Monica R. Pennell v. American Family Mutual Insurance Company, S.I.

2020 WI APP 27
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP170

Complete Title of Case:

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.

Opinion Filed: April 15, 2020
Submitted on Briefs: January 9, 2020
Oral Argument:

JUDGES: Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Concurred:
Dissented:

Appellant
ATTORNEYS: 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.
Respondent
ATTORNEYS: On behalf of the defendants-respondent, the cause was submitted on the
brief of Janes C. Ratzel of Ratzel, Pytlik & Pezze, LLC, Brrokfield.
2020 WI App 27

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.
April 15, 2020
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. 2019AP170 Cir. Ct. No. 2017CV490

STATE OF WISCONSIN IN COURT OF APPEALS

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 from a judgment of the circuit court for Kenosha County:
DAVID M. BASTIANELLI, Judge. Reversed and cause remanded with directions.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
No. 2019AP170

¶1 REILLY, P.J. 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 neuralgia 2 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

1
The special verdict contained six questions. The parties stipulated to the first two
questions, which addressed whether Covelli was negligent in the operation of her vehicle and
whether her negligence was a cause of the accident. Questions three, four, and five pertained to
whether Pennell was also negligent in the operation of her vehicle, whether her negligence was “a
cause” of the “accident,” and what percentage of the “total combined negligence” could be
attributed to each of the drivers. Question six asked the jury to determine what amount of money
would “fairly and reasonably compensate” Pennell for her injuries and damages as a result of the
accident.
2
A condition affecting the nerves at the base of the skull.

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No. 2019AP170

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

3
American Family argues that Pennell waived her objections to her proposed instructions.
See State v. Gomaz, 141 Wis. 2d 302, 318, 414 N.W.2d 626 (1987). We disagree. Pennell stated
her grounds with particularity and preserved her objections for review. See WIS. STAT. § 805.13(3)
(2017-18). Pennell not only requested specific instructions (WIS JI—CIVIL 1500 and 1720) and
submitted an alternate instruction, she also made the court and opposing counsel aware of her
particularized objection, made her argument on the record, and obtained a final ruling from the
court. See Douglas v. Dewey, 154 Wis. 2d 451, 467, 453 N.W.2d 500
(Ct. App. 1990); see also Air Wisconsin, Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 311,
296 N.W.2d 749 (1980). The circuit court indicated on the record that it did not agree that the “a
cause”/“substantial factor” test applied to causation of damages and indicated that it did not agree
with Pennell’s modified WIS JI—CIVIL 1500 instruction. The circuit court acknowledged that
Pennell’s objection was preserved for appeal: “No, I decline to give that modified instruction.
We’ll make it part of the record though.” Pennell did not waive her objection.

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No. 2019AP170

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
(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 (citation omitted); see
also Dakter v. Cavallino, 2015 WI 67, ¶105, 363 Wis. 2d 738, 866 N.W.2d 656

4
Two jurors dissented to the answers for past medicals and future medicals.

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No. 2019AP170

(Roggensack, C.J., concurring); Fischer, 168 Wis. 2d at 850; Goshaw, 387 Wis. 2d
620, ¶19.

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 (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:

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No. 2019AP170

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—

5
The circuit court also instructed counsel for Pennell to “stay away from the word ‘a’
cause” in closing arguments as it pertained to her injuries.
6
The jury was given a version of WIS JI—CIVIL 1500 without reference to Pennell’s
injuries:

In answering question 4, you must decide whether someone’s
negligence caused the (accident). (This) question (does) 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.

The instruction was applicable only to special verdict question four, which asked “[w]as Monica
Pennell’s negligence a cause of the accident,” and referred specifically to a cause of the accident,
not the injury.

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No. 2019AP170

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

7
WISCONSIN JI—CIVIL 202 provides:

In considering the amount to be inserted by you in answer to
each damage question, the burden rests upon each person claiming
damages to convince you by the greater weight of the credible
evidence, to a reasonable certainty, that the person sustained
damages (with respect to the element or elements mentioned in
the question) and the amount of the damages.

The amount you insert should reasonably compensate the
person named in the question for the damages from the (accident)
(occurrence.)

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No. 2019AP170

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 attributable to causes other
than the accident.

If the plaintiff was more susceptible to serious results
from the injuries received in this accident by reason of a (pre-
existing disease or condition) (predisposition to disease) and
that the resulting damages have been increased because of
this condition, this should not prevent you from awarding
damages to the extent of any increase and to the extent such
damages were actually sustained as a natural result of the
accident.

¶11 The circuit court denied Pennell’s request to give WIS JI—CIVIL 1720
to the jury, explaining that

[t]his is basically an all or nothing aspect. Either the
accident, because she was totally healed, as a result of the
problems she has now she’s entitled to every penny she’s put
in; or the jurors may find that that accident had nothing to do
with any headaches because three months went by, at least
[according to American Family’s] argument, with no cause.

¶12 The circuit court erred as the issue of causation of Pennell’s injuries
was an issue for the jury to resolve given the competing expert opinions regarding
Pennell’s injuries from the accident. Pennell’s expert testified that the treatment for
Pennell’s post-traumatic headaches aggravated her pre-existing migraines, and
Pennell testified that following the accident her headaches were more severe and
frequent. American Family, in contrast, argued that the evidence demonstrated a
long history of migraine headaches before the accident and no evidence of
headaches in the first few months after the accident. American Family’s expert may

8
No. 2019AP170

be correct or Pennell’s expert may be correct, but it is a matter for the jury to decide,
not the court.

¶13 The jury was not instructed on what standard to apply when
considering the overlap between Pennell’s pre-accident headaches and her post-
accident headaches. “It is common in Wisconsin law that juries must differentiate
damages due to the defendant’s negligence from the plaintiff’s prior condition or
from damages caused by other parties.” Gumz v. Northern States Power Co., 2007
WI 135, ¶66, 305 Wis. 2d 263, 742 N.W.2d 271. It was error to require the jury to
choose between Pennell’s headaches being pre-existing migraines that were
unrelated to the accident or headaches caused by the accident. See Young v.
Professionals Ins. Co., 154 Wis. 2d 742, 747-51, 454 N.W.2d 24 (Ct. App. 1990);
see also Reserve Supply Co. v. Viner, 9 Wis. 2d 530, 532, 101 N.W.2d 663 (1960)
(“It is well-settled in Wisconsin that when evidence supports a number of
contributing causes, the charge and the verdict should recognize that possibility and
it is error to confine the causation question to a single cause.”).

¶14 The facts presented clearly supported giving WIS JI—CIVIL 1720.
The circuit court “must instruct the jury with due regard to the facts of the case, and
thus ‘[i]t is error for the trial court to refuse to instruct on an issue which is raised
by the evidence.’” Strait v. Crary, 173 Wis. 2d 377, 382, 496 N.W.2d 634 (Ct. App.
1992) (citation omitted).

Conclusion

¶15 The court’s refusal to instruct on causation of Pennell’s injuries and
refusal to give WIS JI—CIVIL 1720 resulted in the jury not being fully and fairly
informed of the applicable rule of law based on the facts of this case. The errors
misled the jury and were prejudicial. We cannot say that “the result would not be

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No. 2019AP170

different had the error not occurred.” See Kochanski, 356 Wis. 2d 1, ¶11 (citation
omitted). We reverse and remand for a new trial.

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

10