319 Wis. 2d 397, ¶42; Milwaukee Constructors II, 

177 Wis. 2d at 532-33. Here, there is no finding of the circuit court, and no 

evidence, that any action by Tyler either spoliated evidence or was egregious. As a 

result, there is no basis to dismiss Tyler’s claims against Bull’s Eye as a sanction 

for Jordan’s spoliation of evidence. 

¶43 In sum, we reject Bull’s Eye’s argument that the circuit court 

erroneously exercised its discretion in imposing the spoliation inference instruction 

as a sanction for Jordan’s spoliation of the gun evidence. We conclude that the 

circuit court’s sanction was reasonable given the court’s examination of the facts 

and application of the proper standards of law. See Garfoot, 228 Wis. 2d at 717. 

II. No Dismissal Based on Indemnification.

¶44 Bull’s Eye next argues that Tyler’s claim against it must be dismissed 

because Bull’s Eye is entitled to indemnification from Jordan as a result of Jordan’s 

intentional spoliation of evidence and, by virtue of the Pierringer release entered 

into by Tyler and Jordan, Jordan’s indemnity obligation to Bull’s Eye is imputed to 

Tyler. According to Bull’s Eye, that imputation requires that Tyler’s claim against 

Bull’s Eye be dismissed. We reject Bull’s Eye’s argument because Jordan does not 

have an indemnity obligation to Bull’s Eye based on his intentional spoliation of 

evidence. 

¶45 We begin our analysis by setting forth our standard of review and 

identifying principles governing indemnification. 
No. 2020AP978

20

A. Standard of Review and Principles Governing Indemnification.

¶46 Bull’s Eye characterizes the specific order of the circuit court at issue 

in this section of this opinion as an order regarding summary judgment. Tyler 

disagrees because no motion for summary judgment was filed by any party after the 

Pierringer release was executed. At any rate, the parties agree that, regardless of

whether the order was entered on summary judgment or otherwise, the ultimate 

issue before this court – whether the circuit court erred by not dismissing Tyler’s 

claim against Bull’s Eye based on indemnification principles and operation of the 

Pierringer release – is an issue of law that this court reviews de novo. We agree 

with the parties that our review of this order of the circuit court is de novo, regardless 

of the procedure used in the circuit court. See, e.g., Fleming, 131 Wis. 2d at 132 

(determining as a matter of law whether dismissal of the plaintiff’s claims against a 

non-settling defendant following execution of a Pierringer release is proper); see 

also Paskiet v. Quality State Oil Co., 164 Wis. 2d 800, 805, 476 N.W.2d 871 (1991)

(reviewing the dismissal of an action de novo); Smith v. Dodgeville Mut. Ins. Co., 

212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997) (reviewing summary 

judgment de novo).

¶47 Principles of indemnification are material to our analysis, and for 

context we now give an overview of germane principles. 

¶48 “There are two doctrines generally applicable to the distribution of the 

loss among persons liable for the same harm – contribution and indemnity.” 

Swanigan, 99 Wis. 2d at 196. Contribution is the distribution of the loss among 

defendants requiring each defendant to pay their “proportionate share of the 

damages on a comparative fault basis.” Id. 
No. 2020AP978

21

¶49 Indemnification can arise either by contract or based on principles of 

equity. Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI 70, ¶34, 342 

Wis. 2d 29, 816 N.W.2d 853. As we discuss shortly, Bull’s Eye’s argument is based 

on equitable indemnification. In contrast to contribution, “[i]ndemnification shifts

the entire loss from one person who has been compelled to pay it to another who on 

the basis of equitable principles should bear the loss.” Swanigan, 99 Wis. 2d at 

196. 

¶50 We next turn to the arguments of the parties. 

B. No Equitable Indemnification.

¶51 Bull’s Eye argues that Tyler’s claim against it must be dismissed for 

the following reasons, both of which must be established for Bull’s Eye to prevail 

on its argument. 

¶52 First, Bull’s Eye contends that it is entitled to equitable 

indemnification from Jordan for any negligence of Bull’s Eye13 that caused injuries 

to Tyler, and that indemnification shifts all liability for Bull’s Eye’s negligent acts 

to Jordan. As the basis for this contention, Bull’s Eye asserts that it has been 

“exposed to liability” by the “wrongful act” of Jordan of intentionally spoliating the 

gun evidence, and, as a result, equitable indemnification is owed to it from Jordan, 

and Bull’s Eye cites to Kjellsen v. Stonecrest, Inc., 47 Wis. 2d 8, 11-12, 176 N.W.2d 

321 (1970) and Fleming, 131 Wis. 2d at 130. Second, Bull’s Eye contends that

Jordan’s indemnification obligation is imputed to Tyler by operation of Tyler’s 

Pierringer release of Jordan. 

