Mark A. Melvin v. LM General Insurance Company

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, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP868 Cir. Ct. No. 2022CV38

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

MARK A. MELVIN,

PLAINTIFF-APPELLANT,

QUARTZ HEALTH INSURANCE CORPORATION,

INVOLUNTARY-PLAINTIFF,

V.

LM GENERAL INSURANCE COMPANY,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Columbia County:
TROY D. CROSS, Judge. Reversed and cause remanded.

Before Kloppenburg, P.J., Graham, and Taylor, JJ.
No. 2024AP868

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).

¶1 PER CURIAM. Mark Melvin brought this action seeking damages
for injuries that he sustained when he lost control of his motorcycle allegedly as a
result of Richard Ryan’s negligent operation of Ryan’s vehicle. The circuit court
granted summary judgment to Ryan’s insurer, LM General Insurance Company,
dismissing the complaint. The court concluded that, as a matter of law, Melvin
was negligent for attempting to pass Ryan’s vehicle in a no-passing zone and no
jury could find that Ryan was negligent.

¶2 On appeal, Melvin argues that genuine issues of material fact—as to
both drivers’ contributory negligence and whether any negligence on the part of
Melvin was greater than any negligence on the part of Ryan—preclude summary
judgment. We agree and, accordingly, reverse and remand.

BACKGROUND

¶3 The following undisputed facts, taken from the summary judgment
submissions, provide the context for the analysis that follows.

¶4 On a July afternoon in 2020, when Melvin was 64, Melvin was on
his motorcycle traveling within the speed limit, between 45 and 55 miles per hour,
on a two-lane road heading up a slight incline west from Lodi to his home. Ahead
of him, Ryan was driving a pick-up truck pulling a trailer loaded with hay bales,
traveling on the same road at about 20 miles per hour, heading west from his
farm’s driveway to a leased farm’s driveway. As Melvin neared the truck and
trailer, he saw it slow down and almost come to a full stop. Melvin was beginning
to pass the truck and trailer when he saw the truck and trailer start to turn left into

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the leased farm’s driveway. Melvin applied his front and rear brakes “hard” and
then released the rear brake, at which point the motorcycle began to skid and
Melvin came off of the motorcycle. A solid yellow line separated the two lanes
where Melvin began to pass the truck and trailer.

¶5 Melvin filed a complaint alleging that Ryan’s negligence in his
operation of the truck and trailer caused the injuries that Melvin sustained when
Melvin came off of the motorcycle. In the course of the litigation, Melvin named
Ryan and three insurance companies as defendants, and all defendants except LM
General Insurance Company were dismissed voluntarily or by stipulation.

¶6 LM General filed a motion for summary judgment seeking dismissal
of the complaint. The circuit court issued an oral ruling, followed by a written
order, granting the motion. As stated, the court concluded that, as a matter of law,
Melvin was negligent for attempting to pass Ryan’s vehicle in a no-passing zone
and no jury could find that Ryan was negligent.

DISCUSSION

¶7 We review a grant of summary judgment de novo. Bank of New
York Mellon v. Klomsten, 2018 WI App 25, ¶31, 381 Wis. 2d 218, 911 N.W.2d
364. Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact” and a party is entitled to a

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judgment as a matter of law. WIS. STAT. § 802.08(2) (summary judgment to
moving party) and (6) (summary judgment to non-moving party).1

¶8 This court views the summary judgment materials “in the light most
favorable to the party opposing summary judgment.” United Concrete & Constr.,
Inc. v. Red-D-Mix Concrete, Inc., 2013 WI 72, ¶12, 349 Wis. 2d 587, 836
N.W.2d 807. “[I]f more than one reasonable inference can be drawn from the
undisputed facts, summary judgment is not appropriate.” Schmidt v. Northern
States Power Co., 2007 WI 136, ¶47, 305 Wis. 2d 538, 742 N.W.2d 294.

¶9 Wisconsin is a comparative negligence state. WIS. STAT.
§ 895.045(1). Under our system of negligence apportionment, a plaintiff’s
contributory negligence does not bar recovery when the plaintiff’s negligence is
not greater than the defendant’s negligence. Id.; Bain v. Tielens Constr., Inc.,
2006 WI App 127, ¶5, 294 Wis. 2d 318, 718 N.W.2d 240. The apportionment of
comparative negligence is generally a matter left to the trier of fact. Phelps v.
Physicians Ins. Co. of Wis., 2005 WI 85, ¶45, 282 Wis. 2d 69, 698 N.W.2d 643.
However, the court must bar recovery when the plaintiff’s negligence is greater
than the negligence of the defendant as a matter of law. Jankee v. Clark County,
2000 WI 64, ¶50, 235 Wis. 2d 700, 612 N.W.2d 297.

