STATE OF WISCONSIN

CIRCUIT COURT
CIVIL DIVISION

MILWAUKEE
COUNTY

BRYAN NORBERG and

GRAHAM KUNISCH,

Plaintiffs,
Case No. 10CV020655
vs.

BADGER GUNS, INC.; BADGER OUTDOORS,

INC.; ADAM J. ALLAN; WALTER J. ALLAN;
MILTON E. BEATOVIC; WEST BEND
MUTUAL INSURANCE COMPANY; JULIUS
C. BURTON; and JACOB D. COLLINS

Defendants.

DEFENDANTS STATEMENT OF UNDISPUTED MATERIAL FACTS AND

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS
I.

INTRODUCTION ...................................................................................................................1

II.

STATEMENT OF UNDISPUTED MATERIAL FACTS ....................................................1

III. MEMORANDUM OF LAW .................................................................................................3

A. The Protection of Lawful Commerce in Arms Act
Generally Prohibits Actions Against Firearm Sellers for
Damages Arising From the Criminal Misuse of Firearms by
Third Parties ........................................................................................................................... 3
B. ORDINARY NEGLIGENCE ................................................................................................ 4
1. Plaintiffs Ordinary Negligence Claim is a Qualified Civil
Liability Action under the PLCAA and Is Subject to
Dismissal ................................................................................................................................ 4
2. Badger Outdoors Did Not Sell the Firearm Used to Injure
Plaintiffs and Cannot Be Liable for the Allegedly Negligent
Sale......................................................................................................................................... 8
3. Defendants Walter J. Allan, Adam J. Allan and Milton E.
Beatovic Did Not Sell the Firearm Used to Injure Plaintiffs
and Cannot Be Personally Liable for the Allegedly
Negligent Sale ........................................................................................................................10
4. Defendants Walter J. Allan, Adam J. Allan and Milton E.
Beatovic Cannot Be Found Negligent in Their Capacities as
Shareholder Owners of Badger Guns and Badger Outdoors .................................................10
C. NEGLIGENT ENTRUSTMENT ..........................................................................................11
1. Plaintiffs Negligent Entrustment Claim Does Not Meet the
Definition of Negligent Entrustment under the PLCAA ....................................................11
2. Badger Outdoors Did Not Sell the Firearm to Collins and
Cannot Be Liable for Negligently Entrusting the Firearm.....................................................16
3. Defendants Adam J. Allan, Walter J. Allan, and Milton E.
Beatovic Did Not Sell the Firearm to Collins and Cannot
Be Personally Liable for Negligently Entrusting the
Firearm ...................................................................................................................................17

ii

4. Defendants Adam J. Allan, Walter J. Allan and Milton E.

Beatovic Cannot Be Guilty of Negligent Entrustment in
Their Capacities as Shareholder Owners of Badger Guns
and Badger Outdoors .............................................................................................................17
D. CIVIL CONSPIRACY...........................................................................................................17
1. Negligent Conduct Cannot Be the Basis for a Civil
Conspiracy .............................................................................................................................18
2. There is No Evidence That Defendants Formed a
Conspiracy to Sell the Firearm to Collins ..............................................................................19
3. Adam J. Allan Could Not Conspire with Badger Guns as a
Matter of Law ........................................................................................................................20
E. AIDING AND ABETTING ...................................................................................................21
1. There Is No Evidence That Defendants Aided and Abetted
Badger Guns Sale of the Firearm to Collins .........................................................................21
2. Adam J. Allan Could Not Aid and Abet Badger Guns as a
Matter of Law ........................................................................................................................22
IV. CONCLUSION ............................................................23

iii

I.

INTRODUCTION

Julius C. Burton (Burton) intentionally shot and injured Plaintiffs during the course of
their duties as police officers with a firearm purchased for him by Jacob D. Collins (Collins).
Plaintiffs seek to hold Badger Guns, Inc. (Badger Guns) and others legally responsible for
Burtons crime under negligence and negligent entrustment theories, claiming that Badger Guns
sale of the firearm to Collins was the proximate cause of their injuries.
Plaintiffs claims present dispositive questions of law for the Courts determination
involving statutory construction and application of statutory immunity.

The facts on which

these questions of law rest are few and undisputed. Application of the law to these undisputed
facts entitles Defendants to judgment as a matter of law.
II.

STATEMENT OF UNDISPUTED MATERIAL FACTS.

1.

Badger Guns, Inc. was a federally-licensed firearms dealer that conducted

business at 2339 South 43rd Street in West Milwaukee, Wisconsin from September 14, 2007 to
December 31, 2011. (Affidavit of Adam J. Allan attached as Exhibit A).
2.

Defendant Adam J. Allan was the sole shareholder and owner of Badger Guns,

Inc. (Affidavit of Adam J. Allan attached as Exhibit A).

3.

Badger Guns, Inc. employee Donald R. Flora sold a Taurus PT140 Pro .40 caliber

pistol to Jacob D. Collins on May 2, 2009. (Affidavit of Adam J. Allan attached as Exhibit A).
4.

Defendant Adam J. Allan was not present at the time of the sale of the firearm to

Jacob D. Collins and he did not assist in the sale or delivery of the firearm. (Affidavit of Adam J.
Allan attached as Exhibit A).
5.

Defendant Walter J. Allan worked as an employee of Badger Guns, Inc. in May

2009, but he did not assist in the sale or delivery of the firearm to Jacob D. Collins. (Affidavit of

Walter J. Allan attached as Exhibit B).

6.

Following completion of the statutorily-required background check on Jacob D.

Collins by the Crime Information Bureau of the Wisconsin Department of Justice and expiration
of the statutorily-required two-day waiting period, Badger Guns, Inc. employee Michael
Buchholtz delivered the firearm to Collins on May 4, 2009. (Affidavit of Adam J. Allan attached
as Exhibit A).
7.

Julius M. Burton used the firearm purchased by Jacob D. Collins to shoot and

injure the Plaintiffs on June 9, 2009. (Plaintiffs Complaint attached as Exhibit C, par. 82-90).
8.

Julius M. Burton actions in shooting and injuring the Plaintiffs constituted

criminal misuse of the firearm sold by Badger Guns, Inc. Burton pleaded guilty to two counts of
attempted homicide. (Plaintiffs Complaint attached as Exhibit C, par. 82-90).
9.