 

13

 The parties do not dispute that Tyler’s only claim against Bull’s Eye is based on the 

alleged negligence of Bull’s Eye. 
No. 2020AP978

22

¶53 From those two propositions, Bull’s Eye argues that its own liability 

for any injury to Tyler it caused has been shifted entirely to Tyler, and dismissal of 

Tyler’s claim against Bull’s Eye is required. For the reasons that follow, we reject 

Bull’s Eye’s first proposition that Bull’s Eye is entitled to equitable indemnification 

from Jordan based on Jordan’s intentional spoliation of the gun evidence. 

Accordingly, Bull’s Eye’s argument that Tyler’s claim against Bull’s Eye must be 

dismissed fails.

1. Irreconcilable With Wisconsin Law on Spoliation.

¶54 The initial basis to reject Bull’s Eye’s argument is that it is 

irreconcilable with Wisconsin case law standards regarding the spoliation of 

evidence. As we have already discussed, once a circuit court determines that 

evidence has been spoliated, the court must then decide whether to impose sanctions 

for the spoliation and, if so, what the sanctions should be. Garfoot, 228 Wis. 2d at 

718-19; Milwaukee Constructors II, 177 Wis. 2d at 532. 

¶55 Bull’s Eye’s argument would necessarily require that, whenever a 

circuit court found that a party intentionally spoliated evidence and such spoliation 

has an adverse effect on an allegedly negligent non-spoliator, there could only be 

one form of spoliation relief that the circuit court must grant: indemnification by 

the spoliator for all causal negligence of the non-spoliator adversely affected by the 

spoliation. In other words, according to Bull’s Eye, the court would have to order 

a complete shift of all causal negligence from the non-spoliator to the intentional 

spoliator. Bull’s Eye’s argument runs afoul of Wisconsin law on spoliation of 

evidence for at least two reasons.

¶56 First, Bull’s Eye’s proposal would require dismissal as the sanction 

for all intentional spoliation of evidence. Here, Bull’s Eye seeks the dismissal of 
No. 2020AP978

23

Tyler’s remaining negligence claim against Bull’s Eye. Bull’s Eye’s argument 

would also require a dismissal in other scenarios. As an example, if we accepted 

Bull’s Eye’s argument, a plaintiff who intentionally spoliates evidence would have 

his or her claims against an allegedly negligent non-spoliator adversely affected by 

the spoliation dismissed because the entire causal liability for the non-spoliator’s 

negligence would be shifted to the plaintiff, and that would mandate dismissal of 

the plaintiff’s claims against a non-spoliator. Under this rule, the same would be 

true for third-party claims of an intentional spoliator defendant against an allegedly 

negligent non-spoliator third-party defendant adversely affected by the spoliation; 

the causal negligence of the non-spoliator third-party defendant would be shifted to 

the intentional spoliator and the third-party plaintiff’s claim would be dismissed.

¶57 But, as discussed, only when a circuit court finds that a spoliator’s 

conduct is egregious is dismissal allowed. Golke, 319 Wis. 2d 397, ¶42; Garfoot, 

228 Wis. 2d at 719; Milwaukee Constructors II, 177 Wis. 2d at 533. Bull’s Eye’s

argument is directly contrary to Wisconsin law on spoliation of evidence because it 

would require dismissal based not on egregious conduct, but only intentional 

conduct. In this case, as we have discussed above, there is no finding of egregious 

conduct by Jordan (or Tyler). Therefore, Bull’s Eye’s request for dismissal of 

Tyler’s remaining claim against it based on indemnification fails because it cannot 

be reconciled with established Wisconsin law on spoliation.

