PUBLISHED OPINION
Case No.: 95-3295
Complete Title
of Case:
MARY H. STAEHLER,
Plaintiff-Appellant,
BLUE CROSS & BLUE
SHIELD
UNITED OF WISCONSIN,
Plaintiff,
v.
JENNIFER L. BEUTHIN and
ECONOMY PREFERRED
INSURANCE COMPANY,
Defendants-Respondents.
Submitted on Briefs: October 15, 1996
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 27, 1996
Opinion Filed: November
27, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If
"Special", JUDGE: HENRY B. BUSLEE
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Charles W. Averbeck of Averbeck &
Hammer, S.C. of Fond du Lac.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of David G. Dudas of McCanna, Konz, Dudas
& Associates, S.C. of Appleton.
COURT OF
APPEALS DECISION DATED AND
RELEASED NOVEMBER
27, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3295
STATE OF WISCONSIN IN
COURT OF APPEALS
MARY
H. STAEHLER,
Plaintiff-Appellant,
BLUE CROSS & BLUE SHIELD
UNITED OF WISCONSIN,
Plaintiff,
v.
JENNIFER
L. BEUTHIN and
ECONOMY
PREFERRED
INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Fond du Lac County: HENRY B. BUSLEE, Judge. Affirmed and cause remanded with
directions.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. Mary
H. Staehler appeals from a jury verdict finding her fifty percent causally
negligent, awarding medical expenses of $2989.67 and awarding no damages for
past or future pain and suffering. On
appeal, Staehler argues that the apportionment of negligence and the denial of
damages for pain and suffering are not supported by the evidence; the medical
expense award is perverse and the jury failed to follow instructions; and, the
taxation of costs was in error because the defendants' offer of judgment was
invalid. Because the jury is the
arbiter of credibility and the evidence supports the verdict apportioning
causal negligence, reducing medical expenses and denying pain and suffering, we
affirm. We further conclude that when a
defendant offers a settlement to the principal plaintiff with the condition
that the plaintiff also indemnify any existing related subrogated claim, the
plaintiff can properly evaluate the offer and it is therefore valid. Accordingly, we affirm the judgment.
Staehler
was involved in an automobile accident with the defendant, Jennifer L. Beuthin.[1] Staehler was traveling in a southerly
direction on Pioneer Road approaching the intersection at Military Road in Fond
du Lac, Wisconsin. Beuthin was driving
in the opposite direction on Pioneer Road.
At the intersection, Beuthin collided with Staehler’s automobile while
making a left turn onto Military Road.
As a result of the accident, Staehler suffered various injuries, the
most serious of which was an alleged back injury, as well as a concussion,
multiple abrasions and contusions.
Staehler
filed a personal injury action against Beuthin for damages she allegedly
sustained in the accident. The case was
tried to a jury and the jury returned a verdict apportioning fifty percent
causal negligence to Staehler, awarding $2989.67 in medical expenses and
awarding nothing for pain and suffering.
The trial court entered judgment on the verdict. Staehler filed motions after verdict
requesting a new trial on the issue of damages based on the “perverse” jury
verdict or, in the alternative, an additur on the items of damages. The trial court denied Staehler’s motions
and found that Staehler was “entitled to recover the sum of $1494.83 on the
Verdict” and pursuant to § 807.01(1), Stats.,[2]
the defendants were “entitled to recover statutory costs in the amount of
$3457.98.” Judgment was entered on
October 24, 1995, in favor of Beuthin and her insurer, Economy Preferred
Insurance Company (collectively, Beuthin) in the amount of $1963.15, plus
statutory interest at a rate of twelve percent per annum.[3] Staehler appeals. Additional facts will be included within the body of the decision
as necessary.
On
appeal, Staehler contends that there is insufficient evidence to support the
jury’s verdict. Our standard of review
of a jury’s verdict is severely circumscribed.
We must affirm the jury’s verdict “if there is any credible evidence to
support [it].” Fehring v.
Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984), overruled
on other grounds by DeChant v. Monarch Life Ins. Co, 200 Wis.2d 559,
576-77, 547 N.W.2d 592, 598-99 (1996).
