PUBLISHED OPINION
Case No.: 94-1629
Complete Title
of Case:
MICHAEL R. PLATZ and
YVETTE PLATZ,
Plaintiffs-Appellants,
PRIMECARE HEALTH PLAN, INC.,
Plaintiff,
v.
UNITED STATES FIDELITY & GUARANTY
COMPANY,
Defendant-Respondent,
WINDSOR INSURANCE COMPANY,
KEVIN ENGEL, CINCINNATI INSURANCE
COMPANY and KEITH E. GRITT,
Defendants.
Submitted on Briefs: April 4, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: July 11, 1995
Opinion Filed: July
11, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: MICHAEL J. BARRON
so indicate)
JUDGES: Sullivan, Fine and Schudson, JJ.
Concurred: ---
Dissented: Fine, J.
Appellants
ATTORNEYSFor the plaintiffs-appellants the cause was submitted on
the briefs of Jeffrey A. Pitman and Laura M. Huegerich, of
Milwaukee.
Respondents
ATTORNEYSFor the defendants-respondents the cause was submitted
on the briefs of Peterson, Johnson & Murray, S.C., with Michael
P. Crooks, of Madison.
COURT OF APPEALS DECISION DATED AND RELEASED July
11, 1995 |
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. 94-1629
STATE OF WISCONSIN IN
COURT OF APPEALS
MICHAEL
R. PLATZ and
YVETTE
PLATZ,
Plaintiffs-Appellants,
PRIMECARE
HEALTH PLAN, INC.,
Plaintiff,
v.
UNITED
STATES FIDELITY & GUARANTY
COMPANY,
Defendant-Respondent,
WINDSOR
INSURANCE COMPANY,
KEVIN
ENGEL, CINCINNATI INSURANCE
COMPANY
and KEITH E. GRITT,
Defendants.
APPEAL
from an order of the circuit court for Milwaukee County: MICHAEL J. BARRON, Judge. Reversed.
Before
Sullivan, Fine and Schudson, JJ.
SCHUDSON,
J. Michael and Yvette Platz appeal from
the trial court order changing the jury's answers regarding whether an
unidentified hit-and-run driver caused a collision with their car, and
dismissing their action for damages resulting from the accident. We agree with their contention that credible
evidence supported the jury's verdicts and, therefore, we reverse.
Michael
Platz was one of many drivers involved in a multi-car collision that occurred
during sudden, slippery, white-out conditions on February 11, 1990, on
Interstate 894. Yvette Platz, his wife,
was a passenger. The Platzes sued the
drivers of two other cars and United States Fidelity & Guaranty Company,
the insurer through which the Platzes had a policy providing uninsured motorist
coverage, for an accident with “a hit and run vehicle whose operator or owner
cannot be identified.” This appeal
involves only the Platzes' action against USF&G.
The
Platzes' car was struck by what Mr. Platz thought was a blue truck driven by
Keith Gritt. In the chaos that
followed, however, there was much confusion and, at trial, the evidence did not
support Mr. Platz's identification of Mr. Gritt's blue truck as the vehicle
that struck his car, and no evidence conclusively established the identity of
either the driver or the vehicle that struck the Platzes' car. Although many motorists were involved in the
collisions, many others, apparently more careful, lucky, or both, were able to
avoid colliding with others. The
Platzes' action ultimately depended on circumstantial evidence to support their
theory that some unidentified driver struck their car and left the scene.
At
the close of plaintiffs' case, USF&G moved for dismissal, arguing that
there was no evidence of negligence by any unidentified driver, and no evidence
that the driver whose car struck the Platzes' car had “run.” The trial court denied the motion,
summarizing the mixed evidence regarding the identity of the vehicle and noting
“then the only alternative is an unidentified vehicle.” Further, the trial court noted, “With the
conditions that existed at the time and place in question, there would be a
jury question [whether the striking vehicle was] driving too fast for
conditions .... It's a jury question as
to whether this unidentified vehicle either was negligent, whether that
negligence caused the striking ... and whether it ‘ran’ from the scene.”