¶58 Second, as we have also explained, a circuit court has a “broad canvas 

upon which to paint in determining what sanctions are necessary.” Milwaukee 

Constructors II, 177 Wis. 2d at 538. If we accept Bull’s Eye’s argument, at least 

in some circumstances the circuit court would have no discretion to exercise when 

determining whether relief for intentional spoliation should be granted and, if so, 

the appropriate relief. Instead, in Bull’s Eye’s view, in these circumstances the court 
No. 2020AP978

24

would be required to shift all causal negligence from the non-spoliator party to the 

intentional spoliator and grant the concomitant dismissal. This would be true, 

according to Bull’s Eye’s argument, regardless of the importance (or lack of 

importance) of the spoliated evidence to the case or the relative weakness of the 

adverse effect on the non-spoliator. That result cannot be reconciled with, and is 

directly contrary to, the “broad canvas” on which the circuit court exercises its 

discretion in granting relief appropriate to a given case. The circuit court’s 

discretion cannot be circumscribed in the manner advanced by Bull’s Eye under 

settled spoliation law.

¶59 Bull’s Eye relies on case law to support its position. As we next 

discuss, those cases do not support Bull’s Eye’s argument. We begin by considering 

Fleming, a case central to Bull’s Eye’s argument. 

2. Fleming.

¶60 In Fleming, our supreme court addressed “whether a negligent 

tortfeasor has a right to indemnity or contribution from an intentional joint 

tortfeasor.” Fleming, 131 Wis. 2d at 125. Plaintiff Fleming was injured from the 

blast of a sawed-off shotgun. He brought suit against Seeger, who allegedly fired 

the sawed-off shotgun, and Putzke, who allegedly made the shotgun available to 

Seeger. Id. Before trial, Fleming entered into a Pierringer release with Seeger, and 

Seeger was dismissed from the lawsuit. Id. The jury found that Seeger had 

intentionally shot Fleming and that Putzke was causally negligent in making the 

shotgun available to Seeger. Id. at 126. Putzke appealed the money judgment 

entered against him based on his negligence that caused damages to Fleming. Id. at 

126-27. 
No. 2020AP978

25

¶61 The Fleming court held that “a negligent tortfeasor has a right to 

indemnity from an intentional joint tortfeasor”: 

Were we to allow a negligent tortfeasor only a right to 

contribution from an intentional joint tortfeasor, the 

intentional tortfeasor effectively would receive the benefit of 

contribution from the negligent tortfeasor, in direct conflict 

with the established law in this state. While this approach 

allows a defendant who is causally negligent to escape from 

liability in some circumstances, we believe that shifting the 

full responsibility for the loss to the intentional tortfeasor 

serves the policy of deterring conduct which society 

considers to be substantially more egregious than 

negligence. 

Id. at 130.

¶62 Bull’s Eye contends that Fleming supports its argument that Jordan 

owes it equitable indemnification based on his intentional spoliation of the gun 

evidence. For the reasons we next discuss, we reject Bull’s Eye’s contention 

because it is based on erroneous interpretations of our supreme court’s opinion in 

Fleming and indemnification principles. 

a. Jordan Is Not an Intentional Joint Tortfeasor as Required by Fleming.

¶63 The Fleming court used the term “negligent tortfeasor.” See, e.g, id. 

at 125, 127-30. For purposes of this argument, the parties assume that Bull’s Eye’s 

alleged role in this case is as a causally negligent tortfeasor, and we make this same 

assumption. 

¶64 Fleming requires that, for a negligent tortfeasor to be indemnified in 

these circumstances, the party from whom indemnification is sought must be an 

“intentional joint tortfeasor.” See id. at 125, 127-30; see also Imark Industries, Inc. 

v. Arthur Young & Co., 148 Wis. 2d 605, 619, 436 N.W.2d 311 (1989). Our 

supreme court did not define what the term “intentional joint tortfeasor” means in 
No. 2020AP978

26

this context. However, we can look to dictionary definitions of terms and previous 

case law to establish the ordinary and common meaning of terms. See State v. 

Harvey, 2006 WI App 26, ¶16, 289 Wis. 2d 222, 710 N.W.2d 482. The term 

“tortfeasor” is defined as “[o]ne who commits a tort.” BLACK’S LAW DICTIONARY

1627 (9th ed. 2009). The term “[i]ntentional” is defined as “[d]one with the aim of 

carrying out the act.” BLACK’S LAW DICTIONARY 814 (7th ed. 1999). The phrase 

“joint tortfeasor” means “independent tortfeasors whose concurrent acts jointly 

caused a single injury” and “tortfeasors who acted in concert” to cause an injury. 

Brown v. Hammermill Paper Co., 88 Wis. 2d 224, 232, 276 N.W.2d 709 (1979) 

(citing PROSSER, TORTS 301 (4th ed.)). Based on those definitions, an “intentional

joint tortfeasor” is one who, with the aim of carrying out the act, commits a tort that 

causes an injury either in concert with, or concurrently with, another tortfeasor. 

