Western National Mutual Insurance Company v. Advanced Disposal Services Solid Waste Midwest, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 12, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2213 Cir. Ct. No. 2016CV65

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

WESTERN NATIONAL MUTUAL INSURANCE COMPANY AND AMERICAN
WOOD RECYCLING, INC.,

PLAINTIFFS-RESPONDENTS,

V.

ADVANCED DISPOSAL SERVICES SOLID WASTE MIDWEST, LLC,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Green County:
THOMAS J. VALE, Judge. Reversed and cause remanded with directions.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2213

¶1 PER CURIAM American Wood Recycling, Inc. alleges in this
action that Advanced Disposal Services Solid Waste Midwest, LLC, negligently
overloaded one of American Wood’s semi-trailers, resulting in damage to the
trailer. At trial, the jury was asked to determine, regardless of any special verdict
question addressing negligence or contributory negligence, what amount of money
would “fully compensate” American Wood for “the damage to the trailer,” and the
jury answered $25,000. On a motion by American Wood, the circuit court
changed the damages verdict to $50,289, which is the precise amount reflected on
an invoice submitted by the mechanic who repaired the trailer after the loading
incident. On appeal, Advanced Disposal argues in pertinent part that the court’s
order changing the damages verdict must be reversed because the jury’s answer
was supported by credible evidence. We agree and accordingly reverse and
remand with directions to reinstate the jury’s damages answer.1

DISCUSSION

¶2 We first summarize pertinent background, next explain the
applicable legal standards, and then discuss our conclusion that there is credible
evidence to support the jury’s damages verdict.

1
Because our conclusion disposes of the appeal, we need not and do not reach additional
issues raised by Advanced Disposal.

Separately, we use the collective phrase “American Wood” to refer to the interests and
arguments of American Wood and co-plaintiff-respondent Western National Mutual Insurance
Company. There are no separate issues in this appeal involving Western National.

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No. 2018AP2213

A. Background

¶3 The trailer of the type that American Wood contends was overloaded
at the Advanced Disposal facility is typically loaded with recyclables in a process
that involves moving floor slats. On this type of trailer, underneath the equipment
that moves the floor slats are cross members that support the trailer floor. It is
undisputed that, before the loading incident at issue here, through no fault of
Advanced Disposal, some of the cross members in American Wood’s trailer had
broken welds and cracks. We will refer to the broken welds and cracks as “the
pre-existing damage.” We will use the term “new damage” to refer to any post-
loading incident features of the trailer that required repairs different from the pre-
existing damage.

¶4 An American Wood employee left the trailer with its pre-existing
damage at an Advanced Disposal facility to be loaded with recyclables. When the
employee returned the next day, the trailer had suffered at least some new damage.
In particular, the roof was newly bowed upward and had broken away from the
trailer, and the floor had given out.

¶5 American Wood transported the trailer to Ken’s Truck Repair for
repair, but did not ask Ken’s Truck Repair to make any distinction between the
repair of purported pre-existing damage and the repair of purported new damage.
Instead, Ken’s Truck Repair was simply to bring the trailer into proper working
order. Ken’s Truck Repair made a large number of repairs and submitted for
payment an itemized invoice in the total amount of $50,285.79. American Wood
sued Advanced Disposal for damages allegedly arising from Advanced Disposal’s
negligent handling of its trailer.

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No. 2018AP2213

¶6 At trial, the parties presented evidence and testimony disputing both
the nature of the pre-existing damage and the causes of new damage. Broadly
summarizing, American Wood’s witnesses testified that the pre-existing damage
did not contribute to the creation of any new damage, and instead Advanced
Disposal had caused all of the new damage exclusively through negligent loading.
One of American Wood’s witnesses also testified that the pre-existing cracks were
“a symptom of a bigger disease” that had been “recurring” in advance of the
alleged overloading. Advanced Disposal’s witness testified that the pre-existing
damage to the trailer was extensive, that it left the trailer in a structurally
weakened condition, and that the pre-existing damage caused the new damage, not
the alleged negligent loading by Advanced Disposal. During deliberations, the
jury requested and received the repair invoice from Ken’s Truck Repair.

¶7 The special verdict form asked the jury five questions regarding
negligence, and one question regarding damages. Neither party argues on appeal
that the circuit court erred in asking any special verdict questions. The following
were the non-damages questions, along with the jury answers: (1) was American
Wood negligent in failing to maintain the trailer? (jury: yes); (2) if yes, was
American Wood’s negligent maintenance a cause of damage to the trailer? (jury:
yes); (3) was Advanced Disposal negligent? (jury: yes); (4) if yes, was Advanced
Disposal’s negligence a cause of damage to the trailer? (jury: yes); (5) if both sides
were contributorily negligent and the “assum[ed] … total negligence which caused
damage … to be 100%, what percentage” is attributable to each? (jury: 50-50).