Badger Outdoors, Inc. was a federally-licensed firearms dealer that conducted

business at 2339 South 43rd Street in West Milwaukee, Wisconsin, from 1987 to September 14,
2007, when it transferred its firearms inventory to Badger Guns, Inc. under the terms of an
agreement whereby Badger Guns, Inc. purchased the assets of Badger Outdoors, Inc. A true and
correct copy of the agreement and related documents are as Exhibit B-1. (Affidavit of Walter J.
Allan attached as Exhibit B).
10.

Defendants Walter J. Allan and Milton Beatovic were the shareholders and

owners of Badger Outdoors, Inc. (Affidavit of Walter J. Allan attached as Exhibit B; Affidavit of
Milton E. Beatovic attached as Exhibit D).
11.

Defendant Milton E. Beatovic retired and moved to Arizona when Badger

Outdoors, Inc. ceased doing business in 2007. At the time of the May 2, 2009 sale of the firearm
by Badger Guns, Inc. to Jacob D. Collins, Mr. Beatovic was residing in Arizona. He did not

assist in the sale or delivery of the firearm to Jacob D. Collins. (Affidavit of Milton E. Beatovic
attached as Exhibit D).
III.

MEMORANDUM OF LAW

A.

The Protection of Lawful Commerce in Arms Act Generally Prohibits

Actions Against Firearm Sellers for Damages Arising From the Criminal
Misuse of Firearms by Third Parties.

The Protection of Lawful Commerce in Arms Act, 15 U.S.C. 7901 et seq. (hereafter
PLCAA) was enacted in 2005 to prohibit causes of action against manufacturers, distributors,
dealers, and importers of firearms and ammunition products, and their trade associations, for
harm solely caused by the criminal or unlawful misuse of firearm products or ammunition
products by others when the product functioned as designed and intended. 15 U.S.C.
7901(b)(1). Among the findings made by Congress was that [t]he manufacture, importation,
possession, sale, and use of firearms and ammunition in the United States are heavily regulated
by Federal, State and local laws and those engaged in firearms sales are not, and should not be,
liable for the harm caused by those who criminally misuse firearms. 15 U.S.C. 7901(a)(4) &
(a)(5).
The operative language of the PLCAA states that [a] qualified civil liability action may
not be brought in any Federal or State court against any licensed manufacturer or seller of a
firearm and shall be immediately dismissed. 15 U.S.C. 7902. Congress defined a qualified
civil liability action as:
[A] civil action or proceeding or an administrative proceeding brought by any
person against any manufacturer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunctive or declaratory relief,
abatement, restitution, fines, penalties, or other relief, resulting from the criminal
or unlawful misuse of a qualified product by the person or by a third party
15 U.S.C. 7903(5)(A).

Certain narrow exceptions to the definition of a qualified civil liability action and
immunity under the PLCAA were created by Congress, none of which have application to this
case. See 15 U.S.C. 7903(5)(A)(i) (vi). Judge Thomas R. Cooper applied the PLCAA in this
case when he granted Defendants motion to dismiss Plaintiffs negligence per se and public
nuisance claims. A copy of Judge Coopers July 11, 2011 Order on Defendants Motion to
Dismiss is attached as Exhibit E.
One of Plaintiffs two remaining substantive claims is a claim for ordinary negligence.
Because the enumerated exceptions to immunity under the PLCAA do not include a claim for
ordinary negligence, plaintiffs claim is a qualified civil liability action and subject to dismissal.
The other remaining substantive claim is negligent entrustment. While Plaintiffs negligent
entrustment claim invokes one of the enumerated exceptions to immunity, the undisputed factual
circumstances in this case do not fit the definition of negligent entrustment under the PLCAA.
To negligently entrust a firearm, the person to whom a firearm is entrusted must be the same
person who then uses the firearm to cause physical injury to himself or others. 15 U.S.C.
7903(5)(B). Here, the firearm was supplied by Badger Guns to Collins and later used by Burton
to cause harm. Thus, the claim pleaded by Plaintiffs as negligent entrustment does not fit an
enumerated exception and is a qualified civil liability action subject to dismissal. 1
B.

ORDINARY NEGLIGENCE
1. Plaintiffs Ordinary Negligence Claim is a Qualified Civil Liability Action
under the PLCAA and Is Subject to Dismissal.

The clear and unambiguous language of the PLCAA demonstrates that Congress did not
create an exception to immunity based on a claim for ordinary negligence. See 15 U.S.C.

Plaintiffs also have remaining claims that are derivative of these two substantive claims - aiding
and abetting and civil conspiracy. See Sections II. D and E, below.

7903(5)(A)(i) (vi); Ileto v. Glock, Inc., 565 F.3d 1126, 1135 1136 (9th Cir. 2009)(Congress
clearly intended to preempt common-law claims, such as general tort theories of liability,
including classic negligence claims). If the patent omission of ordinary negligence from the
enumerated exceptions were not enough to reach that conclusion, Congresss enumeration of two
exceptions with a basis in negligence law negligent entrustment and negligence per se - should
end any debate. See Ileto, 565 F.3d at 1135 n. 6 (That exception demonstrates that Congress
consciously considered how to treat tort claims. While Congress chose generally to pre-empt all
common-law claims, it carved out an exception for certain specified common-law claims
(negligent entrustment and negligence per se).); see also Estate of Kim ex rel. Alexander v.
Coxe, 295 P.3d 380 (Alaska 2013)(The statutory exceptions [under the PLCAA] do not include
general negligence, and reading a general negligence exception into the statute would make the
negligence per se and negligent entrustment exceptions a surplusage.); Jeffries v. District of
Columbia, 2013 WL 76266 *3 (D.C. Cir. January 8, 2013)(the PLCAA unequivocally bars
plaintiffs negligence claim); Gilland v. Sportsmens Outpost, Inc., 2011 WL 2479693 at *16
(Conn.Super. May 26, 2011)([I]t is clear that a qualified civil liability action includes
cases where it is alleged that gun sellers negligently cause harm.).
In their opposition to Defendants Motion to Dismiss, Plaintiffs argued that the PLCAA
does not apply to this case at all because (1) they have alleged a claim under exception (iii) that
Badger Guns violated a law applicable to the sale or marketing of firearms and (2) Congress only
provided immunity in suits in which the harm was solely caused by a third partys criminal use
of a firearm. Plaintiffs arguments were based on a disregard for the structure of the PLCAA and
an incorrect reading of the acts operative provisions, specifically the definition of qualified