¶65 For several reasons, Jordan is not an “intentional joint tortfeasor” 

based on his acts of spoliating the gun evidence. Jordan’s intentional spoliation of 

the gun evidence is wholly separate from the acts of any parties that caused Tyler’s 

injuries. 

¶66 First, there is no allegation made in this action that the conduct that 

makes Jordan a joint tortfeasor in connection with the shooting accident was 

“intentional.” Tyler alleged in the amended complaint that Jordan’s negligent 

conduct was a cause of the injuries Tyler sustained in the shooting accident. Tyler

did not claim, and Bull’s Eye does not argue or identify any facts, that Jordan’s 

tortious conduct that allegedly caused Tyler’s injuries was committed with intent. 

Indeed, the third-party complaint of Bull’s Eye against Jordan alleges only negligent 

conduct of Jordan that purportedly caused injury to Tyler. 
No. 2020AP978

27

¶67 Second, Bull’s Eye and Jordan are not joint tortfeasors based on 

Jordan’s intentional spoliation of evidence. To be “joint tortfeasors,” parties must 

jointly cause a “single injury” by acting “concurrent[ly]” or “in concert.” Id. Here, 

in no sense can it be said that Bull’s Eye’s negligence and Jordan’s spoliation of 

evidence both caused the injury Tyler sustained in the shooting accident; Bull’s 

Eye’s negligence may have caused injury to Tyler, and Jordan’s intentional 

spoliation caused evidentiary proof problems. Further, those acts of Bull’s Eye and 

Jordan were not concurrent or in concert because those acts happened at different 

times and were not related in result or activity. No party has even alleged that 

Jordan’s spoliation caused injury to Tyler that may be compensated by damages in 

this lawsuit. Under Fleming, principles of indemnity between joint tortfeasors do 

not apply to an act that does not cause compensable injuries, regardless of whether 

the act is negligent or intentional. See Fleming, 131 Wis. 2d at 125, 130.14 

¶68 Apparently recognizing these impediments to its argument, Bull’s Eye 

asserts “that a negligent wrongdoer has a right to indemnity from an intentional 

wrongdoer.” (Emphasis added.) A “wrongdoer,” according to Bull’s Eye, is 

someone who commits “a wrongful act” that is “not necessarily a tort.” Bull’s Eye 

contends that it is entitled to indemnity from Jordan because the circuit court found 

that Jordan intentionally engaged in a wrongful act, the spoliation of the AR-15

evidence. 

 

14

 Bull’s Eye cites to Boyd v. Travelers Insurance Company, 652 N.E.2d 267 (Ill. 1995). 

In Boyd, the court stated that “consistent with a majority of jurisdictions, [Illinois] has never” 

“recognize[d] ‘spoliation of evidence’ as an independent cause of action.” Id. at 192-93. The court 

held, however, that “an action for negligent spoliation can be stated under existing negligence law.” 

Id. at 193. But, Bull’s Eye does not explain how this conclusory statement in Illinois case law 

could matter to this appeal. See Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App

300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56 (declining to consider conclusory assertions and 

undeveloped arguments). 
No. 2020AP978

28

¶69 Bull’s Eye’s assertion fails in light of the supreme court’s statements 

in Fleming and Imark. The supreme court stated in those opinions that a “negligent 

tort[]feasor” has the right to indemnity from a “joint intentional tortfeasor.” 

Fleming 131 Wis. 2d at 125, 127, 130; Imark, 148 Wis. 2d at 619. Bull’s Eye 

incorrectly substitutes the supreme court’s uses of the word “tortfeasor” for the word 

“wrongdoer” and omits the word “joint” from its assertion. 

¶70 In support of its argument to the contrary, Bull’s Eye points to a single 

paragraph in Fleming. In that paragraph, our supreme court used the terms 

“intentional misconduct” and “intentional wrongdoer” on one occasion each during 

its discussion of whether a negligent tortfeasor has a right to indemnity from an 

intentional joint tortfeasor: 

Since our decision in Ellis [v. Chicago & Northern 

Railway Co., 167 Wis. 392, 167 N.W. 1048 (1918)], we have 

continued to uphold the rule that those guilty of intentional 

misconduct are not entitled to contribution. See, e.g., Jacobs 

v. General Accident Fire & Life Assurance Corp., 14 

Wis. 2d 1, 5, 109 N.W.2d 462 (1961); Zurn v. Whatley, 213 

Wis. 365, 372, 251 N.W. 435 (1933). This line of cases is 

consistent with our decision in Schulze v. Kleeber, 10 

Wis. 2d 540, 545, 103 N.W.2d 560 (1960), wherein we held 

that an intentional wrongdoer should not benefit from the 

contributory negligence of a plaintiff.