¶10 Here, the circuit court granted summary judgment dismissing the
complaint based on its conclusion that, as a matter of law, Ryan was not negligent
and Melvin was negligent for attempting to pass Ryan in a no-passing zone.
However, as we now explain, the summary judgment submissions establish that

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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there are disputes of material fact as to both Ryan’s and Melvin’s contributory
negligence, and that, in light of those disputes, we cannot conclude that any
negligence on the part of Melvin was greater as a matter of law than any
negligence on the part of Ryan.

¶11 The disputes of material fact include at least the following.

¶12 Lights/turn signals. One set of disputes of fact material to the
comparative negligence of Melvin and Ryan is whether the truck’s and trailer’s
brake lights were illuminated when Ryan slowed before making the turn, and
whether the truck’s and trailer’s turn signals were on before Ryan made the turn
and, if so, for what period of time. Melvin testified that he did not see tail lights,
flashing hazard lights, or turn signals as he approached the truck and trailer, and he
believed that there were none. Ryan testified that: he tested the truck’s and
trailer’s tail lights, brake lights, flashing hazard lights, and turn signals after he
connected the trailer to the truck and all lights were working when he tested them
the afternoon of the incident; he plugs in the trailer’s electrical hook-up separately
from physically connecting the trailer to the truck; the driver has to turn off the
hazard lights in order to turn on the turn signals; and he travelled with the flashing
hazard lights on for the entire distance between the two driveways until he turned
off the hazard lights and turned on the turn signals when he was about 350 feet
from the leased farm’s driveway.

¶13 The parties’ experts did not opine as to whether the truck’s and
trailer’s lights and turn signals were on before Ryan made the turn. The Columbia
County Sheriff’s Deputy who responded to the accident testified that a photograph
of the truck stopped in the driveway after completing the turn showed the truck’s
tail lights illuminated, another photograph of the trailer in the same location

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showed no tail lights illuminated on the trailer, and yet another photograph of the
trailer showed the trailer’s tail lights illuminated.

¶14 These aspects of the testimony and evidence summarized above
establish disputes of material fact as to whether the truck’s and trailer’s brake
lights and turn signals were on before Ryan began making the left turn into the
leased farm’s driveway. The potential significance of these disputes is that, if the
truck’s and trailer’s turn signals were not on, viewing the facts in the light most
favorable to Melvin, a jury could find that Melvin may have reasonably believed
that it was safe to pass and that Ryan may have negligently failed to alert Melvin
that Ryan saw Melvin behind him when Ryan was preparing to make a left turn.
How a jury were to resolve these factual disputes would inform the jury’s
apportionment of negligence between Melvin and Ryan.

¶15 Location of truck and trailer before turn. Another set of disputes of
fact material to the comparative negligence of Melvin and Ryan is whether Ryan’s
truck and trailer were partially or wholly on the gravel shoulder to the right of the
roadway, or only on the roadway, before Ryan made the turn to the left, such that
Melvin would have seen Ryan’s truck and trailer move to the right of the roadway
as Melvin approached. Melvin’s expert opined that “the positions of the … trailer
in the turn” indicated that the truck and trailer were on the shoulder to the right of
the roadway before Ryan made the turn. The Columbia County Sheriff’s Deputy
testified that the trailer’s tire tracks indicated the same. Melvin’s expert also
opined that Ryan would not have been able to see the motorcycle in his left-side
mirror, as Ryan testified he did first when the motorcycle was about 2,000 feet
behind him and second when the motorcycle was about 1,000 feet behind him,
unless the truck and trailer were on the shoulder.

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¶16 Ryan testified that he made the turn solely from the roadway and had
not pulled over to the shoulder on the right. Ryan’s expert opined that, before
Ryan made the turn, the truck’s and trailer’s right-side inner tires were on the line
separating the roadway from the shoulder, and the right-side outer tires were at
least partially over that line. Ryan’s expert also opined that Ryan would have
been able to see the motorcycle behind him if the truck and trailer were so
situated.

¶17 These aspects of the testimony and evidence summarized above
establish disputes of material fact as to where the truck and trailer were located
when Ryan was slowing down and beginning to make the left turn. The potential
significance of these disputes is that, if Melvin saw Ryan’s truck and trailer
partially or wholly on the shoulder when the truck and trailer were slowing down
and coming almost to a full stop, viewing the facts in the light most favorable to
Melvin, a jury could find that Melvin may have reasonably believed that it was
safe to pass. How a jury were to resolve these factual disputes would inform the
jury’s apportionment of negligence between Melvin and Ryan.