civil liability action[s] that may not be brought in any Federal or State Court. 15 U.S.C.
7902. Plaintiffs arguments have also been rejected by the courts.
In Estate of Kim ex rel. Alexander v. Coxe, supra, the plaintiff argued, as Plaintiffs
argued here, that based on language found in the congressional findings and purposes sections of
the PLCAA, the act provides immunity only in cases where the harm is caused solely by
others. 295 P.3d at 386. Stated differently, the plaintiffs in Estate of Kim argued that the
PLCAA does not apply in cases in which it is alleged that a gun seller and a criminal
concurrently caused harm. The Alaska Supreme Court strongly rejected the argument, finding
that the plaintiffs construction of the PLCAA seeks to elevate the preamble over the
substantive portion of the statute, giving effect to one word in the preamble at the expense of
making the enumerated exceptions meaningless. Id. at 387. The court properly recognized that
a statutory preamble can neither restrain nor extend the meaning of an unambiguous statute;
nor can it be used to create doubt or uncertainty which does not otherwise exist. Id. at 386
citing H.J., Inc. v. Nw. Bell Telephone Co., 492 U.S. 229, 245 (1989)(explaining that Congresss
expressed purpose does not alter plain statutory language); accord Smith v. City of Brookfield,
272 Wis. 1, 5 (Wis. 1956)(preamble of a statute cannot enlarge its scope or operation). The court
in Estate of Kim held that the plain reading of Congresss definition of a qualified civil liability
action supports a prohibition on general negligence actions including negligence with
concurrent causation. Id.

See also Gilland v. Sportmens Outpost, Inc., supra, (rejecting

argument that solely caused language in congressional findings and purposes reflected
legislative intent to preserve actions where a gun sellers negligence contributed to the harm). 2

Plaintiffs counsel in this case represented the plaintiffs in both the Estate of Kim ex rel.
Alexander and Gilland cases, and is familiar with the courts rejection of the argument that PLCAA
preserves claims in which its alleged that a gun seller negligently contributed to the harm caused by a
third partys criminal misuse of a firearm.
2

Plaintiffs argument that the PLCAA has no application to their negligence claim because
they have alleged that Defendants knowingly violated a statute applicable to the sale or
marketing of firearms under a different exception is also meritless. A claim based on a knowing
violation of a statute applicable to the sale or marketing of firearms is just one of six enumerated
exceptions to immunity under the PLCAA. See 15 U.S.C. 7903(5)(A)(iii). By asserting that a
claim under exception (iii) opens the door to an ordinary negligence claim and presumably any
other cause of action, Plaintiffs essentially eliminate the protections afforded by the PLCAA.
There is simply no basis in in the plain language of the statute or the rules of statutory
construction to conclude that Congress intended one of six enumerated exceptions to a qualified
civil liability action to swallow the entire statutory scheme. The language and structure of the
PLCAA dictates that exception (iii) be seen for what Congress plainly intended it to be just one
of six exceptions to a qualified civil liability action not a provision that renders each of the
other exceptions surplusage. See Bruno v. Milwaukee County, 260 Wis.2d 633, 647 (Wis.
2003)(statutory provisions are to be construed to avoid surplusages).
In Bannerman v. Mountain State Pawn, Inc., 2010 WL 9103469 (N.D.W.VA. November
5, 2010), a federal district court confronted and rejected the same argument Plaintiffs make here.
The plaintiff in Bannerman alleged that the defendant seller violated 18 U.S.C. 922(d)(1) when
it sold a firearm to a convicted felon. The court recognized that this allegation fit within
exception (iii) and that the PLCAA did not bar the Plaintiffs claim for violation of the statute.3
However, the court nevertheless dismissed the claim because there is no private right of action
under 922(d)(1) under federal law. Id. at *5. The court held that [i]n the absence of a cause of
action arising out of 922 the plaintiffs articulation of a predicate exception under the

Some courts have referred to exception (iii) as the predicate exception.

PLCAA does not, by itself, provide for a private right of action allowing the plaintiffs to impose
civil liability upon the defendant. Id. at 9. And mere articulation of a claim under exception
(iii) does not by itself open the door to an ordinary negligence claim. 4
Plaintiffs argument that a claim under exception (iii) opens the door to all causes of
action should also be rejected because it is based on the false premise that exception (iii) creates
a cause of action against gun sellers. The PLCAA explicitly does not generate causes of
action. Id.; see 15 U.S.C. 7903(5)(D)(no provision of this chapter shall be construed to create
a public or private cause of action or remedy.). The court in Bannerman correctly held that
[t]he PLCAA was enacted with the primary purpose to limit the type of civil actions that could
be brought against sellers and manufacturers of firearms, not to expand or create causes of action
available to plaintiffs. Bannerman, 2010 WL 9103469 at *9. 5
Plaintiffs ordinary negligence claim should be dismissed as to all Defendants because it
is a qualified civil liability action that does not fit within one of the enumerated exceptions to
gun seller immunity.
2. Badger Outdoors Did Not Sell the Firearm Used to Injure Plaintiffs and
Cannot Be Liable for the Allegedly Negligent Sale.
Plaintiffs negligence claim against Badger Outdoors, Inc. (Badger Outdoors) should
be dismissed for the additional reason that the firearm used by Burton to injure the Plaintiffs was
not sold by Badger Outdoors, but by Badger Guns. Badger Outdoors sold its assets and firearms

Similarly, under Wisconsin law there is no private right of action under 18 U.S.C. 922. Olson v.
Ratzel, 89 Wis.2d 227, 246-249 (Wis. Ct. App. 1979).
5

Similarly, in this case, Plaintiffs cannot proceed under exception (iii) because their negligence per
se claim based on violations of State and Federal firearms statutes has been dismissed. See Order attached
as Exhibit E; Estate of Kim ex rel. Alexander v. Coxe, 295 P.2d 380 (Alaska 2013)(negligence per se and
the knowing statutory violation exceptions are interchangeable when the only statutes allegedly
violated are those addressing the sale and marketing of firearms.)

inventory to Badger Guns and discontinued business as a federal firearms licensee in 2007,
nearly two years before the sale of firearm used by Burton was made. There is simply no legal
basis to find Badger Outdoors negligent for an act it did not commit and had no legal duty to
prevent. See Viasystems Technologies Corp. v. Landstar Ranger, Inc., 2012 WL 6020015 *10
(E.D. WI. December 3, 2012)(summary judgment under Wisconsin law for defendant in
negligent entrustment case where defendant never in control of the product). 6
Corporations are separate entities and are treated as such under all ordinary
circumstances. Consumers Co-op of Walworth Co. v. Olsen, 142 Wis.2d 465, 474 (1988)(That
the legal fiction of a corporation is not one to be lightly disregarded remains the law in
Wisconsin as well as in most other jurisdictions.). Plaintiffs allegations wrongly treat Badger
Guns and Badger Outdoors as one legal entity, disregarding their distinct legal status as separate
corporate entities.

