NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 20, 2009∗
Decided July 24, 2009
Before
FRANK H. EASTERBROOK , Chief Judge
RICHARD D. C UDAHY, Circuit Judge
KENNETH F. RIPPLE , Circuit Judge
No. 08-4047
JAMES J. FOSKETT and MARY C. FOSKETT ,
Plaintiffs,
v. Appeal from the United
States District Court for the
GREAT WOLF RESORTS, INC. and GREAT BEAR Western District of Wisconsin.
LODGE OF WISCONSIN DELLS, LLC,
Defendants-Third Party Plaintiffs-Appellees, No. 06 C 0503 S
Barbara B. Crabb, Chief Judge.
v.
TALL PINES DEVELOPMENT OF WISCONSIN
DELLS, LLC,
Third Party Defendant-Appellant.
Order
After our initial decision, 518 F.3d 518 (7th Cir. 2008), which held that the Sellers
are entitled to indemnity, all Sellers asked the district court to award attorneys’ fees as
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 08-4047 Page 2
part of that indemnity. The district court granted these motions, with one exception: it
held that Tall Pines, one of the Sellers, is not entitled to indemnity for the attorneys’ fees
paid to Crivello Carlson, S.C. The court concluded that these fees are excluded by
§10.5(d) of the asset purchase agreement. This provides: “Neither party shall have an
obligation to indemnify another party hereto with respect to any Claim ... to the extent
that there are insurance proceeds collectible by the Indemnified Party with respect
thereto, regardless of whether the Indemnified Party chooses to submit a claim against
such insurance policy.” The parties call this the Insurance Offset clause. Crivello
Carlson’s bills were paid by Tall Pines’s insurance carrier and therefore were within the
scope of the Insurance Offset, the district court held.
Tall Pines’s principal argument on appeal is that the district court did not follow
the law of the case. That doctrine concerns the effect of a court’s own decisions on
future proceedings, and the district court did not contradict itself. The relevant doctrine
would be the mandate rule--the requirement that a district court carry out the court of
appeals’ decision. Nothing that the district judge did on remand violated our mandate.
We held that the Sellers are entitled to indemnity. We were not asked to decide, and did
not decide, whether that indemnity included attorneys’ fees that had been paid by an
insurer.
The district court applied the Insurance Offset correctly. Tall Pines contends that
the Insurance Offset is limited to insurance indemnity, and that other payments by an
insurer, such as those to lawyers who conduct the defense under the policy, are outside
its scope. But §10.5(d) does not distinguish between payment of indemnity and
payment of defense costs. It speaks of insurance “proceeds” generally. Tall Pines does
not contend that Wisconsin, whose law supplies the rule of decision in this diversity
litigation, understands “insurance proceeds” to mean only indemnity. What is more,
§10 expressly includes defense costs in its definition of the term “claim” as used in the
Insurance Offset. (“As used in Section 10, the term Claim shall include ... all reasonable
costs and expenses (including ... reasonable attorneys fees and costs) of investigating,
defending or successfully asserting any of the foregoing or of successfully enforcing this
agreement.”) The judgment of the district court therefore is affirmed.