The
trial thus proceeded and, at its conclusion, the trial court submitted special
verdict questions including:
THIRD
QUESTION: At and just before the
accident ... was an unidentified hit and run driver negligent in the manner in
which he or she operated his or her motor vehicle?
FOURTH
QUESTION: If you answer Question No. 3
“Yes”, then answer this question:
Was such negligence a cause of an accident with ...
Platz?
The jury answered both questions “yes” and awarded
$15,943 damages to the Platzes.
Deciding
the motions after verdict, however, the trial court changed the answers on
these two questions from “yes” to “no,” explaining:
There's no question that there was a hit
here. The real question is whether there
was a run and whether or not there's any evidence of negligence on an
unidentified driver.
And I have to come to the conclusion now that
there was not on either of those. It
was a bizarre case to say the least with—I don't know anywhere from 12 or 15 or
19 cars. I heard I think some testimony
as high as 50 cars that were not necessarily all bumped but were at least
involved on the freeway on the day in question.
There's also no question that not only [Mr.
Platz] but also some other people were able to control their cars in this
whiteout situation to where they provided no collision to anybody else.
There was also testimony about I think one or
two cars that hit Mr. Platz that are also unidentified which, of course, is not
part of the deciding issues here today nor were they at the trial.
The only thing that was important from those
car's [sic] standpoint is that they tipped Mr. Platz's car off to the left to a
situation where instead of getting hit in the rear he got hit on the side.
....
It's unfortunate that we have a situation where
there's no question that Mr. Platz was hit by somebody, but the problem I have
contrary to what I might have said at trial there is really no evidence of any
negligence on anybody.
We do not know whether or not that car that hit
Mr. Platz was pushed by somebody other than by that unidentified driver's
negligence. You could infer that there
was negligence because I indicated as to why I decided the motion at the time
of the trial, but that's pure speculation.
You could just as well infer that somebody else
hit the unidentified driver pushing that unidentified driver into Mr. Platz.
You have only unfortunately one deputy sheriff
who was overwhelmed in his attempt to get information; that is, Deputy Spain at
the scene.
We don't know what happened to this
unidentified driver whether they [sic] remained at the scene and then left.
We do know that Mr. Platz shortly after he got
hit took his car off the freeway maybe for safety purposes so he wouldn't get
hit again—off on the Greenfield ramp.
The problem we have with him attempting to act
with diligence in getting his car off the freeway and onto the ramp is that it
didn't provide any opportunity for any unidentified driver to give his name or
her name to Mr. Platz to let them know that they hit him. We don't know what happened to that car,
whether they remained at the scene or didn't remain at the scene.
There's no evidence one way or the other on
it. So what you have here is a failure
on the part of Platz to show the run portion of the hit and run.
....
The problem I have
is that there's no evidence of somebody running. It's all by inference, and there's no concrete evidence to show a
run one way or the other.
As
we recently explained, “[i]f there is credible evidence to sustain the
verdict,” the verdict must stand. Macherey
v. Home Ins. Co., 184 Wis.2d 1, 7-8, 516 N.W.2d 434, 436 (Ct. App.
1994). “Only in the rare case, where the facts are undisputed and the required
verdict is absolutely clear, should the trial court reverse the jury's
conclusion.” Id. at 8,
516 N.W.2d at 436. Further, of
particular significance for our review of this case, we explained that “[w]hen
... more than one reasonable inference may be drawn from the evidence at trial,
this court must accept the inference drawn by the jury.” Id. (emphasis added).[1]
The
trial court's explanation for its decision to change the answers reveals its
error. The trial court explicitly
acknowledged that evidence supported an inference that another driver was
negligent in striking the Platzes' car, and also that evidence supported an
inference that the unidentified driver then “ran” from the scene. The trial court concluded, however, given
the considerable factual uncertainties, the evidence also supported the
opposite inferences so that the verdicts could not stand.