¶8 Unlike the above questions, which were presented as being
interrelated, the damages question was explicitly set apart, to be considered as a
standalone question:

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No. 2018AP2213

Regardless of how you answered the preceding
questions, you must answer the following question:

What sum of money will fairly, reasonably, and
fully compensate [American Wood] for the damage to the
trailer?

[Jury:] $25,000

¶9 After these verdicts were returned, American Wood protested that
the $25,000 damages amount could not be sustained, and requested that the circuit
court reinstruct the jury on damages and that the court issue a “directed verdict” if
the jury came back with a number below $50,000. Over Advanced Disposal’s
objection, the circuit court asked the jury to reconsider the answer to the damages
question and reread jury instructions WIS JI—Civil 1700 (Damages: General) and
WIS JI—Civil 1804 (Property: Damage to Repairable Property). During its
subsequent deliberations, the jury submitted the following question: “Does this
mean all? Or none[?] 0—or 50,000[?]”

¶10 In response to the jury’s question, American Wood asked the circuit
court to change the damages answer, on the ground that there had been no
evidence at trial “about anything not [being] included in [Ken’s Truck Repair]
bill.” The court changed the damages answer, reasoning as follows:

[I]t’s clear that the jury is struggling with this issue [and
t]hat in the court’s opinion there was not evidence or
testimony supporting [the jury’s] finding of damages at
$25,000. The only credible evidence that really wasn’t
disputed was the actual [Ken’s Truck Repair] invoice,
Exhibit 9, and that dollar amount was $50,285.79, and
while it would have been possible in theory to find other
numbers, there wasn’t any evidence supporting the finding
of another number or that the repair bill was unreasonable
or too high or anything to that effect.

¶11 Advanced Disposal subsequently filed written post-verdict motions
for an order entering judgment on the verdict rendered by the jury or alternatively

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No. 2018AP2213

for a new trial on damages. The motions were deemed denied when the circuit
court did not rule on them within ninety days after the “directed verdict” was
rendered. See WIS. STAT. § 805.16(3) (2017-18) (providing that a motion after
verdict that is not decided “within 90 days after the verdict is rendered” is
“considered denied and judgment shall be entered on the verdict”).2 The court
subsequently entered judgment on the “directed verdict.”3

B. Applicable Legal Standards

¶12 In reviewing a circuit court’s decision to change a jury’s answer,

an appellate court will search for credible evidence to
sustain the jury’s verdict. The appellate court will overturn
the circuit court’s decision if the circuit court was “clearly
wrong.” A circuit court’s decision to change the jury’s
answer is “clearly wrong” if the jury verdict is supported by
“any credible evidence.”

Best Price Plumbing, Inc. v. Erie Ins. Exch., 2012 WI 44, ¶44, 340 Wis. 2d 307,
814 N.W.2d 419 (quoted source and citations omitted).

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
3
As the parties both acknowledge, American Wood moved for a directed verdict,
Advanced Disposal opposed the motion, and the circuit court granted the motion, all on the third
day of trial after the jury had rendered its verdict; therefore, the motion was properly to change
the jury’s answer in the verdict pursuant to WIS. STAT. § 805.14(5)(c) (“Motion to change
answer. Any party may move the court to change an answer in the verdict on the ground of
insufficiency of the evidence to sustain the answer.”). Accordingly, in the remainder of this
opinion we will refer to the motion as one to change the jury’s answer as to damages. See
§ 805.14(2)(b) (providing that a court shall treat as properly designated a mistakenly designated
motion “challenging the sufficiency of evidence as a matter of law”).

We observe that in its acknowledgement of the proper designation of its motion,
American Wood cites an unpublished per curiam opinion of this court in violation of W IS. STAT.
RULE 809.23(3). We also observe that Advanced Disposal often fails to provide record cites to
supports its assertions in violation of WIS. STAT. RULE 809.19(1)d. Future violations of the
Rules of Appellate Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2018AP2213

¶13 “The jury, as the trier of fact, ‘determines the credibility of the
witnesses, resolves conflicts in the testimony, weighs the evidence and draws
reasonable inferences from the evidence.’ The jury is not bound by expert
opinions; rather, it can accept or reject an expert’s opinion.” Giese v. American
Transmission Co., 2014 WI App 72, ¶13, 355 Wis. 2d 454, 853 N.W.2d 564
(quoted source and citations omitted). Giese relies on State v. Owen, 202 Wis. 2d
620, 634, 551 N.W.2d 50 (Ct. App. 1996), for the proposition that the trier of fact
may accept certain portions of an expert’s testimony while disregarding other
portions, and also WIS JI—Civil 260, for the proposition that a jury is “not bound
by any expert’s opinion.” Giese, 355 Wis. 2d 454, ¶13.

