In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1823
SANCHELIMA INTERNATIONAL, INC., et al.,
Plaintiffs‐Appellees,
v.
WALKER STAINLESS EQUIPMENT CO., LLC, et al.,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 16‐cv‐644‐jdp — James D. Peterson, Chief Judge.
____________________
ARGUED DECEMBER 4, 2018 — DECIDED APRIL 10, 2019
____________________
Before BAUER, KANNE, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Decades ago, the Wisconsin Su‐
preme Court interpreted two limited remedy provisions of
the Uniform Commercial Code in Murray v. Holiday Rambler,
Inc., 265 N.W.2d 513 (Wis. 1978). Wisconsin courts, and this
court, have faithfully applied Murray since. But several other
states have interpreted the same UCC provisions differently.
On this basis alone, appellants ask us to overturn Murray, or
at the least to certify the question to the Wisconsin Supreme
2 No. 18‐1823
Court. We cannot overturn established state precedent simply
because it may be out of step with modern trends. A Japanese
proverb may teach that “the nail that sticks out gets ham‐
mered down.” But federal courts wield no such hammer
when it comes to issues of state law. Murray remains the bind‐
ing interpretation under Wisconsin law until and unless the
Wisconsin Supreme Court decides to overturn it.
I.
This case comes to us in diversity. The defendants, Walker
Stainless Equipment Co., LLC and its affiliates, manufacture
dairy silos. The plaintiffs, Sanchelima International, Inc. and
its affiliate, sell dairy silos in Latin America.1 In 2013, after
decades of doing business together, the parties entered into a
distribution agreement providing that Sanchelima would
serve as Walker’s exclusive distributor of dairy silos in thir‐
teen Latin American countries. Walker agreed not to sell silos
directly to third parties in those thirteen countries.
The contract contained a limited remedies provision and a
damages disclaimer. Section X(F) of the distribution agree‐
ment reads:
Manufacturer Liability Limitations. To the ex‐
tent a … claim … arises out of any purchase or‐
der … or otherwise aris[es] out of this agree‐
ment, [Walker’s] aggregate total liability for any
and all such claims shall be capped at, and
[Walker] shall have no liability to
Sanchelima … in excess of, the amount(s) paid
1 Walker and its affiliate co‐defendants are all citizens of Delaware
and Indiana. Sanchelima and its affiliate co‐plaintiff are citizens of Florida
and Mexico.
No. 18‐1823 3
by [Sanchelima] to [Walker] under such pur‐
chase order, subject to section X(G). Except for
the foregoing liabilities, [Walker] … shall have
no liability to [Sanchelima] for any
claim … arising out of or in connection with this
agreement, the products, [Walker] trademarks,
documentation, or any business activity of
[Sanchelima].
Section X(G) of the distribution agreement reads:
Liability Exclusions. No [Walker‐affiliated
company] shall be liable to any [Sanchelima‐af‐
filiated company] for any special, indirect, inci‐
dental or consequential losses or damages includ‐
ing, without limitation, any lost profits or punitive
damages, arising out of or in connection with
this agreement, the products, documentation,
[Walker] trademarks or any business activity of
[Sanchelima].
(emphasis added). We refer to sections X(F) and X(G) collec‐
tively as the limited remedies provision. The contract’s choice
of law provision selected Wisconsin law.
After the agreement was signed, Sanchelima started to
market Walker products in Mexico. Sanchelima hired sales
representatives for its Mexico office and attended Mexican
trade shows. Walker assigned a representative to work with
Sanchelima in Mexico, but otherwise took no affirmative
steps to market its products in the thirteen countries covered
by the distribution agreement.
Walker’s lack of marketing did not prevent it from making
significant direct sales in Latin America, cutting out
4 No. 18‐1823
Sanchelima as the distribution middle man. In 2014, Walker
sold over $600,000 worth of dairy silos, for distribution to a
factory in Monterrey, Mexico. A few days later, Walker sold a
silo to a Nicaraguan company for over $66,000. In 2015,
Walker sold silos to a Nestlé plant in Mexico for almost
$3 million. And in 2017, Walker sold two processor tanks to a
Mexican juice company for almost $160,000.
Sanchelima learned of the Nestlé sale and notified Walker
that it considered it to be a breach of the distribution agree‐
ment. When mediation talks broke down, Sanchelima filed
this suit in 2016.2 Six months later, Walker notified
Sanchelima it was terminating their agreement without cause.
Sanchelima sought lost profits of more than $600,000 on its
breach of contract claims. Walker denied breaching the distri‐
bution agreement and raised several affirmative defenses and
counterclaims. On appeal, only one is relevant: Walker raised
the limited remedies provision of the distribution agreement
as an affirmative defense and noted it explicitly precludes re‐
covery of “any lost profits … arising out of or in connection
with the Distributor Agreement … .”