For purposes of imposing legal responsibility for the sale of the firearm used

to injure the Plaintiffs, it is not legally relevant that Badger Guns conducted business in the same
location as Badger Outdoors had conducted business, that many of the employees of Badger
Outdoors were hired to work at Badger Guns or that the sales policies of Badger Guns (almost
exclusively dictated by State and Federal Law) were not substantially different from those of
Badger Outdoors. What is legally relevant is that Badger Guns was established as a separate
corporation with ownership entirely different from the ownership of Badger Outdoors and that
Badger Guns conducted business as a federally-licensed firearms dealer under its own federal

In a different case pending in this Circuit Court in which a firearm sold by Badger Guns, not
Badger Outdoors, was criminally used to cause harm, Judge Timothy G. Dugan dismissed Badger
Outdoors and its two shareholders, Walter J. Allan and Milton E. Beatovic, from the plaintiffs negligence
and negligent entrustment claims. See Order on Defendants Motion to Dismiss attached as Exhibit F. In
this case, Judge Cooper did not grant Defendants Motion to Dismiss these Defendants but observed that
Defendants request for dismissal was a very strong summary judgment argument. See Motion Hearing
Transcript attached as Exhibit G, p. 48.

firearms license. Assuming that Plaintiffs can maintain a negligence claim at all, it would be
against Badger Guns, not Badger Outdoors. 7
3. Defendants Walter J. Allan, Adam J. Allan and Milton E. Beatovic Did
Not Sell the Firearm Used to Injure Plaintiffs and Cannot Be Personally
Liable for the Allegedly Negligent Sale.
Plaintiffs Complaint names Walter J. Allan, Adam J. Allan and Milton E. Beatovic as
defendants and correctly describes their status as shareholder owners of Badger Guns (Adam J.
Allan) and Badger Outdoors (Walter J. Allan and Milton E. Beatovic). However, in pleading
their negligence claim, Plaintiffs recast these Defendants in their individual capacities, alleging
that each had a duty to exercise reasonable care in selling guns and that each was negligent in
deploying deficient questioning and screening of Jacob D. Collins. 8
These Defendants should be dismissed from Plaintiffs negligence claim for the
additional reason that they did not personally sell or deliver the firearm to Collins. Without a
factual basis on which to conclude they were present and involved in the sale, there can be no
finding that they were personally guilty of negligence in selling the firearm.
4. Defendants Walter J. Allan, Adam J. Allan and Milton E. Beatovic
Cannot Be Found Negligent in Their Capacities as Shareholder Owners
of Badger Guns and Badger Outdoors.
A corporation is a legal entity, separate and distinct from its shareholders. Consumers
Plaintiffs claim that Badger Outdoors asset sale to Badger Guns was to avoid ATFs revocation
of Badger Outdoors federal firearms license. This story was first told in a newspaper article that appeared
in 2010 in the Milwaukee Journal Sentinel titled Wiped Clean. The article was critical of federal laws
and regulations regarding issuance of federal firearms licenses. However, the adequacy of the laws and
regulations regarding application for and issuance of federal firearms licenses is not an issue to be
addressed in this Court but in the legislative branches of government. The undisputed fact is that ATF
approved Badger Guns application and issued it a license to sell firearms. Plaintiffs disagreement with
ATFs decision and the law under which ATF acted does not translate into a recognized cause of action
whereby Badger Guns corporate and licensed status is disregarded and Badger Outdoors is held legally
responsible for an act it did not commit - Badger Guns sale of the firearm to Collins.
7

Plaintiffs Complaint attached as Exhibit C, 93 & 96.

10

Co-op of Walworth Co. v. Olsen, 142 Wis.2d at 474. The debts and obligations of a corporation
are the responsibility of the corporate entity, not the shareholders. Id. Assuming, arguendo, that
Plaintiffs negligence claim is allowed to proceed against Badger Guns, despite the immunity
provided under the PLCAA, any finding of negligence will be against the corporation, not its
shareholder.
Although there may be circumstances in which applying the corporate fiction would
accomplish a fraudulent purpose, the corporate veil is appropriately pierced and shareholders
will be personally responsible for a corporations financial obligations, a shareholders
responsibility is for the corporations act in creating the obligation, not for any act of the
shareholder. Thus, Plaintiffs negligence claims against Walter J. Allan, Adam J. Allan and
Milton E. Beatovic, in their capacities as shareholders of Badger Guns and Badger Outdoors,
should be dismissed. 9
C.

NEGLIGENT ENTRUSTMENT
1.

Plaintiffs Negligent Entrustment Claim Does Not Meet the Definition

of Negligent Entrustment under the PLCAA.

One of the six enumerated exceptions to the PLCAA definition of a qualified civil
liability action is an action brought against a seller for negligent entrustment 15 U.S.C.
7903(5)(A)(ii). Negligent entrustment is defined as follows:
In Count IX of their Complaint, Plaintiffs have pleaded a piercing the corporate veil remedy in
which they allege that Walter J. Allan, Adam J. Allan, Milton E. Beatovic and Badger Outdoors are all
responsible for the obligations of Badger Guns. First of all, neither Walter J. Allan, Milton E. Beatovic
nor Badger Outdoors are shareholders of Badger Guns. There is no legal basis to hold them responsible
for Badger Guns obligations. With respect to Adam J. Allan, limited liability of corporate shareholders is
the rule in Wisconsin, not the exception. Ruppa v. American States Insurance Co., 91 Wis.2d 465, 474
(Wis. 1988). An exception to the rule exists only in situations in which recognition of the corporate
fiction would accomplish some fraudulent purpose, operate as a constructive fraud or defeat some strong
equitable claim. Milwaukee Toy Co. v. Industrial Commission of Wisconsin, 203 Wis.2d 493, 496 (Wis.
1931). Assuming, arguendo, that Badger Guns is liable to Plaintiffs, there is no basis on which to
conclude that recognition of the Badger Guns corporate status would accomplish a fraudulent purpose.
9