C. Analysis

¶14 Searching the record for evidence that the jury could have credited to
support the damages verdict, as we must, we see multiple reasons to affirm the
jury’s verdict and we reject American Wood’s arguments to the contrary.

¶15 We first note that the jury was instructed to award only those
damages that would “fairly, reasonably, and fully compensate” American Wood
for repair of new damage to the trailer, not to compensate American Wood for
repair of pre-existing damage. This is conveyed by the phrase in the damages
question “for the damage to the trailer.” Along the same lines, the jury instruction
on this topic directed the jury to determine as damages the amount representing
the “reasonable cost to restore the property to its prior condition,” which in context
logically meant restoration of the trailer’s condition to its status before the loading
incident, not its condition at some earlier time before some or all of the pre-
existing damage developed.

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No. 2018AP2213

¶16 Further, the jury was directed in the damages question to completely
ignore the negligence and contributory negligence determinations it had already
made. A jury is presumed to have followed jury instructions. State v. LaCount,
2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780. The jury here was instructed
to focus exclusively on full compensation to American Wood for new damage.

¶17 We conclude that the jury had reasonable bases from which to
estimate that new damage amounted to $25,000, putting aside any determinations
about negligent conduct by anyone.

¶18 First, as referenced above, a primary theory of Advanced Disposal at
trial was that the pre-existing damage was significant and extensive and also that
the pre-existing damage caused the new damage. To the extent that the jury
accepted all of the evidence and reasonable inferences from this evidence as
argued by Advanced Disposal, the jury could have determined that some fractional
amount of the repair bill represented work addressing new damage and another
percentage addressed pre-existing damage. As Advanced Disposal argues, the
jury was free to find that much of the repaired damage to the floor of the trailer
was pre-existing damage, not new damage. And, if the jury found that repaired
damage to the floor was mostly pre-existing damage, this gave the jury ample
room for its damages estimate. It was not within the authority of the circuit court
to substitute its view that $25,000 was too low a number to assign to an estimate
of the cost to address new damage.

¶19 Second, the jury was not required to accept any opinion about the
reasonable cost to repair new damage to the trailer. There was no stipulation
between the parties on any aspect of reasonable costs of repair. Evidence on
which the jury could reasonably rely included the Ken’s Truck Repair invoice,

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No. 2018AP2213

which provided a list of over eighty separate line items for service and parts, with
a total cost of $50,285.79. The fact that the owner of Ken’s Truck Repair testified
that the repairs were all reasonable and necessary to return the trailer to a safe
working condition does not undermine the jury’s damages calculation of $25,000.
As noted, the jury specifically asked for this invoice during its deliberations and
had a chance to review which items might have appeared to it to represent pre-
existing damage and which items represented new damage. Such a review would
be consistent with the instruction provided to the jury, that:

If the property can be restored to its condition before the
[damage], compensation to the owner is measured by the
reasonable cost of the repairs necessary to restore the
property to its prior condition. The measure under this …
rule is the reasonable cost to restore the property to its
former condition, not what may have been the actual cost
of repair.

WIS JI—CIVIL 1804 (emphasis added). The jury was free to select among the line
items and to ignore, or to adjust downward, the costs associated with the items and
services based on its own “common sense and experience.” See WIS JI—CIVIL
215; see also Geise, 355 Wis. 2d 454, ¶17 (“the jury was not required to accept an
expert’s opinion as to what increases or decreases the value of a particular
property but rather could consider its own observations and experiences regarding
what makes a property more or less valuable”). Facts pertinent here could have
included the jury’s assessment of the apparent motivations and credibility of the
invoice’s creator, who was the owner of the company that undertook and was paid
for the repairs.

¶20 American Wood argues that we must conclude that the jury awarded
half the total amount stated on the invoice because it determined that Advanced
Disposal was only half responsible for the damage. American Wood’s argument

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No. 2018AP2213

depends on the assumption that the jury failed to follow the instructions and
merely posits an alternative inference that may be drawn from the record. That
alternative inference is weakened by the fact that exactly half of the invoice total
would be $25,142.90, not $25,000.

CONCLUSION

¶21 For the reasons stated, we reverse and remand with directions to
reinstate the jury’s damages answer.

By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

10