Walker moved for summary judgment relying on the con‐
tract’s limited remedies provision. The district court denied
the motion and held that provision violates Wisconsin’s ver‐
sion of the UCC § 2‐719, codified at Wis. Stat. § 402.719,3
which reads in relevant part:
2
Though the original suit concerned only the 2016 Nestlé sale,
Sanchelima added claims relating to the 2014 and 2017 sales after discov‐
ery revealed them.
3 Wis. Stat. § 402.719 uses language identical to that in UCC § 2‐719.
No. 18‐1823 5
(2) Where circumstances cause an exclusive or
limited remedy to fail of its essential purpose, rem‐
edy may be had as provided in chs. 401 to 411.
(3) Consequential damages may be limited or ex‐
cluded unless the limitation or exclusion is uncon‐
scionable. Limitation of consequential damages
for injury to the person in the case of consumer
goods is prima facie unconscionable but limita‐
tion of damages where the loss is commercial is
not.
(emphases added). Because the limited remedy provision
provided no relief for Walker’s breach of the exclusivity pro‐
vision, the court held it failed of its essential purpose and was
unconscionable. The district court therefore considered all
UCC remedies, including consequential damages for lost
profits.
The case was tried to the bench. The court found that
Walker breached the parties’ contract and that, but for
Walker’s breach, Sanchelima would have made all of the sales
Walker made in Mexico.4 Applying Sanchelima’s average
gross profit margin on Walker products to Walker’s gross rev‐
enue on the sales in question, the district court awarded
Sanchelima $778,306.70 in damages for lost profits. Walker
appealed.
II.
Only damages are at issue here. The district court held that
the consequential damages disclaimer in Section X(G) did not
4 The court found Sanchelima would not have made the sale in Nica‐
ragua because Sanchelima has no presence in that country.
6 No. 18‐1823
apply because the limited remedies provision failed of its es‐
sential purpose to provide Sanchelima relief for Walker’s
breach of exclusivity. The court so ruled based on Wisconsin’s
interpretation of UCC § 2‐719.
Although UCC § 2‐719(3) allows contracting parties to
limit remedies for breach of contract and disclaim consequen‐
tial damages (provided the limitations are not unconsciona‐
ble), UCC § 2‐719(2) makes all UCC remedies available when
such a limited remedies provision “fail[s] of its essential pur‐
pose.” In interpreting these two provisions, the Wisconsin Su‐
preme Court has adopted the “dependent approach.” See
Murray, 265 N.W.2d at 519–20. Under the dependent ap‐
proach, if a litigant proves the limited remedy fails of its es‐
sential purpose under UCC § 2‐719(2), any accompanying
consequential damages disclaimer is per se unconscionable
under UCC § 2‐719(3). Murray, 265 N.W.2d at 526 (“Thus, alt‐
hough an express warranty excludes consequential damages,
when the exclusive contractual remedy fails, the buyer may
recover consequential damages … as though the limitation
had never existed.”).
When the Wisconsin Supreme Court decided Murray, a
majority of states had adopted the dependent approach in in‐
terpreting UCC § 2‐719(2) and (3). See, e.g., Ehlers v. Chrysler
Motor Corp., 226 N.W.2d 157, 160–62 (S.D. 1975); Adams v. J.I.
Case Co., 261 N.E.2d 1, 7–8 (Ill. App. Ct. 1970); see also Debra
L. Goetz et al., Article Two Warranties in Commercial Transac‐
tions: An Update, 72 CORNELL L. REV. 1159, 1307 (1987) (“A ma‐
jority of cases have answered correctly that the failure of an
exclusive remedy voids the consequential damages exclusion
clause … .”).
No. 18‐1823 7
But in the intervening decades since Murray, many courts
have shifted to the “independent approach,” where even if a
limited remedy fails of its essential purpose under UCC
§ 2‐719(2), an accompanying consequential damages dis‐
claimer is not necessarily “unconscionable” under UCC
§ 2‐719(3). The litigant must still prove procedural and
substantive unconscionability to invalidate a limitation on
consequential damages. Today, most state courts use the
independent approach, including states whose earlier adop‐
tions of the dependent approach were relied on by the Wis‐
consin Supreme Court in Murray. See, e.g., Razor v. Hyundai
Motor Am., 854 N.E.2d 607, 616–18 (Ill. 2006) (overturning
Adams, relied on in Murray); Rheem Mfg. Co. v. Phelps Heating
& Air Conditioning, Inc., 746 N.E.2d 941, 947–52 (Ind. 2001); see
also 1 WHITE, SUMMERS, & HILLMAN, UNIFORM COMMERCIAL
CODE § 13:22 (6th ed.) (endorsing the independent approach,
identifying it as the “majority view,” and citing dozens of
state and federal cases adopting it).