11

As used in subparagraph (A)(ii), the term negligent entrustment means the

supplying of a qualified product by a seller for use by another person when the
seller knows, or reasonably should know, the person to whom the product is
supplied is likely to, and does, use the product in a manner involving
unreasonable risk of physical injury to the person or others.
15 U.S.C. 7903(5)(B). A seller is defined as:
(A) an importer (as defined in section 921 (a)(9) of title 18) who is engaged in the
business as such an importer in interstate commerce and who is licensed to
engage in business as such an importer under chapter 44 of title 18;
(B) a dealer (as defined in section 921(a)(11) of title 18) who is engaged in the
business of such dealer in interstate of foreign commerce and who is licensed
to engage in business as such a dealer under chapter 44 of title 18; 10 or
(C) A person engaged in the business of selling ammunition (as defined in section
921(a)(17)(A) of title 18) in interstate or foreign commerce at the wholesale or
retail level.
15 U.S.C. 7903(6).
Under these statutory definitions and the undisputed facts of the case, Plaintiffs cannot
maintain a negligent entrustment claim against the Defendants. See Noble v. Shawnee Gun Shop,
Inc., 2013 WL 3661312 *3 (Mo. App. W.D. July 16, 2103)(negligent entrustment claim may be
asserted only if it falls within the definition of a negligent entrustment claim provided in 15
U.S.C. 7903(5)(B).). The person to whom Badger Guns supplied the firearm (Collins) was
not the person who thereafter use[d] the firearm to harm the Plaintiffs (Burton). The plain
and ordinary meaning of the words chosen by Congress to define negligent entrustment clearly
describe a situation in which a seller fails to reasonably appreciate a risk that the person with
whom he is dealing across the sales counter will likely use the firearm to cause physical
injury to himself or others. A broader interpretation of a firearm use to include a retail buyers
subsequent sale or delivery of the firearm to a third person, as in this case, cannot be sustained
Section 921(a)(11) defines a dealer as any person engaged in the business of selling firearms
at wholesale or retail. 18 U.S.C. 921(a)(11).
10

12

under the well-established rules of statutory construction.

Statutory construction begins with the language of the statute. State ex rel. Kalal v.
Circuit Court of Dane County, 271 Wis.2d 633, 663 (Wis. 2004). Statutory language is given its
common, ordinary, and accepted meaning, except that technical or specially defined words or
phrases are given their technical or special definitional meaning. Id. (citations omitted). If the
meaning of a statute is plain, the inquiry stops. Seider v. OConnell, 236 Wis.2d 211, 232 (Wis.
2000). The goal is to determine statutory meaning from the language used based on intrinsic text,
structure and context. See State ex rel. Kalal, 271 Wis.2d at 663-665. Resort to extrinsic sources
to find statutory meaning, such as legislative history, are not consulted unless the statutory
language is ambiguous:
An interpretive method that focuses on textual, intrinsic sources of statutory
meaning and cabins the use of extrinsic sources of legislative intent is grounded in
more than a mistrust of legislative history or cynicism about the capacity of the
legislative or judicial processes to be manipulated The principles of statutory
interpretation that we have restated here are rooted in and fundamental to the rule
of law. Ours is a government of laws not men, and it is simply incompatible
with democratic government, or indeed, even with fair government, to have the
meaning of a law determined by what the lawgiver meant, rather than by what the
lawgiver promulgated. Antonin Scalia, A Matter of Interpretation, at 17
(Princeton University Press, 1997). It is the law that governs, not the intent of the
lawgiver.... Men may intend what they will; but it is only the laws that they enact
which bind us. Id.
State ex rel. Kalal ., 271 Wis. 2d 633 at 666-667. 11
The dictionary definition of use is the act or practice of employing something
(WEBSTERS NINTH NEW COLLEGIATE DICTIONARY, 1299 (1987)) or to put or bring into action

11

In State ex rel. Kalal, the court was required to determine the statutory meaning of the word
refuse and looked to the dictionary definition of the term. The court found the dictionary definition
reasonable in the statutory context and consistent with the manifest statutory purpose and thus the
meaning was plain. 271 Wis.2d at 668. With no ambiguity to clarify, there was no need to consult
extrinsic sources such as legislative history. Id.

13

or service. (BLACKS LAW DICTIONARY 1382 (5th Ed. 1979)).12 These definitions are entirely
consistent with the purpose of the PLCAA to prohibit causes of action for harm caused by
the criminal or unlawful use of firearm products or ammunition products by others when they
functioned as designed and intended. 15 U.S.C. 7901(b)(1)(emphasis added). A use of a
firearm under the PLCAA can only mean employing a firearms functional characteristics to
cause a risk of injury.
Moreover, the context in which use appears elsewhere in operative PLCAA provisions
refutes the notion that Collins used the firearm by merely delivering it to Burton. In the section
preceding the definition of negligent entrustment - 7903(5)(A)(v) use of a firearm is used
synonymously with discharge and both terms are used in connection with death, physical
injury and property damage.
(v) an action for death, physical injuries or property damage resulting directly
from a defect in or manufacture of the product, when used as intended or in a
reasonably foreseeable manner, except that when the discharge of the product was
caused by a volitional act that constituted a criminal offense, then such act shall
be considered the sole proximate cause of any resulting death, personal injuries or
property damage.
15 U.S.C. 7903(5)(A)(v)(emphasis added). Indeed, the plain meaning of use as used in the
PLCAA is also ascertainable from the congressional findings that precede the acts operative
provisions, wherein a firearm sale and a firearm use are listed in sequence as distinct
heavily regulated activities. 15 U.S.C. 7901(a)(4). 13

Consistent with these definitions, the dictionary definition of employ connotes active use: to
make use of (someone or something inactive). WEBSTERS NINTH NEW COLLEGIATE DICTIONARY, 1299
(1987).
12

13

An entirely different statutory scheme - the Gun Control Act - provides for enhanced criminal
penalties if a person uses a firearm in the commission of a drug trafficking crime. 18 U.S.C. 924(c)(1).
The United States Supreme Court looked to the structure and purpose of the statute and interpreted a
firearm use under 924(c)(1) to require active employment of the firearm. Bailey v. U.S., 516 U.S.
137, 144-45 (1995)(use implies action and implementation.). The active-employment understanding

