COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-1151
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
FRANKIE B. HALL and
TRANSPORTATION
INSURANCE CO.,
Plaintiffs-Respondents,
v.
AMERICAN ALLIANCE
INSURANCE CO. and
PETROLEUM EQUIPMENT,
INC.,
Defendants-Appellants,
ABC INSURANCE CO.,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS P. DOHERTY, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. American Alliance Insurance Co., and its
insured, Petroleum Equipment, Inc., appeal from a judgment entered on a jury
verdict in favor of Frankie B. Hall.
American claims that the trial court erred because it did not instruct
the jury to reduce the damage award for future loss of earning capacity and
future medical expenses to present value.
Because the trial court did not erroneously exercise its discretion in
instructing the jury, we affirm.
I. BACKGROUND
This case arises out of
a personal injury action brought by Hall.
On April 30, 1990, Hall, while walking on a sidewalk, slipped and
fell, which resulted in a fractured ankle.
Petroleum Equipment was excavating a subterranean tank near the site of
the fall. Hall sued Petroleum Equipment
and its insurer, American, alleging negligence. At trial, the jury found Petroleum Equipment to be 59% causally
negligent and found Hall to be 41% causally negligent.
Hall's treating
physician, Dr. Charles Klein, provided expert testimony on the issue of future
medical expenses. Vocational expert
Daniel C. Kuemmel offered testimony on the issue of loss of future earning
capacity. At the jury instruction
conference, American requested that the jury be instructed on reducing future
damage awards to present value. The
trial court declined to instruct the jury on reduction of future damage awards
to present value because American did not introduce any evidence regarding
calculating present value. The jury
awarded future medical expenses of $10,000, and loss of future earnings in the
amount of $65,000.
American filed a
post-verdict motion for a new trial on the trial court's failure to charge the
jury with the present value instruction.
The trial court denied the motion, ruling that the instruction was not
warranted because American failed to introduce any evidence to support the
present value instruction. Judgment was
entered on the verdict. American now
appeals.
II. DISCUSSION
The trial court has wide
discretion in instructing a jury. Meurer
v. ITT Gen. Controls, 90 Wis.2d 438, 448, 280 N.W.2d 156, 162
(1979). We will not find an erroneous
exercise of that discretion if the trial court applied the proper law to the
relevant facts to reach a rational conclusion.
Village of Shorewood v. Steinberg, 174 Wis.2d 191, 204,
496 N.W.2d 57, 62 (1993).
The jury instruction on
reducing future losses to present value, requested by American, provides:
A
lump sum of money received today may be worth more than the same sum paid in
installments over a period of months or years.
This is because a sum received today can be invested and earn money at
current interest rates. By making a
reduction for the earning power of money, your answer will reflect the present
value in dollars of an award of future damages.
Wis J I—Civil 1796. American claims that the trial court is
required to give this instruction whenever a party requests it. The trial court disagreed, reasoning that
the instruction can only be given when the jury has been provided with evidence
to assist it in reducing future values to present worth. We agree.
The defendant has the
burden of producing evidence to show the fact-finder how to reduce future
losses to present value. Wingad v.
John Deere & Co., 187 Wis.2d 441, 452, 523 N.W.2d 274, 279 (Ct.
App. 1994). This court held in Wingad
that reducing future damages to present value prevents overcompensating plaintiffs,
but “[f]airness dictates ... that a defendant entitled to the present value
instruction should have the burden of presenting evidence to reap the benefit
of the instruction.” Id.
at 453, 523 N.W.2d at 279. To meet this
burden, a defendant may provide expert testimony or standard interest and
annuity tables to assist the trier of fact in calculating present value. Id. American failed to introduce any evidence to satisfy this burden
and, therefore, there was no basis in the record for giving this instruction. Accordingly, the trial court did not
erroneously exercise its discretion in refusing to charge the jury with the
present value instruction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.