Julie Klinger v. Wisconsin Mutual 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.
October 27, 2022
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. 2022AP72 Cir. Ct. No. 2019CV3266

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JULIE KLINGER AND JAMES KLINGER,

PLAINTIFFS-APPELLANTS,

DEPARTMENT OF HEALTH AND HUMAN SERVICES, MEDICARE PARTS A&B,
THE MEDICAL ASSOCIATES CLINIC HEALTH PLAN OF WISCONSIN AND
AUTO-OWNERS INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFFS,

V.

WISCONSIN MUTUAL INSURANCE COMPANY AND JOHN MASBRUCH,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Nashold, JJ.
No. 2022AP72

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. Julie Klinger and James Klinger appeal a circuit
court order entered in favor of John Masbruch and his insurer, Wisconsin Mutual
Insurance Company, based on a jury verdict in favor of Masbruch and the court’s
denial of postverdict motions filed by the Klingers.1 A jury heard evidence
regarding a collision at an intersection controlled by a traffic light between a
pickup driven by Masbruch and a sedan driven by Julie, which resulted in injuries
to Julie. Julie filed this negligence action against Masbruch. At trial, the jury
made the following pertinent findings: Masbruch was negligent, but his
negligence was not “a cause of Julie Klinger’s injuries”; Julie was negligent, and
her negligence was “a cause of her injuries.”

¶2 On appeal, the Klingers argue that the circuit court was required, as
a matter of law, to change one of the jury’s causation answers to state that
Masbruch’s negligence was a cause of Julie’s injuries. We conclude that this
argument must be rejected under the reasoning in Powers v. Joint School Dist., 2
Wis. 2d 556, 87 N.W.2d 275 (1958), based on the evidence and the jury answers
here.

1
For ease of reference, we use first names to identify the Klingers individually, and we
make no further reference to Masbruch’s insurer because no issues in this appeal separate
Masbruch and the insurer.

While on the topic of name usage, we note that at times both parties inappropriately use
party designations rather than names for parties, contrary to WIS. STAT. RULE 809.19(1)(i) (2019-
20). In addition to violating the rule, these references diminish the persuasiveness of both sets of
briefs by making them harder to follow.

Separately, all references to the Wisconsin Statutes are to the 2019-20 version unless
otherwise noted.

2
No. 2022AP72

¶3 The Klingers separately argue that the circuit court should have
granted their postverdict request for a new trial on liability based on the court’s
decision to admit a medical record into evidence at trial. We assume without
deciding that it was error to admit the record and affirm because the assumed error
was harmless.

¶4 The Klingers also argue that the circuit court should not have
declined to instruct the jury that a driver who approaches an intersection has a duty
to stop before entering the intersection when the driver has a yellow signal light
unless the stop cannot be executed safely. We conclude that the circuit court did
not erroneously exercise its discretion in declining to give the yellow-light
instruction because the instruction on its face would have conflicted with the
theory of the case that the Klingers placed before the jury, as the Klingers now
concede by failing to address Masbruch’s argument to that effect.

BACKGROUND

¶5 Masbruch drove a pickup south toward an intersection that was
controlled by a traffic light at the same time that Julie drove a full-sized sedan east
toward the same intersection. The two vehicles collided. Masbruch testified that
he entered the intersection on a green light traveling 25 miles per hour. Julie
sustained injuries in the collision and testified at trial that she had no memory of
the collision. The Klingers emphasized trial testimony given by two witnesses,
Kimberly Wright and Jeffrey Miesen, both of whom testified that they heard
Masbruch’s pickup accelerate just before the collision. The Klingers also relied
on Masbruch’s trial testimony that his “last sight” before the collision was of “the
green light,” and that he did not see Julie’s sedan before the collision.

3
No. 2022AP72

¶6 We pause to clarify one aspect of the verdict answers on causation.
While one verdict question asked whether Masbruch’s “negligence [was] a cause
of Julie Klinger’s injuries” (emphasis added), the parties do not dispute that the
jury was properly instructed as follows: “Someone’s negligence caused the injury
if it was a substantial factor in producing the injury.” (Emphasis added.) The
causation issue, then, was whether Masbruch’s negligence, as found by the jury,
was “a substantial factor in producing” Julie’s injuries.2

¶7 On appeal from circuit court rulings discussed below, the Klingers
raise the three issues summarized above, which we now address in turn.

