# A.O. Smith Corp. v. Allstate Insurance

> Court of Appeals of Wisconsin · October 20, 1998 · 222 Wis. 2d 475

URL: https://www.frixlaw.com/law-library/cases/9705689

## Case

- **Full name:** A.O. Smith Corporation, a Delaware Corporation, A.O. Smith Harvestore Products, Inc., a Delaware Corporation, Agristor Credit Corporation, a Delaware Corporation and Agristor Leasing, a Wisconsin Partnership, Plaintiffs-Respondents, v. Allstate Insurance Companies, an Illinois Corporation, Defendant-Appellant, Continental Casualty Company, a Delaware Corporation, Defendant-Co-Appellant, Wausau Insurance Companies, a Wisconsin Corporation, Defendant
- **Court:** Court of Appeals of Wisconsin
- **Decided:** October 20, 1998
- **Citations:** 222 Wis. 2d 475; 588 N.W.2d 285; 1998 Wisc. App. LEXIS 1221
- **Precedential status:** Published
- **Opinion:** Concurrence by Schudson
- **Judges:** Wedemeyer, Schudson, Myse
- **Cited by:** 300 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705689

## How later opinions describe it (automated extraction)

- stating that it is “inherently unfair” for an appellant to save an argument for its reply brief because this deprives the respondent of an opportunity to address the argument in its brief
- explaining that issues raised in the circuit court but not argued in a party’s appellate brief are deemed abandoned and will not be considered
- stating 17 No. 2023AP991-CR that the court of appeals generally does not consider arguments raised for the first time in a reply brief
- holding that “in order for a party to have an issue considered by this court, it must be raised and argued within its brief”
- explaining that it is fundamentally unfair to allow a party to raise an argument for the first time in the reply brief

## Opinion text

SCHUDSON, J.
(concurring). Although I agree with much of what the majority has written, I do not join in this opinion primarily because the majority has *505 addressed the merits of Smith's argument on "reckless misrepresentation."
As the majority explains, Smith orally argued that even if we were to conclude that intent to injure must be inferred in intentional fraud as a matter of law, we still should affirm because the "reckless misrepresentation" claims alleged covered occurrences. As the majority also explains, however, Smith could not resurrect that argument because it failed to present it in its appellate brief. Nevertheless, the majority, inexplicably, then goes on to address the merits of Smith's abandoned argument. Doing so is unnecessary and unwise. After all, because Smith did not present this argument in its brief, the opposing parties had no opportunity to address the issue. Consequently, this court's discussion of the "reckless misrepresentation" issue comes without the benefit of adversarial argument.
Smith's oral argument on the merits of the "reckless misrepresentation" issue was interesting. If properly presented to the court, it could very well have led to an equally interesting response, Smith's reply, and this court's further research based on the parties' arguments. That proper appellate process never took place and, therefore, the majority has correctly concluded that Smith abandoned the issue. Accordingly, we also should refrain from addressing the issue.
I am authorized to state that Judge Gordon Myse joins in this concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705689. Public record. Not legal advice.