When the verdict has the trial court’s approval, this is even more
true. Id. Our task is not to search the record for
evidence contrary to the jury’s verdict; rather, we must search the record for
credible evidence in support of the verdict, accepting any reasonable
inferences favorable to the verdict that the jury could have drawn from that
evidence. Id. at 305-06,
347 N.W.2d at 598.
Causal
Negligence
Staehler
first argues that there is no evidence in this record to support a finding that
she was operating her car negligently at or just before the time of the
accident. Staehler maintains that the
jury’s allocation of negligence, fifty percent to Staehler and fifty percent to
Beuthin, renders the verdict perverse.
We disagree.
The
comparison and apportionment of causal negligence are peculiarly within the
province of the jury. White v.
Leeder, 149 Wis.2d 948, 959, 440 N.W.2d 557, 561 (1989). We will uphold the jury's finding if there
is any credible evidence to support it.
Frayer v. Lovell, 190 Wis.2d 794, 810, 529 N.W.2d 236, 243
(Ct. App. 1995). Matters of weight and
credibility are left to the jury, and where more than one reasonable inference
can be drawn from the evidence, we must accept the inference drawn by the
jury. Id.
Staehler
asserts that the verdict is not sustainable because the evidence establishes
that at the time of the accident she was in her proper lane traveling at
approximately ten to fifteen miles per hour.
Staehler persists that Beuthin failed to yield the right of way and made
a left-hand turn in front of her, causing a nearly head-on collision. Based on this evidence, Staehler argues that
the jury’s finding of causal negligence cannot be sustained. We are unpersuaded.
This
case involves comparing Staehler’s negligence in failing to maintain a proper
lookout with Beuthin’s negligence in making a left-hand turn. Staehler testified that at the time of the
accident, 4:30 p.m, the weather was dark, dreary, cloudy and rainy. Staehler further testified that she could
not recall whether her headlights were on, how fast she was going, whether she
slowed down as she approached the intersection, where she was looking as she
approached the intersection, whether she was distracted, or whether she applied
her brakes, swerved or took any evasive action. Beuthin testified that a few cars turned in front of her, she
double checked that no traffic was coming, started to make her left-hand turn,
moved forward one foot, and that is when the collision occurred. Beuthin also testified that her headlights
and left turn signal were on, but she failed to see Staehler’s car.
In
addition, expert testimony was presented which indicated that the angle of
impact was approximately forty degrees.
The reconstruction expert also theorized that if the vehicles came to a
stop approximately at impact, then each vehicle was moving in the range of ten
to fifteen miles per hour. This opinion
was based on the officer’s diagram of the vehicles and Beuthin’s testimony that
her vehicle skidded sideways about two feet.
However, the investigating police officer testified that the drawing on
the accident report was very basic and very rough.
Therefore,
we conclude that there is credible evidence from which the jury could have
determined that both Staehler and Beuthin failed to use ordinary care to avoid
the accident, and both were equally at fault for the accident. Because we must view the evidence in the
light most favorable to the verdict, we decline to second-guess the jury’s
apportionment of negligence. See
Brain v. Mann, 129 Wis.2d 447, 454-55, 385 N.W.2d 227, 231 (Ct.
App. 1986). Accordingly, we affirm this
portion of the jury verdict.
Medical
Expenses
Next,
Staehler contends that the jury improperly reduced her medical award. She theorizes that after subtracting the
chiropractic bills, the jury divided the remaining medical expenses in half to
conform with its finding that she was fifty percent causally negligent in
violation of the jury instructions. The
trial court instructed the jury that “[i]n answering the damage question, you
will disregard completely any percentages which you may have inserted in your
answers to the subdivisions of the comparative negligence question.” See Wis.
J I—Civil 1700. The trial court
also informed the jury that they were “the sole judges of the credibility of
the witnesses and the weight to be given to their testimony;” “the burden rests
on each person claiming damages to convince you by the greater weight of the
credible evidence to a reasonable certainty that such person has sustained the
damages;” and in each instance, the amount must “fairly and justly compensate the
person named in the question for the damages sustained as a natural consequence
of the action, or the accident.” See
Wis J I—Civil 215; Wis J I—Civil 1705.
Staehler
maintains that “[t]he jury’s clear failure to follow the instruction of the
court renders the verdict perverse and requires that a new trial be granted on
the issue of damages in the interest of justice ¼.” A verdict is
perverse when the jury clearly refuses to follow the direction or instructions
of the trial court upon a point of law.
Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis.2d 804,
820, 416 N.W.2d 906, 913 (Ct. App. 1987).