Fleming, 131 Wis. 2d at 129.

¶71 As we understand it, Bull’s Eye means to argue that our supreme

court’s use of the terms “intentional misconduct” and “intentional wrongdoer” at 

one point in Fleming indicates that those terms are interchangeable with the term 

“intentional joint tortfeasor,” and that a negligent tortfeasor is entitled to indemnity 

based upon any intentional wrongful act by another defendant, including acts that 

do not cause compensable injury to the plaintiff. This argument is without support. 
No. 2020AP978

29

¶72 In Jacobs, Zurn, and Schulze (three opinions mentioned by the 

supreme court in the quote, above, from Fleming), our supreme court stated that a 

defendant whose intentional tortious act is alleged to have caused the plaintiff injury 

is not entitled to contribution from a joint tortfeasor or plaintiff whose negligent 

conduct contributed to the plaintiff’s injury. The intentional conduct in each of 

those cases was the tortious conduct giving rise to the plaintiff’s claim for damages 

for personal injuries. See Jacobs, 14 Wis. 2d at 2, 5; Zurn, 213 Wis. at 372; 

Schulze, 10 Wis. 2d at 541-42, 545. Nothing in Jacobs, Zurn, or Schulze suggests 

that the intentional wrongful conduct was not the tortious conduct underlying the 

plaintiffs’ claims for damages in those cases.

¶73 For those reasons, Fleming does not support Bull’s Eye’s argument. 

3. Remaining Opinions Relied on by Bull’s Eye.

¶74 Bull’s Eye relies on three other opinions. However, as the following 

summaries demonstrate, none of the opinions support Bull’s Eye’s argument that it 

is entitled to indemnification from Jordan based on Jordan’s intentional spoliation 

of the gun evidence that is wholly separate from any acts that caused personal injury 

to Tyler. This is because each concerns equitable indemnification between parties 

who had, or it was alleged that each had, caused the same compensable injury to the 

plaintiff in that action by their conduct. 

¶75 In Kriefall, the defendants were sued by plaintiffs because of the sale 

of contaminated meat. Kriefall, 342 Wis. 2d 29, ¶¶3-6. Prior to trial, defendant 

Sizzler paid $1.5 million to the plaintiffs toward settlement of plaintiffs’ claims. See 

id., ¶¶2, 39. The trial concerned only the apportionment of liability between the codefendants. Id., ¶9. The jury determined that Sizzler was not liable for the 

plaintiffs’ injuries, but that defendant Excel was eighty percent liable for those 
No. 2020AP978

30

injuries. Id., ¶¶9, 39. Sizzler requested equitable indemnification from Excel 

because Excel had not paid toward the settlement with the plaintiffs. See id., ¶¶9, 

39. Our supreme court held that the circumstance which gave rise to Sizzler’s claim 

of equitable indemnification from Excel was Sizzler’s payment toward the 

settlement. Id., ¶43. The court concluded that Sizzler “did not join” in that liability

because the jury found that it was not liable. Id. (citing Kjellsen v. Stonecrest, Inc., 

47 Wis. 2d 8, 11-12, 176 N.W.2d 321 (1970)). Our supreme court determined that 

equitable indemnification was appropriate in this circumstance for the following 

reasons: 

Moreover, the jury’s allocation of fault demonstrates 

that the considerations necessary to invoke equitable 

indemnification are present. As between Excel and Sizzler, 

who was found not liable, Sizzler’s payment, if 

unreimbursed would benefit the tortfeasor, Excel. Sizzler 

made a payment in contemplation of potential liability for 

injuries, for which Sizzler was later determined to have no 

responsibility.

Id., ¶45 (internal citation omitted). 

¶76 In Kjellsen, the plaintiffs sued Stonecrest, the builder of plaintiffs’ 

home, for allegedly concealing cracks in the foundation of the home. Kjellsen, 47 

Wis. 2d at 9. Stonecrest brought a third-party complaint for indemnity against the 

real estate agent who was involved with the transaction, alleging that the agent 

should have told the plaintiffs about the cracks in the foundation. Id. The supreme 

court agreed with the circuit court that there was no right to indemnification to 

Stonecrest from the real estate agent. Id. at 10. 