14

Finally, it is a fundamental rule of statutory construction that any construction that is

absurd or unreasonable must be avoided. State v. Circuit Court of Dane County, 214 Wis.2d 385,
391 (Wis. 1997). If a sale of a firearm by its retail purchaser can be a use of the firearm for
the purposes of a negligent entrustment claim against the retail seller an unreasonable
construction results. When sale and sell are substituted for use where it appears in the
definition of negligent entrustment, the definition becomes:
[T]he term negligent entrustment means the supplying of a qualified product by
a seller for sale by another person when the seller knows, or reasonably should
know, the person to whom the product is supplied is likely to, and does, sell the
product in a manner involving unreasonable risk of physical injury to the person
or others.
Under this construction, a negligent entrustment claim could be maintained against a
seller in the complete absence of any real or threatened physical injury. Firearm sellers would be
exposed to claims for merely making sales that are alleged to pose unreasonable risk. See
Bankert by Habush v. Threshermens Mutual Ins. Co., 110 Wis.2d 469, 476 (Wis. 1983)(the
person to whom a thing is entrusted must in fact inflict injury for liability to ensue). Moreover,
because firearm importers and wholesale distributors are included in the definition of a seller
under the PLCAA, they would find themselves facing potential vicarious negligent entrustment
liability for sales made by downstream retail dealers to whom they sold firearms. This type of
claim, which Plaintiffs unreasonable construction would countenance, is the type of claim that
lead to enactment of the PLCAA in the first place and the broad protections it provides to firearm
sellers. See e.g. Ileto, 565 F.3d at 1136-37 (shooting victims action against manufacturers and
of use certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or
attempting to fire a firearm Thus, reference to a firearm calculated to bring about a change in the
circumstances of the predicate offense is a use just as the silent but obvious and forceful presence of a
gun on a table can be a use. Id. at 148. Here, the person who actively employed the firearm at the
time of the criminal offense was Burton. The transfer of the firearm by Collins to Burton weeks before the
shooting occurred would not constitute a use under 924(c)(1) and the Courts interpretation of the
term.

15

wholesale distributors alleging they knew or should have known that downstream sellers would
in turn sell to illegal buyers); Adames v. Sheahan, 378 Ill. App.3d 502, 533 (Ill.
2007)([P]laintiffs correctly assert that Congress was primarily concerned with novel nuisance
cases like Ileto). See also 15 U.S.C. 7901(a)(7)(The liability actions commenced or
contemplated by the Federal Government, States, municipalities, and private interest groups and
others are based on theories without foundation hundreds of years of the common law and
jurisprudence of the United States and do not represent a bona fide expansion of the common
law.).
2.

Badger Outdoors Did Not Sell the Firearm to Collins and Cannot Be
Liable for Negligently Entrusting the Firearm.

Plaintiffs negligence entrustment claim against Badger Outdoors should be dismissed for
the additional reason that the firearm sold to Collins and used by Burton was not sold by Badger
Outdoors, but by Badger Guns.

Actions for negligent entrustment are restricted under

7903(5)(B) to claims against specifically defined sellers of firearms. See 7903(6). Others,
who fall outside the definition of a seller, are protected against negligent entrustment claims,
including firearm manufacturers. The restriction to sellers embodies the requirement control
found in Section 308 of the Restatement (Second) of Torts 2d:
It is negligence to permit a third person to use a thing or to engage in an activity
which is under the control of the actor, if the actor knows or should know that
such person intends or is likely to use the thing or to conduct himself in the
activity in such a manner as to create an unreasonable risk of harm to others.
RESTATEMENT (SECOND)

OF

TORTS 2D, SECTION 308. See Bankert, 110 Wis.2d at 476. Badger

Outdoors was not the seller of the firearm and had no control over the sale. It cannot be liable
for negligently entrusting the firearm to Collins as matter of law.

16

3. Defendants Adam J. Allan, Walter J. Allan, and Milton E. Beatovic Did

Not Sell the Firearm to Collins and Cannot Be Personally Liable for
Negligently Entrusting the Firearm.
For the same reasons that Badger Outdoors cannot be liable for negligent entrustment,
Adam J. Allan, Walter J. Allan and Milton E. Beatovic cannot be liable, in their individual
capacities, for negligent entrustment. They were not sellers of the firearm to Collins.
Plaintiffs claims for negligent entrustment against these Defendants in their individual
capacities should be dismissed.
4. Defendants Adam J. Allan, Walter J. Allan and Milton E. Beatovic
Cannot Be Guilty of Negligent Entrustment in Their Capacities as
Shareholder Owners of Badger Guns and Badger Outdoors.
Adam J. Allan, Walter J. Allan and Milton E. Beatovic also cannot, as a matter of law, be
liable for negligent entrustment in their capacities as owner shareholders of Badger Guns and
Badger Outdoors. Assuming, arguendo, that Plaintiffs negligent entrustment claim is allowed
to proceed against either Badger Guns or Badger Outdoors, any liability would be that of the
corporation, not its shareholders. Thus, Plaintiffs negligence entrustment claims against Adam
J. Allan, Walter J. Allan and Milton E. Beatovic, in their capacities as shareholders of Badger
Guns and Badger Outdoors, should be dismissed.
D. CIVIL CONSPIRACY
Plaintiffs allege that the Defendants Badger Outdoors, Adam J. Allan, Walter J. Allan
and Milton E. Beatovic formed a civil conspiracy to assist Badger Guns in selling firearms
without exercising ordinary care. (Exhibit C, par. 130). A claim for damages resulting from an
alleged civil conspiracy requires (1) evidence establishing the formation and operation of the
conspiracy; (2) proof of a wrongful act done in furtherance of the conspiracy; and (3) evidence of

