Pennell v. Am. Family Mut. Ins. Co.

392 Wis.2d 219

943 N.W.2d 892

2020 WI App 27

Monica R. PENNELL, Plaintiff-Appellant,

Cancer Treatment Centers of America, Employee Benefit Plan and UnitedHealthcare of Wisconsin, Inc., Involuntary-Plaintiffs,

v.AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I. and Carmella Covelli, Defendants-Respondents.

Appeal No. 2019AP170

Court of Appeals of Wisconsin.

Submitted on Briefs January 9, 2020

DATED AND FILED April 15, 2020

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Andrew S. Wier and Jesse B. Blocker of Habush, Habush & Rottier, S.C., Racine.

On behalf of the defendants-respondent, the cause was submitted on the brief of Janes C. Ratzel of Ratzel, Pytlik & Pezze, LLC, Brrokfield.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

REILLY, P.J.

¶1 Monica R. Pennell was injured in an automobile accident. Pennell appeals from a money judgment entered in her favor against American Family Mutual Insurance Company, S.I. and Carmella Covelli. Pennell argues the circuit court erred in refusing to instruct the jury as to whether Covelli’s negligence was "a cause" of her injuries ( WIS JI— CIVIL 1500) and erred in refusing to instruct the jury on "aggravation or activation" of a pre-existing condition ( WIS JI— CIVIL 1720). We agree with Pennell and reverse and remand for a new trial.

Facts

¶2 At trial, the parties disputed whose negligence caused the accident and whether Covelli’s negligence was a cause of Pennell’s injuries.¹ Pennell suffered from headaches prior to the accident. Pennell’s expert testified that Pennell’s pre-accident headaches were made worse by the accident and also that the treatment for the post-accident headaches exacerbated the pre-existing migraines. Pennell’s expert testified that Pennell’s current diagnosis of occipital neuralgia² was "a permanent condition" and she was receiving treatment (injections in the neck ) because of injuries she sustained in the accident at issue in this case. American Family countered with their expert opining that Pennell’s headaches were the result of a previous car accident, and while Pennell may have suffered a minor neck injury in the May 23, 2014 accident, any injuries she suffered were resolved within a few months.

¶3 At the instruction conference Pennell requested jury instructions WIS JI— CIVIL 1500 (addressing both accident and injury causation) and WIS JI— CIVIL 1720 (addressing aggravation or activation of pre-existing conditions). The circuit court denied both of Pennell’s requests.³ As to "cause," the court instructed only as to Pennell’s negligence as a cause of the accident , i.e., the court refused to instruct the jury that they needed to decide whether Covelli's negligence was "a cause" of Pennell’s injuries.

¶4 Pennell asked the jury for $45,271.10 in past medical expenses, $150,000 in future medical expenses, $510 for past wage loss, $45,000 for past pain and suffering, and $53,100 for future pain and suffering. American Family countered that Pennell should be awarded only a portion of her past medicals and past pain and suffering and argued that Pennell was not entitled to any future medical expenses or future pain and suffering damages. The jury awarded $23,711.36 for past medical expenses, $17,750 for past pain and suffering, and $510 for past wage loss. The jury did not award any future medical expenses or future pain and suffering.⁴ Pennell moved for a new trial after the verdict, arguing that the circuit court erred in failing to give WIS JI— CIVIL 1500 as requested and refusing to give WIS JI— CIVIL 1720. The circuit court denied the motion.

Standard of Review

¶5 "The purpose of a jury instruction is to fully and fairly inform the jury of a rule or principle of law applicable to a particular case." Nommensen v. American Cont'l Ins. Co. , 2001 WI 112, ¶36, 246 Wis. 2d 132, 629 N.W.2d 301. "The correctness of the jury instruction affects the validity of a jury’s verdict." Kochanski v. Speedway SuperAmerica, LLC , 2014 WI 72, ¶11, 356 Wis. 2d 1, 850 N.W.2d 160. Instructions are meant to "explain what the law means to persons who usually do not possess law degrees." Nommensen , 246 Wis. 2d 132, ¶36, 629 N.W.2d 301 (citation omitted). Whether a circuit court erred by stating the law incorrectly or in a misleading manner is a question of law we review de novo. Smith v. Goshaw , 2019 WI App 23, ¶9, 387 Wis. 2d 620, 928 N.W.2d 619.