The
trial court erred as a matter of law.
The fact that the evidence just as strongly supported inferences
opposite those reached by the jury does not permit the trial court to change
the jury's answers. Indeed, as long as
credible evidence supports a verdict, “even though it be contradicted and the
contradictory evidence be stronger and more convincing, nevertheless the
verdict of th[e] jury must stand.” Id.
at 7-8, 516 N.W.2d at 436 (citations omitted).
The
trial record in this case provides essentially undisputed, credible evidence
from which the jury could reasonably infer that an unidentified motorist was
driving too fast for the conditions; that the driver struck the Platzes' car;
and that although the driver could have remained at the scene to identify
himself or herself despite the fact that Mr. Platz had pulled off the freeway
and on to a ramp for safety, that the unidentified driver did not do so. Although we agree that other inferences also
could have been drawn from the evidence, credible evidence supported the jury's
inferences and answers and, therefore, the verdicts must be reinstated.
By
the Court.—Order reversed.
No. 94-1629(D)
FINE,
J. (dissenting). For the reasons
I explained in my dissent in Macherey v. Home Ins. Co., 184
Wis.2d 1, 17–19, 516 N.W.2d 434, 440–441 (Ct. App. 1994), the majority has
applied the wrong standard of review.[2] I cannot conclude that the trial court was
“clearly wrong” when it changed the jury's answers. Indeed, as the trial court indicated, those answers rested on
speculation, not evidence. Accordingly,
they cannot stand. See Merco
Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis.2d 455, 460, 267
N.W.2d 652, 655 (1978) (verdict may not rest on speculation). I would affirm.
[1] Dissenting in Macherey v. Home Ins. Co.,
184 Wis.2d 1, 516 N.W.2d 434 (Ct. App. 1994), Judge Fine relied on Helmbrecht
v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W.2d 118 (1985), in support
of the “clearly wrong” standard. Helmbrecht,
however, sends mixed messages. First,
citing § 805.14, Stats., Helmbrecht
reiterated the “no credible evidence” standard and further emphasized that the
“no credible evidence” standard “‘applies to both the trial court on a motion
after verdict and to this court on appeal.’”
Id. at 109-110, 362 N.W.2d at 127 (citations
omitted). Next, quoting Olfe v.
Gordon, 93 Wis.2d 173, 286 N.W.2d 573 (1980), Helmbrecht
invoked the “clearly wrong” standard but also quoted authorities talking in
terms of whether “there is or is not sufficient evidence upon a given question to
take the case to the jury.” Helmbrecht,
122 Wis.2d at 110, 362 N.W.2d at 127 (emphasis added; citations omitted). Moreover, Helmbrecht went on
to apply the “no credible evidence” standard in resolving several issues on
appeal but, in one instance, added that the trial court decision also
was “clearly wrong.” See id.
at 118, 362 N.W.2d at 131. Thus, Helmbrecht
contributed to the confusion on this issue.
In
resolving this issue in favor of the “no credible evidence” standard, Macherey
preserved the distinction between a trial court's determination of whether
there is “credible evidence” to submit to a jury (where, as Helmbrecht
perhaps implied, we defer to the trial court's “superior advantages for judging
of the weight of the testimony and its relevancy and effect,” Helmbrecht,
122 Wis.2d at 110, 362 N.W.2d at 127 (citations and inner quotations omitted)),
and a trial court's decision on whether to overrule a jury's decision
(where we, like the trial court, must defer to the jury's evaluation of
credibility of witnesses and weight of evidence).
[2] Although a published decision of the court of
appeals is binding on us, § 727.41(2), Stats.,
it cannot trump applicable supreme court precedent. In my view, the majority decision in Macherey does
precisely that. Accordingly, I am bound
not by Macherey but by the long, unbroken line of supreme-court
precedent I cited in my Macherey dissent.