17

damages resulting from the wrongful act. Onderdonk v. Lamb, 79 Wis.2d 241, 247 (Wis. 1977).
The gravamen of a civil action for damages resulting from an alleged conspiracy is not the
conspiracy itself but rather the civil wrong which has been committed pursuant to the conspiracy
and which results in damage to the plaintiff. Radue v. Dill, 74 Wis.2d 239, 241 (Wis. 1976).
Here, Plaintiffs allege that Badger Guns negligent sale and negligent entrustment of the firearm
to Collins was the specific wrong that resulted in damages to them. 14
Plaintiffs civil conspiracy claim should be dismissed for multiple reasons.
1. Negligent Conduct Cannot Be the Basis for a Civil Conspiracy.
Under Wisconsin law, a civil conspiracy requires a specific intent on the part of the
conspirators to commit the wrongful act. Radue, 74 Wis.2d at 241. One cannot conspire to
cause negligent harm. Campbell v. A.H. Robbins Co., Inc., 615 F.Supp. 496, 500 (W.D. Wis.
1985)(motion to dismiss granted under Wisconsin law based, in part, on absence of intent to
conspire toward an unlawful end). Indeed, an agreement among persons to intentionally act in a
negligent manner is a non sequitur:
Since one cannot agree, expressly or tacitly, to commit a wrong about which he
has no knowledge, in order for civil conspiracy to arise, the parties must be aware
of the harm or wrongful conduct at the beginning of the combination or
agreement. Thus, civil conspiracy is an intentional tort requiring specific intent to
accomplish the contemplated wrong and because negligence is, by definition, not
an intentional wrong, the parties cannot engage in a civil conspiracy to be
negligent.
16 Am. Jur. 2d, Conspiracy 51. Wisconsin law is line with the law of other jurisdictions, most
of which require an intentional tort to be the wrongful act in furtherance of a civil conspiracy.

14

There is no independent cause of action for civil conspiracy under Wisconsin law. Onderdunk, 79
Wis.2d at 246. Rather, there is an action for damages caused by conduct undertaken pursuant to the
conspiracy. Radue, 74 Wis.2d at 241. If the conduct undertaken in furtherance of the conspiracy is not
actionable, there can be no actionable conspiracy. Thus, if summary judgment is entered for the
Defendants on Plaintiffs negligence and negligent entrustment claims, Plaintiffs civil conspiracy claim
must be dismissed as well.

18

Ausness, Conspiracy Theories: Is There a Place for Civil Conspiracy in Products Liability
Litigation?, 74 Tenn. L. Rev. 383, 391 (2007)(collecting cases).
The courts decision in Shirley v. Glass, 241 P.3d 134 (Kan. Ct. App. 2010) is right on
point. There, the plaintiff alleged that a firearms dealer conspired with others to sell a firearm to
an illegal straw purchaser, who thereafter used the firearm to shoot the plaintiffs decedent. Id. at
156. The wrongful act giving rise to the civil conspiracy claim was alleged to be the negligent
supply of the gun actionable under negligence, negligence entrustment and negligence per
se. Id. at 157. The court affirmed summary judgment for the firearms dealer, finding that the
plaintiffs civil conspiracy claim makes no sense because it would be illogical to find a
meeting of the minds (conspiracy) to act negligently. Id. (citations omitted).15
The same conclusion should be reached in this case. Summary judgment should be
entered for the Defendants on Plaintiffs claim that Defendants conspired with Badger Guns to
negligently sell the firearm to Collins.
2. There is No Evidence That Defendants Formed a Conspiracy to Sell the
Firearm to Collins.
Plaintiffs complain that the incorporation of Badger Guns in 2007 was a conspiracy to
continue to unlawfully and unreasonably sell firearms without exercising ordinary care to make
a profit. (Exhibit D, par. 129). Although Plaintiffs briefly allude in their Complaint to the sale
of the firearm to Collins in 2009 as an example of the alleged conspiracy in operation, Plaintiffs
allegations suggest that the incorporation and general operation of Badger Guns was the
wrongful act from which they sustained damages. However, recoverable damages stem from the
wrongful act committed in furtherance of the conspiracy, not from the conspiracy itself.

Plaintiffs counsel in this case represented the plaintiff in the Shirley case, and is familiar with the
courts rejection of the argument that negligent conduct can serve as the basis for a civil conspiracy claim.
15

19

Onderdunk, 79 Wis.2d at 247. The gravamen of a conspiracy claim is not the conspiracy
itself but rather the civil wrong which has been committed. Radue, 74 Wis.2d at 241.
The alleged wrongful act committed in furtherance of the claimed conspiracy was Badger
Guns sale of the firearm to Collins.

Each of the Defendants must have had intentional

participation in the transaction to make them party to the alleged conspiracy. Winslow v. Brown,
125 Wis.2d 327, 331 (Ct. App. 1985). There is no evidence that Adam J. Allan, Walter J. Allan
or Milton E. Beatovic entered into an agreement with Badger Guns, tacit or otherwise, whereby
the firearm would be sold to Collins. The firearm was sold by Badger Guns salesman Donald
Flora and delivered two days later by Badger Guns salesman Michael Buchholz. Adam J. Allan
was not at the store when the sale to Collins was made. Milton E. Beatovic was also not present,
but was retired and living in Arizona. And although Walter J. Allan was present in the store on
the day of the sale to Collins, he was not involved in the sale. Badger Outdoors had stopped
doing business, had no employees and was not present in the store when the firearm was sold.
Plaintiffs attempt to implicate Badger Outdoors, Adam J. Allan, Walter J. Allan and Milton E.
Beatovic in a conspiracy to deliver the firearm to Collins reaches too far and stretches the law of
civil conspiracy beyond recognition.
3. Adam J. Allan Could Not Conspire with Badger Guns as a Matter of
Law.
Adam J. Allan should be dismissed from the civil conspiracy claim for the additional
reason that as the shareholder of Badger Guns he cannot conspire with the corporation he owns
under the intracorporate conspiracy doctrine. Where a corporation and its owners have a
complete unity of interest and the owner has the ability to exercise complete control over the
corporation, they cannot conspire as a matter of law. Brew City Redevelopement Group, LLC v.
Ferchill Group, 297 Wis.2d 606, 629-30 (Wis. 2006) citing Copperweld Corp. v. Independence
20

Tube Corp., 467 U.S. 752, 771-72 (1984); see also Ford Motor Company v. Lyons, 137 Wis.2d
397, 426-30 (Wis. Ct. App. 1987)(parent corporation and wholly owned subsidiary incapable of
conspiring as a matter of law). Here, the act in furtherance of the claimed conspiracy was
committed by Badger Guns, with which Adam J. Allan as the sole shareholder has a complete
unity of interests. There is no set of circumstances under which the sole shareholder of a
corporation can be vicariously liable under a conspiracy theory for the corporations acts.
E.

AIDING AND ABETTING

1.