¶6 "A challenge to an allegedly erroneous jury instruction warrants reversal and a new trial only if the error was prejudicial." Fischer v. Ganju , 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992). "An error is prejudicial when it probably misled the jury. Put another way, ‘an error relating to the giving or refusing to give an instruction is not prejudicial if it appears that the result would not be different had the error not occurred.’ " Kochanski , 356 Wis. 2d 1, ¶11, 850 N.W.2d 160 (citation omitted); see also Dakter v. Cavallino , 2015 WI 67, ¶105, 363 Wis. 2d 738, 866 N.W.2d 656 (Roggensack, C.J., concurring); Fischer , 168 Wis. 2d at 850, 485 N.W.2d 10 ; Goshaw , 387 Wis. 2d 620, ¶19, 928 N.W.2d 619.

Jury Instruction 1500: Causation

¶7 Four elements must be present in order to sustain a cause of action for negligence in Wisconsin: "(1) a duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury ; and (4) an actual loss or damage as a result of the injury." Nieuwendorp v. American Family Ins. Co. , 191 Wis. 2d 462, 475, 529 N.W.2d 594 (1995) (emphasis added). "The test of cause in Wisconsin is whether the defendant’s negligence was a substantial factor in producing the injury." Clark v. Leisure Vehicles, Inc. , 96 Wis. 2d 607, 617, 292 N.W.2d 630 (1980). Wisconsin law recognizes that there may be multiple "causes" of an injury:

The form of the special verdict question should refer to "a cause" or "a substantial factor" so that the jury will consider the verdict in accordance with the jury instructions, which instruct the jury that there may be more than one cause of the injury. The question should never refer to "the cause," because the negligence of several parties or other factors may jointly cause the injury. To inquire about "the cause" is to contradict the definition of causation and the instructions to the jury.

Id. at 618, 292 N.W.2d 630 (footnotes omitted).

¶8 Pennell requested that the circuit court give WIS JI— CIVIL 1500, with language addressing both a cause of the "accident" and a cause of the "injury." As this case involved disputes as to whose negligence was a cause of the accident as well as whether the accident was a cause of Pennell’s headaches, it is clear that WIS JI— CIVIL 1500 should have been provided in a manner addressing both the accident and the injury. Pennell’s requested alternate WIS JI— CIVIL 1500 was in line with a proper instruction to the jury under the circumstances of this case:

In answering questions 1 thru 5 you must decide whether someone’s negligence caused the accident. These questions do not ask about "the cause" but rather "a cause" because an accident may have more than one cause. Someone’s negligence caused the accident if it was a substantial factor in producing the accident. An accident may be caused by one person’s negligence or by the combined negligence of two or more people.

Question number six and its subparts address damages. You must decide whether the accident on May 23, 2014, caused Monica Pennell’s injuries. This question does not ask about "the cause" but rather "a cause" because an injury may have more than one cause. An accident caused the injuries if it was a substantial factor in producing the injuries.

¶9 The jury was never instructed on causation as it related to Pennell’s injuries.⁵ The jury was only instructed on the issue of whether Pennell’s negligence was a cause of the accident.⁶ The circuit court ruled that WIS JI— CIVIL 202⁷ sufficiently instructed the jury with regard to damages and, therefore, giving WIS JI— CIVIL 1500 on causation as to Pennell’s injuries was unnecessary. The court erred. WISCONSIN JI— CIVIL 202 addresses the burden to prove damages, which is the fourth element of a negligence cause of action—"actual loss or damage as a result of the injury"—and WIS JI— CIVIL 1500 goes to the third element of a negligence cause of action—causation. We agree with Pennell that as a result, the jury was "misled into believing that the ‘a cause’/‘substantial factor’ standard did not apply to assessing the causation of Pennell’s injuries."

Jury Instruction 1720: Aggravation of Pre-Existing Condition

¶10 Given the facts presented, Pennell requested WIS JI— CIVIL 1720, addressing "aggravation or activation" of a pre-existing condition:

In answering subdivision _____ of question ________, you cannot award any damages for any (pre-existing disease, condition, or ailment) (predisposition to disease) except insofar as you are satisfied that the (disease, condition, or ailment) (predisposition to disease) has been (aggravated) (activated) by the injuries received in the accident on (date ). If you find that the plaintiff had a (pre-existing disease or condition which was dormant) (predisposition to disease) before the accident but that such (disease or condition) (predisposition to disease) was (aggravated) (brought into activity) because of the injuries received in the accident, then you should include an amount which will fairly and reasonably compensate (plaintiff ) for such damages (plaintiff ) suffered as a result of such (aggravation) (activation) of the condition.

Any ailment or disability that the plaintiff may have had, or has, or may later have, which is not the natural result of the injuries received in this accident, is not to be considered by you in assessing damages. You cannot award damages for any condition which has resulted, or will result, from the natural progress of the pre-existing disease or ailment or from consequences which are

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