¶77 In Teacher Retirement System of Texas v. Badger XVI Limited 

Partnership, 205 Wis. 2d 532, 556 N.W.2d 415 (Ct. App. 1996), the dispute was 

between the owner of an office complex and the general contractor and 
No. 2020AP978

31

subcontractors, as well as the project architect, concerning purported improper 

construction and design of the complex. Id. at 537. Indemnification between the 

defendants was one of the issues in that opinion. Id. at 546. Each of the claims for 

indemnification concerned which defendant was liable to the plaintiff, or each other, 

based on damages incurred by the plaintiff caused by defendants. Id. at 546-49.

¶78 In sum, Bull’s Eye fails to establish that Jordan, a tortfeasor whose 

alleged negligent tortious conduct contributed to Tyler’s injuries and who also 

engaged in intentional spoliation of evidence, must indemnify an allegedly negligent

joint tortfeasor, Bull’s Eye. Without an indemnity obligation on Jordan’s part, there 

can be no indemnity obligation imputed to Tyler by operation of the Pierringer 

release of Jordan. As a result, there is no basis to conclude that dismissal of Tyler’s 

claims against Bull’s Eye is required. Accordingly, we need not address whether 

Tyler’s Pierringer release of Jordan imputes to Tyler liability for intentional 

wrongdoing by Jordan. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 

(Ct. App. 1983) (stating that if a decision on one point disposes of the appeal, the 

court will not decide other issues raised).

III. Dismissal of Jordan and an Inadequate Remedy.

¶79 Bull’s Eye argues that, if Tyler’s claims against it are not dismissed, 

then Jordan must remain as a party to this lawsuit. For all practical purposes, Bull’s 

Eye’s contention is that a circuit court finding that a party intentionally spoliated 

evidence automatically voids a Pierringer release entered into by that party such 

that the spoliating party must remain in the lawsuit. This argument fails for at least 

two reasons. First, Jordan asserts, and Bull’s Eye does not dispute in its reply brief, 

that Bull’s Eye did not at any time object in the circuit court to the dismissal of 

Jordan from this case. See Segall v. Hurwitz, 114 Wis. 2d 471, 489, 339 N.W.2d 
No. 2020AP978

32

333 (Ct. App. 1983) (declining to address issues not raised before the circuit court). 

Our review of the record supports Jordan’s assertion that Bull’s Eye never objected 

to Jordan’s dismissal from this action based on operation of the Pierringer release. 

Second, Bull’s Eye’s argument cannot be reconciled with controlling authorities. 

Our supreme court stated in Pierringer that so long as the causal, comparative, and 

contributory negligence of all the pertinent parties can be determined by the jury in 

a subsequent trial, there is no requirement that a settling defendant remain a party 

to the lawsuit. See Pierringer, 21 Wis. 2d at 192-93; see also VanCleve v. City of 

Marinette, 2003 WI 2, ¶40, 258 Wis. 2d 80, 655 N.W.2d 113. Similarly, in 

Johnson v. Heintz, 73 Wis. 2d 286, 243 N.W.2d 815 (1976), our supreme court 

stated that “no objection could be raised to the fact that [a] plaintiff and a joint 

tortfeasor defendant were exercising the option approved by Pierringer. The 

settlement of the claim against a defendant under those circumstances requires that 

he [or she] be dismissed from the action.” Id. at 297 (bold and italics added).

¶80 Finally, Bull’s Eye argues that its requests for relief advanced in this 

appeal must be granted based on equitable principles because otherwise “the law 

does not provide [Bull’s Eye] with a full and adequate legal remedy.” We could 

deny this argument based solely on the fact that it was first made in Bull’s Eye’s 

appellate reply brief, and Tyler and Jordan have not had an opportunity to rebut this 

argument. See Richman v. Security Savs. & Loan Ass’n, 57 Wis. 2d 358, 361, 204 

N.W.2d 511, 513 (1973) (declining to address issues or arguments raised for the 

first time in a reply brief). In any case, that Bull’s Eye does not receive the result it 

wants in this appeal does not lead to the conclusion that Bull’s Eye must receive 

that relief through principles of equity. Granting Bull’s Eye’s unsupported request 

for relief would, in effect, void decades of case law and standards regarding 
No. 2020AP978

33

spoliation of evidence and Pierringer releases. Bull’s Eye gives us no reason to 

upend Wisconsin law in such a fashion. 

CONCLUSION

¶81 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.