Staehler points out that the total medical expenses of $7634.76 less the
chiropractic bills of $1655.42 equals $5979.34 in remaining medical
expenses. Under Staehler’s theory, the
jury simply reduced the remaining medical bills by fifty percent for her
contributory negligence ($5979.34 x 50% = $2989.67).
However,
under the perverse verdict test, Staehler’s challenge clearly fails. Staehler points to nothing in the record to
support her argument that the jury refused to follow the direction or
instructions of the trial court. As
noted by the trial court in motions after verdict, the case boiled down to the
question of Staehler’s credibility which was challenged throughout the
trial. On Staehler’s cross-examination,
the jury learned that she was not truthful with her physicians in revealing her
health history and activity level; she admitted to swearing falsely in her
deposition and written interrogatories; and she was evasive in her recollection
of the accident, the nature of her injuries, and the related treatment. And despite her protestations of constant
pain and discomfort, Staehler could not explain why she only sought sporadic
medical treatment.
The
jurors were informed that they were the sole judges of credibility of the
witnesses and the weight to be given to their testimony. See Wis
J I—Civil 215. We must assume
the jury followed the instructions. Nowatske
v. Osterloh, 198 Wis.2d 419, 448, 543 N.W.2d 265, 276 (1996). Where more than one reasonable inference can
be drawn from the evidence, this court must accept the inference drawn by the
jury. See Foseid v. State
Bank of Cross Plains, 197 Wis.2d 772, 782, 541 N.W.2d 203, 207 (Ct.
App. 1995). The jury presumably
disbelieved Staehler’s complaints of low back pain and adjusted the medical
bills accordingly. The evidence
supports this inference, and we therefore affirm this portion of the jury
verdict.
Pain and Suffering
Staehler
further argues that because the jury found liability for her physical injuries,
the jury’s failure to award anything for pain and suffering “leads inescapably
to the conclusion that justice has miscarried in this case.” Staehler maintains that based on the
evidence and under “the rule” of Schulze v. Kleeber, 10 Wis.2d
540, 103 N.W.2d 560 (1960),[4]
the jury’s verdict cannot be allowed to stand.
We are unpersuaded.
It
is well established that an appellate court will not overturn a jury’s verdict
if there is any credible evidence to support it. D.L. v. Huebner, 110 Wis.2d 581, 634, 329 N.W.2d
890, 914 (1983). When the jury has
answered liability questions unfavorably to the plaintiff, which findings are
supported by credible evidence, the granting of inadequate damages to the
plaintiff does not necessarily show prejudice or render the verdict
perverse. See Smith v. St.
Paul Fire & Marine Ins. Co., 56 Wis.2d 752, 759, 203 N.W.2d 34, 38
(1973). “In most cases where there are
medical bills and loss of services, pain and suffering exist; but we cannot say
as a matter of law that [this] is necessarily true in every case ¼.” Dickman v. Schaeffer, 10
Wis.2d 610, 616, 103 N.W.2d 922, 926 (1960); Jahnke v. Smith, 56
Wis.2d 642, 653, 203 N.W.2d 67, 73 (1973).
An
assessment of the evidence supports the jury’s disregard for Staehler’s claim
for pain and suffering. While Staehler
presented evidence supporting these damage claims, the evidence was largely
subjective and the true issue was the credibility of her claim as to the extent
of her injuries from this accident.
There was an abundance of evidence and competing inferences presented on
both sides of this claim which we will not elaborate on. However, our reading of the record reveals a
significant jury question as to whether Staehler’s claims legitimately related
to this accident or were the product of prior medical problems, fabrication or
exaggeration.[5]
A
verdict is not inconsistent because it allows damages for medical expenses but
denies recovery for personal injuries or pain and suffering. Jahnke, 56 Wis.2d at 653, 203
N.W.2d at 73. In Jahnke,
the supreme court concluded that based on the evidence, the jury may have
determined that the plaintiff’s injuries were de minimis or nonexistent. Id. Here, the jury may well have concluded that Staehler’s alleged
pain and suffering were not related to her injuries from the accident but
rather to other causes. Again, this issue
boiled down to the jury’s assessment of Staehler’s credibility and the jury was
not obligated to find Staehler’s testimony credible regarding pain and
suffering. What pain, if any, Staehler
suffered, the jury could consider was not sufficient to be compensated with
money. See Dickman,
10 Wis.2d at 617, 103 N.W.2d at 926. We
conclude that the jury verdict was not inconsistent or perverse and is
supported by the evidence.