Walker argues this court should use the independent ap‐
proach when applying Wisconsin law. Walker claims
Murray’s discussion of § 402.719(2) and (3) was mere dicta
and that Wisconsin has never adopted the dependent
approach (or the independent approach).
Walker’s contention is contradicted by a series of cases
from Wisconsin and this court which have consistently held
that Murray adopted the dependent approach. See, e.g., Trinkle
v. Schumacher Co., 301 N.W.2d 255, 259 (Wis. 1980) (awarding
consequential damages when a limited warranty in a fabric
sales contract failed of its essential purpose); Phillips Petroleum
Co. v. Bucyrus‐Erie Co., 388 N.W.2d 584, 592 (Wis. 1986) (strik‐
8 No. 18‐1823
ing a remedy limitation from the contract and applying all or‐
dinary UCC remedies because of a violation of § 402.719(2));
see also Waukesha Foundry, Inc. v. Industrial Engineering, Inc., 91
F.3d 1002, 1010 (7th Cir. 1996) (“If a buyer demonstrates the
impotence of the contractually established remedy under sec‐
tion 2‐719(2), he may then avail himself of the remedies pro‐
vided elsewhere in the UCC.”); Fidelity & Deposit Co. of Md. v.
Krebs Engineers, 859 F.2d 501, 504 (7th Cir. 1988) (“Other
courts have given effect to consequential damages disclaim‐
ers even when exclusive remedies failed of their essential pur‐
poses. … But whatever the merit of Krebs’ argument as an
original matter, it is now Wisconsin law.”). Every case on
point we found in Wisconsin and from our court holds that
Murray affirmatively adopted the dependent approach.
Walker next argues if the Wisconsin Supreme Court were
to hear this case today, it would adopt the independent
approach, so we should overturn Murray on the state court’s
behalf. Walker suggests if we are hesitant to do so, we should
certify the question to that court.
Federal courts sitting in diversity can decide cases involv‐
ing unresolved issues of state law by predicting how the rele‐
vant state court would rule. See, e.g., Straits Financial LLC v.
Ten Sleep Cattle Co., 900 F.3d 359, 369 (7th Cir. 2018) (“[I]f a
question of law has not yet been decided by that court, we are
to make a prediction of how the Supreme Court of [the state]
would rule on it … .”) (internal quotation marks omitted). But
absent a conflict with the Constitution or a federal law, we
cannot overturn established state precedent. The so‐called
“Erie guess” is not an Erie veto.
Nor may we certify this question to the Wisconsin
Supreme Court to check if that court has changed its mind on
No. 18‐1823 9
§ 402.719. We certify a question to a state court only if “the
rules of the highest court of [the] state provide for certification
to that court … .” 7TH CIR. R. 52(a); see also In re Hernandez, No.
18‐1789, slip op. at 12 (7th Cir. Mar. 18, 2019) (applying Circuit
Rule 52(a)). The Wisconsin Supreme Court may answer only
certified questions “to which it appears to the certifying court
there is no controlling precedent in the decisions of the supreme
court and the court of appeals of this state.” Wis. Stat. § 821.01
(emphasis added). Here, the controlling precedent is Murray.
Because the Wisconsin Supreme Court would have no juris‐
diction to answer a certified question from this court on
§ 402.719, we have no authority to certify it under 7TH CIR. R.
52(a). If Wisconsin is to adopt the independent approach, its
own courts must do so.
III.
Typically, this would not end our inquiry, because we
would still need to examine whether the limited remedies
provision actually failed of its essential purpose under
§ 402.719(2). But here, Walker argued in its summary judg‐
ment brief that the distribution agreement gave Sanchelima
“no recoverable damages.” Defendants’ Brief in Support of Its
Motion for Partial Summary Judgment at 2, Sanchelima Int’l
Inc. v. Walker Stainless Equipment Co., No. 16‐cv‐00644‐jdp,
2018 WL 1401195 (W.D. Wis. Mar. 19, 2018), ECF No. 45. As
the district court stated in denying summary judgment,
“[t]his is exactly the type of limitation that § 402.719 renders
unenforceable.” Order Denying Motion for Partial Summary
Judgment at 6, Sanchelima, 2018 WL 1401195, ECF No. 66.
Though Walker later sought to reverse course in its motion
for reconsideration, claiming other damages were available
under the contract, the district court correctly noted that
10 No. 18‐1823
Walker “should have adduced this evidence and advanced
this argument in [its] summary judgment motion …” Order
Denying Motion for Reconsideration at 3, Sanchelima, 2018
WL 1401195, ECF No. 78. As such, the issue is waived. See
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d
1264, 1270 (7th Cir. 1996) (“Reconsideration is not an appro‐
priate forum for rehashing previously rejected arguments or
arguing matters that could have been heard during the pen‐
dency of the previous motion.”).
The district court correctly decided the only issue pre‐
sented in this appeal, so we AFFIRM its judgment.