¶18 Time to stop. Another set of disputes of fact material to the
comparative negligence of Melvin and Ryan is whether Melvin reasonably or
negligently believed that he needed to brake “hard,” thereby leading to the loss of
control of the motorcycle, to avoid hitting Ryan’s truck and trailer as Ryan made
the left turn. Melvin testified that he had started to pass Ryan’s truck and trailer
when he saw Ryan start to turn, at which point he “hit both brakes hard.” Ryan
testified that as he was making the turn he saw Melvin fishtailing about 300 feet
behind him. Melvin’s expert opined that Melvin was about 200 feet behind
Ryan’s trailer when Melvin started braking and that Melvin had time to bring his
motorcycle to a controlled stop without hitting Ryan’s truck and trailer or losing

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control of his motorcycle. Ryan’s expert opined that Melvin was about 136 feet
behind Ryan’s trailer when Melvin started braking and that Melvin could have
brought his motorcycle to a controlled stop in 107 feet.

¶19 These aspects of the testimony and evidence summarized above
establish disputes of material fact as to whether, when Melvin applied the brakes
hard, Ryan had begun his turn to the left and Melvin had time to stop without
losing control of the motorcycle or hitting Ryan. The potential significance of
these disputes is that, viewing the facts in the light most favorable to Melvin, a
jury could find that Melvin may have reasonably believed that he did not have
time to bring the motorcycle to a controlled stop in order to avoid hitting the truck
and trailer when he saw the truck and trailer turning, and that he had to apply the
rear and front brakes hard to avoid a collision. Moreover, that Melvin may have
been able to avoid losing control of his motorcycle does not mean that Ryan was
not negligent. How a jury were to resolve these factual disputes would inform the
jury’s apportionment of negligence between Melvin and Ryan.

¶20 Path of motorcycle. Another set of disputes of fact material to the
comparative negligence of Melvin and Ryan is whether Melvin was at any time in
the eastbound lane as he neared Ryan’s truck and trailer. Both parties’ experts
opined that: the skid marks in the road showed that the motorcycle was in the
westbound lane when Melvin applied the brakes; the motorcycle stayed in the
westbound lane until Melvin came off of the motorcycle; the motorcycle
ultimately coasted to a stop in the eastbound lane; and Melvin was not ever in the
eastbound lane. Melvin testified that he was in the eastbound lane when he was
attempting to pass the truck and trailer.

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¶21 These aspects of the testimony and evidence summarized above
establish disputes of material fact as to whether Melvin was in the eastbound lane
when he began to pass the truck and trailer, before he applied the brakes in the
westbound lane. How a jury were to resolve these factual disputes would inform
the jury’s apportionment of negligence between Melvin and Ryan.

¶22 In light of these disputes of material fact, a circuit court could not
conclude that, as a matter of law, any negligence on the part of Melvin was greater
than any negligence on the part of Ryan so as to bar recovery. We now address
and reject LM General’s arguments to the contrary.

¶23 LM General argues that Melvin’s negligence was greater than 50%
as a matter of law for three reasons: (1) Melvin’s injuries were either solely or
primarily caused by his own negligent management and control of his motorcycle;
(2) Melvin violated state traffic laws; and (3) Melvin was the primary cause of his
injuries by attempting to pass Ryan given the circumstances. As we explain, LM
General’s arguments lack merit because they disregard the disputes of material
fact discussed above and rely on inapposite case law.

¶24 Melvin’s management and control of his motorcycle. LM General
argues that Melvin was negligent in his management and control of his motorcycle
because, according to LM General, it is undisputed that, “when Melvin recognized
that the Ryan vehicles were slowing and he began braking, Melvin had more than
enough time to come to a controlled stop without any injury had he properly
maintained both brakes.” However, based on the evidence summarized above, a
jury could find that Melvin reasonably believed that he did not have time to come
to a controlled stop without braking hard. More importantly, even if there were no
dispute that Melvin was negligent in this respect, a court cannot conclude that such

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negligence was greater than 50% given the many disputed facts as to the potential
contributory negligence of both Melvin and Ryan in other respects, including
whether Melvin was negligent when he began passing Ryan and whether Ryan
was negligent based on where his truck and trailer were located and whether his
brake lights or turn signals were on.

¶25 Violation of traffic laws. LM General argues that, whether Melvin
was attempting to pass in the eastbound or westbound lane, he violated certain
traffic laws.2 Therefore, LM General contends, Melvin was negligent and cannot
prevail in his claim against Ryan. This argument fails because LM General cites
no legal authority to support the proposition that violating a traffic law establishes
negligence greater than 50%.