Validity of Offer
of Judgment
Staehler’s
final argument is that Beuthin’s offer of judgment did not meet the
requirements of § 807.01(1), Stats.,
because it contained only one offer to Staehler and her subrogated insurer,
Blue Cross & Blue Shield United of Wisconsin (Blue Cross). Beuthin offered $25,000 plus statutory costs
with the condition that Staehler “indemnify or otherwise satisfy any existing
related subrogated claims.” Staehler
contends that she was unable to evaluate what was being offered to her. We disagree.
The
application of § 807.01(1), Stats.,
to the facts of this case presents a question of law which we decide without
deference to the trial court’s determination.
Ritt v. Dental Care Assocs., S.C., 199 Wis.2d 48, 75, 543
N.W.2d 852, 862 (Ct. App. 1995).
Section 807.01(1) provides:
After issue is joined but at least 20 days before the
trial, the defendant may serve upon the plaintiff a written offer to allow
judgment to be taken against the defendant for the sum, or property, or to the
effect therein specified, with costs. ¼ If notice of acceptance is not given, the offer cannot
be given as evidence nor mentioned on the trial. If the offer of judgment is
not accepted and the plaintiff fails to recover a more favorable judgment, the
plaintiff shall not recover costs but defendant shall recover costs to be
computed on the demand of the complaint.
The
validity of an offer of settlement under § 807.01, Stats., depends on whether it allows the offeree to fully and
fairly evaluate the offer from his or her own perspective. Testa v. Farmers Ins. Exch.,
164 Wis.2d 296, 302, 474 N.W.2d 776, 779 (Ct. App. 1991). It is the obligation of the party making the
offer to do so in clear and unambiguous terms, with any ambiguity in the offer
being construed against the drafter. See
Stan’s Lumber, Inc. v. Fleming, 196 Wis.2d 554, 576, 538 N.W.2d
849, 858 (Ct. App. 1995).
The
courts have addressed the validity of various offers of settlement. We have held that a joint offer of judgment
by defendants, who were jointly and severally liable, to a single plaintiff was
valid. See Denil v.
Integrity Mut. Ins. Co., 135 Wis.2d 373, 380-82, 401 N.W.2d 13, 16-17
(Ct. App. 1986). Similarly, where
multiple defendant tortfeasors, who were jointly and severally liable to a
plaintiff, were covered by the same insurance policy and the offer was within
the insurance policy’s limits, a single offer of an aggregate sum was a valid
offer. See Testa,
164 Wis.2d at 303, 474 N.W.2d at 779.
We
have also addressed this issue in the context of multiple defendant tortfeasors
and a subrogated defendant, who provided payments for medical expenses. See Ritt, 199 Wis.2d at
74, 543 N.W.2d at 862. In Ritt,
we held that where an offer of settlement is made from a single plaintiff to
multiple defendants and a subrogated insurer, the offer is invalid if it does
not indicate the sum includes the subrogated claim. See id. at 78, 543 N.W.2d at 864. To avoid ambiguity, the offer must indicate
whether the subrogated claim would be satisfied from the settlement
proceeds. See id.
Here,
the offer specifically provided that the settlement proceeds be used to
“satisfy any existing related subrogated claims.” It is undisputed that Blue Cross was joined as a plaintiff in the
action based on its subrogated interest in medical payments made on behalf of
Staehler. The maximum amount of the
subrogated interest was known to Staehler.
Contrary to Staehler’s contention, Beuthin’s offer was valid because it
did require Staehler to satisfy her own claim and that of Blue Cross out of the
money offered. As reasoned by the trial
court, Staehler “was well aware of the subrogee's expenses, and costs, and
could very easily have determined during and within the statutory period of
time whether or not that offer of judgment was adequate and they could make an
intelligent and decisive determination on whether to accept that ¼.” We agree that Staehler could fully and
fairly evaluate the offer. We therefore
conclude that the offer invoked the provisions of § 807.01(1), Stats., entitling Beuthin to taxable
costs.
Nevertheless,
Staehler likens her situation to that of the defendants in Wilber v.