There Is No Evidence That Defendants Aided and Abetted Badger

Guns Sale of the Firearm to Collins.

Plaintiffs allege that Badger Outdoors, Adam J. Allan, Walter J. Allan and Milton E.
Beatovic aided and abetted Badger Guns in its sale of the firearm to Collins. (Exhibit A to
Motion for Summary Judgment, 135). A person may be liable in a civil action for aiding and
abetting another in committing a tortious act if (1) the person undertakes conduct that as a matter
of objective fact aids another in the commission of the act; and (2) the person consciously desires
or intends that his conduct will yield such assistance. Winslow, 125 Wis.2d at 331. Mere
presence at the commission of a tortious act or even passive approval of the act does not
constitute aiding and abetting. Id. at 336-37. Liability for aiding and abetting tortious conduct by
another requires the defendants active assistance in committing the tortious act.
The evidence establishes that Defendants did not provide active assistance to Badger
Guns salesman Donald Flora in his sale of the firearm to Collins. Adam J. Allan was not at the
store when the sale to Collins was made. Milton E. Beatovic was also not present but was retired
and living in Arizona. Although Walter J. Allan was present in the store on the day of the sale to
Collins, he was not involved in the sale. Badger Outdoors had stopped doing business in 2007,
had no employees in 2009 and was not present in the store that day. There is no factual basis on
21

which to find that any of these Defendants provided any assistance to Flora in his decision to sell
the firearm to Collins.
Plaintiffs make a further claim that these Defendants aided and abetted Badger Outdoors
merely because they encouraged and acquiesced in the manner by which Badger Guns operated
its business in pursuit of profits without exercising ordinary care. (Exhibit A to Motion for
Summary Judgment, 135). Plaintiffs again reach too far. The mere existence of an organization
and its general operations are not actionable torts. And persons are not liable for aiding and
abetting specific tortious acts committed by an organization simply because they may have
assisted in the organizations general operation. Under Plaintiffs expansive view of aiding and
abetting liability, any person with a role in an organizations operations would have legal
responsibility for every tortious act committed by the organization and its employees regardless
of whether as a matter of objective fact they actually assisted in commission of the tort.
Plaintiffs broad interpretation of aiding and abetting liability should be rejected and their claim
should be dismissed.
2.

Adam J. Allan Could Not Aid and Abet Badger Guns as a Matter of
Law.

Adam J. Allan should be dismissed from Plaintiffs aiding and abetting claim for the
additional reason that, as the sole owner of Badger guns, he cannot be liable for aiding and
abetting the corporations alleged wrongful act. Cf. Brew City Redevelopement Group, LLC v.
Ferchill Group, 297 Wis.2d 606, 629-30 (Wis. 2006). Imposing aiding and abetting liability on a
shareholder under such circumstances would effectively eliminate the limited liability
shareholders have under Wisconsin law for the corporations obligations. See Consumers Co-op
of Walworth Co., 142 Wis.2d at 474.

22

IV.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that summary judgment be
entered in their favor on Counts I, II, VI, VII and IX of Plaintiffs Complaint.

James B. Vogts
(admitted pro hac vice)
Swanson, Martin & Bell, LLP
330 North Wabash Avenue, Suite 3300
Chicago, Illinois 60611
(312) 321-9000
jvogts@smbtrials.com

James S. Smith
(State Bar No. 1011121)
Smith, Gunderson & Rowen, S,C.
Glenwood Executive Center
15460 West Capitol Drive
Brookfield, Wisconsin 53005
(262) 783-6633
jsmith@sgr-law.com

Attorneys for Badger Guns, Inc., Badger

Outdoors, Inc., Adam J. Allan, Walter J.
Allan and Milton E. Beatovic
Mary E. Nelson
(State Bar No. 1000518)
Crivello & Carlson
710 N. Plankinton Ave.
Milwaukee, Wisconsin 53202
414-271-7722
mnelson@crivellocarlson.com
Attorney for Milton E. Beatovic

23

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Defendants Statement of
Undisputed Material Facts and Memorandum of Law in Support of Motion for Summary
Judgment was served upon those listed in the attached Service List, via overnight U.S. Mail,
proper postage prepaid, before the hour of 5:00 p.m., this 1st day of August, 2013, from the
law offices of Swanson, Martin & Bell, LLP, 330 North Wabash Avenue, Suite 3300, Chicago,
Illinois 60611.

[] Under penalties as provided by law, the undersigned certifies that the statements set forth in this Certificate of
Service are true and accurate.

____________________________________

24

SERVICE LIST

Patrick O. Dunphy, Esq.

Brett A. Eckstein, Esq.
Cannon & Dunphy, S.C.
595 North Barker Road
Brookfield, Wisconsin 53045
(262) 796-3701
(262) 796-3711 Fax
pdunphy@cannon-dunphy.com
beckstein@cannon-dunphy.com
Attorneys for Plaintiffs
Heidi L. Vogt, Esq.
Doug M. Raines, Esq.
von Briesen & Roper, S.C.
411 East Wisconsin Avenue, Suite 700
Milwaukee, Wisconsin 53202
(414) 276-1122
(414) 276-6281 Fax
hvogt@vonbriesen.com
draines@vonbriesen.com
Attorneys for West Bend Mutual
Insurance Company
Heidi Wick Spoerl, Esq.
Assistant City Attorney
800 City Hall
200 East Wells Street
Milwaukee, Wisconsin 53202
(414) 286-2601
(414) 286-8550 Fax
Attorney for City of Milwaukee

Jonathan E. Lowy, Esq.

Brady Center to Prevent Gun Violence Legal
Action Project
1225 Eye Street, N.W., Suite 1100
Washington, D.C. 20005
(202) 289-7319
Attorney for Plaintiffs

Wayne M. Yankala
Mingo & Yankala, S.C.
One Plaza East Office Center
Suite 1125
330 East Kilbourn Avenue
Milwaukee, Wisconsin 53202
(414) 273-7400
(414) 273-5049 Fax
wyankala@mysclaw.com
Attorney for Badger Guns, Inc., Badger
Outdoors, Inc, Adam J. Allan, Walter J. Allan
and Mick Beatovic

Allen M. Ratkowski
Piper & Schmidt
The Van Buren Building 5th Floor
733 N. Van Buren St.
Milwaukee, Wisconsin 53202
Attorney for Metropolitan Property
and Casualty Insurance Company

25

26