¶26 Primary cause of injuries. LM General argues that Melvin caused
his own injuries by “attempt[ing] to pass Ryan’s huge truck/trailer vehicles in a
no-passing zone,” up a slight incline, on a “narrow” two-lane road, and then not
controlling his motorcycle when he had time to bring his motorcycle to a
controlled stop without hitting Ryan. This argument isolates only a narrow subset
of the potentially relevant factual circumstances and disregards the disputes
regarding the various respects in which both Melvin and Ryan may have been

2
More specifically, LM General argues that, if Melvin crossed the yellow line into the
eastbound lane when he began to pass Ryan, then Melvin violated WIS. STAT. § 346.09(3)(b).
That statute provides that a person may not, in a no-passing zone, cross into the left side of the
center of the road to pass “an implement of husbandry … traveling at a speed less than half of the
applicable speed limit.” Sec. 346.09(3)(b). LM General argues that Ryan’s trailer is an
implement of husbandry as defined in § 340.01(24)(a)1.c. and that Melvin had “no legal basis” to
pass Ryan’s truck and trailer by crossing into the eastbound lane. Alternatively, LM General
argues that, if Melvin was only in the westbound lane when he began to pass Ryan, then Melvin
violated WIS. STAT. § 346.595(1), which provides that “no vehicle may be driven or operated in
such a manner so as to deprive any other vehicle of the full use of a traffic lane.”

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contributorily negligent, and whether any negligence of Melvin was greater than
any negligence of Ryan, as summarized above.

¶27 In addition, the circumstances here are easily distinguished from the
circumstances in the cases cited by LM General, in which the court has ruled that
the plaintiff was more than 50% negligent as a matter of law. Those cases involve
extreme facts, such as a plaintiff suing for injury or death that occurred when the
plaintiff was fleeing from the police or security guards in such a way as to put the
plaintiff in a position of known danger—see Brunette v. Employers Mut. Liab.
Ins. Co. of Wis., 107 Wis. 2d 361, 362-63, 320 N.W.2d 43 (Ct. App. 1982)
(plaintiff ran stop signs and crashed a motorcycle while trying to evade police);
Peters v. Menard, Inc., 224 Wis. 2d 174, 179-82, 589 N.W.2d 395 (1999)
(plaintiff fled from security guards after taking a drill from a store and jumped into
a flooded river)—or trying to escape by jumping out of a window—see Jankee,
235 Wis. 2d 700, ¶¶35-39 (plaintiff who failed to comply with treatment program
tried to escape from a health center by climbing out a window and falling from the
roof). Here, by contrast, Melvin tried to overtake and pass a slow-moving farm
vehicle on a country road, which the parties do not dispute is a common
occurrence on rural roads in Wisconsin and one that, under the circumstances
summarized above, cannot be deemed to constitute negligence that was “‘so clear
and the quantum so great’” as to be greater than 50% as a matter of law. See id.,
¶50 (quoted source omitted).

¶28 Separately, LM General argues that Ryan’s negligence was less than
Melvin’s negligence as a matter of law, such that the circuit court did not err in not
considering the negligence of Ryan. LM General essentially reiterates the
arguments we have addressed and rejected above, in support of its assertion that,
even if Ryan did not have his brake lights and turn signals on, any negligence that

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could be attributed to that failure was outweighed by the “foolish” actions by
Melvin. Just as disputes of material fact preclude a court from concluding that any
negligence on the part of Melvin was greater than 50% as a matter of law, so do
those same disputes preclude a court from concluding that any negligence on the
part of Melvin was greater than any negligence on the part of Ryan as a matter of
law. In short, it is for the trier of fact to evaluate the comparative negligence of
Melvin and Ryan based on the facts found by the trier of fact.

¶29 Finally, LM General argues that public policy considerations support
a determination that Melvin’s negligence outweighed any negligence on the part
of Ryan. LM General argues that Ryan’s version of the facts establish that
“Melvin’s injuries are too remote and out of proportion to any possible negligence
on the part of Ryan.” According to LM General, to allow recovery to Melvin for
injuries incurred when he tried to pass “a very large truck/trailer, in an uphill no-
passing zone,” would cause more accidents by requiring drivers “to pay more
attention to what is happening behind them” than around and in front of them.
This argument fails because, like LM General’s other arguments, it disregards the
disputes of material fact regarding the parties’ potential contributory negligence
and how that negligence might be apportioned.

CONCLUSION

¶30 For the reasons stated, we reverse and remand.

By the Court.—Judgment reversed and cause remanded.

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

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