Fuchs, 158 Wis.2d 158, 461 N.W.2d 803 (Ct. App. 1990). In Wilber, all five individual
defendants, each represented by different insurers and alleged to be negligent
in different ways, were confronted with an offer of settlement which provided
one aggregate settlement figure for all the claims relating to the
incident. Id. at 163-64,
461 N.W.2d at 805. The court reasoned
that “[a] defendant who spurns an offer of settlement should pay the sanctions
of the statute when he or she errs in evaluating the claim against himself or
herself—not others.” Id.
at 164, 461 N.W.2d at 805. Because the
offer did not permit each defendant to individually evaluate the offer from the
perspective of that defendant’s assessment of his or her own liability, the
offer was held to be invalid. Id.
Staehler
maintains that like the Wilber defendants, she also is unable to
discern how much she is being offered because the offer “requires her to pay
the claim of the other plaintiff in the case and to also pay the claim of any
subrogated person who might not be in the case.” This argument has no merit.
We first note that Beuthin’s offer provided that the settlement proceeds
be used to satisfy any existing related subrogated claims, not the claim
of any subrogated person who might not be in the case. It is undisputed that Blue Cross was the
only existing and related subrogated party.
In
addition, the cases are factually distinguishable. In Wilber, the multiple defendants were
adverse—each was alleged to be negligent in a different way and punitive
damages were alleged against some, but not all. Id. at 163-64, 461 N.W.2d at 805. Accordingly, the concern of the Wilber
court was that a single aggregate offer of settlement to multiple adverse
defendants would “unreasonably force” each defendant to evaluate not only the
claim against himself or herself, but the other defendants as well. Id. at 164, 461 N.W.2d at 805.
This
situation would not manifest itself in the case at bar. Here, Staehler and Blue Cross are not
adverse to each other. Moreover, unlike
the defendants in Wilber, the value of Beuthin’s offer was
clear. Beuthin offered $25,000 less
Blue Cross’ subrogated claim. In
essence, Staehler could receive a minimum of $17,365.24, or she could receive
more, depending on her negotiations with Blue Cross. As evidenced by Beuthin’s answers and offer of judgment, Staehler
was put on notice that her right to damages was in dispute. Staehler requested $35,000 for past pain and
suffering and $110,000 for future pain and suffering. Thus, she was fully able to evaluate the probability of success
on her claims and whether she would receive a judgment surpassing that offered
by Beuthin. For these reasons, we
conclude that the offer invoked the provisions of § 807.01(1), Stats., entitling Beuthin to taxable
costs.
By
the Court.—Judgment affirmed
and cause remanded with directions.
[1] Beuthin has
since married. To maintain uniformity,
we will continue to refer to her maiden name.
[2] The order for
judgment incorrectly refers to § 807.01(2), Stats. Upon remand,
the order shall be amended to reflect the appropriate subsection,
§ 807.01(1), Stats.
[3] The jury verdict
was entered on July 28, 1995.
Staehler’s motions after verdict were denied and judgment was first
entered by the trial court on August 31, 1995.
Thereafter, Beuthin submitted a bill of costs to which Staehler
objected. Both parties then filed
contravening motions relating to the taxation of costs. The trial court denied Staehler’s motion,
granted Beuthin’s motion for costs and entered a second judgment on October 24,
1995. The parties stipulated to vacate
the original judgment dated August 31, 1995, leaving the October 24, 1995,
judgment in full force and effect.
[4] We take issue
with the fact that Staehler quoted Schulze out of context in her
brief-in-chief. The Schulze
court concluded that the verdict was not perverse. In fact, the court stated, “It has been held that a jury’s
violation of instructions by not answering damage questions in a verdict where
they have answered other questions so as to determine that there is no
liability does not compel a trial court to treat the verdict as perverse.” Schulze v. Kleeber, 10 Wis.2d
540, 544-45, 103 N.W.2d 560, 563 (1960) (quoted source omitted); see also
Dickman v. Schaeffer, 10 Wis.2d 610, 616, 103 N.W.2d 922, 926
(1960). Obviously, Schulze
does not provide the support that Staehler had wished.
[5] Only by way of
example, and without intending to be exhaustive, we note: Staehler made no complaint of lower back
pain until two weeks following the accident; she had experienced problems with
her low back prior to the accident, but failed to notify her treating
physicians; she did tell her physicians (and the jury) that she was knocked
unconscious and had no recollection of the accident until she came to in the
emergency room, yet Dr. Meress, the emergency room physician, described her as
“alert, oriented, and answering appropriately 9/10 questions;” and she
continued to play softball in 1992 and 1993, and she continued after the
accident, and to this day, to play volleyball in both winter and summer
leagues.