DISCUSSION

I. REQUEST TO CHANGE CAUSATION VERDICT

¶8 The Klingers argue that the circuit court was required, as a matter of
law, to change one jury verdict to state that Masbruch’s negligence was a cause of
Julie’s injuries because, according to the Klingers, the only reasonable inference
from the evidence at trial was that Masbruch failed to keep a proper lookout for
hazards as he approached and entered the intersection. We reject this argument
based on the reasoning in the Powers case, our review of the evidence, and the
nature of the jury answers.

2
For this reason, we reject any argument that the Klingers may intend to make based on
the proposition that the jury found that Masbruch’s negligence was not, as the Klingers put it in
their appellate briefing at one point, “‘a cause’ of” Julie’s injuries. The jury could have found
that his negligence was a causative factor but not a “substantial” one.

4
No. 2022AP72

A. Legal Standards

¶9 A motion to change a verdict answer “challenges the sufficiency of
the evidence to sustain the answer.” Kovalic v. DEC Int’l, Inc., 161 Wis. 2d 863,
873 n.7, 469 N.W.2d 224 (Ct. App. 1991).

No motion challenging the sufficiency of the evidence as a
matter of law to support a verdict, or an answer in a verdict,
shall be granted unless the court is satisfied that,
considering all credible evidence and reasonable inferences
therefrom in the light most favorable to the party against
whom the motion is made, there is no credible evidence to
sustain a finding in favor of such party.

WIS. STAT. § 805.14(1).

¶10 Regarding our review of a motion to change a jury verdict,

[a]ppellate courts do not upset a jury verdict if there is any
credible evidence to support it. “Weighing testimony and
evaluating credibility of witnesses are matters for the jury.”
In reviewing a jury verdict, “evidence will be viewed in the
light most favorable to the verdict” and courts “search for
credible evidence that will sustain the verdict, not for
evidence to sustain a verdict the jury could have but did not
reach.”

K & S Tool & Die Corp. v. Perfection Mach. Sales, Inc., 2007 WI 70, ¶38, 301
Wis. 2d 109, 732 N.W.2d 792 (citations and quoted sources omitted). Further, the
bar for the Klingers is yet higher here, because on motions after verdict the circuit
court upheld the jury’s challenged finding. See Morden v. Continental AG, 2000
WI 51, ¶40, 235 Wis. 2d 325, 611 N.W.2d 659. We will not overturn the jury’s
verdict in such a case unless “there is such a complete failure of proof that the
verdict must be based on speculation.” Coryell v. Conn, 88 Wis. 2d 310, 315, 276
N.W.2d 723 (1979).

5
No. 2022AP72

B. Analysis

¶11 The Klingers acknowledge, as they must, that the following general
rule applies in Wisconsin negligence cases: “there is nothing inconsistent or
irregular in the form of a verdict” when a party is found negligent, “but such
negligence is not [found to be] causal of the injuries.” See Fondell v. Lucky
Stores, Inc., 85 Wis. 2d 220, 228, 231-32, 270 N.W.2d 205 (1978) (concluding
that there was sufficient evidence to support a jury finding of negligence by
supermarket related to customer’s fall in area where bottle of liquid cleaner had
broken, but also that the jury was “equally free to find that the plaintiff’s evidence
failed to meet the burden of proof as to causation” of the fall resulting from that
negligence). In other words, “the question of causation is usually one of fact for
the jury.” Id. at 230. The Klingers argue, however, that this not the usual case.
They contend that it is the type of case contemplated in Fondell in which a
reasonable jury “could not differ as to a party’s conduct being a substantial factor
to the accident.” See id.

¶12 More specifically, the Klingers contend that case law separate from
Fondell establishes what might be called a per se inadequate-lookout rule in
Wisconsin negligence law governing the issue of causation that they submit
always qualifies as an exception to the general rule contemplated in Fondell.
Under such a per se inadequate-lookout rule, according to the Klingers, whenever
there is a vehicle collision at an intersection and one “party admits his [or her]
failure to lookout” for traffic hazards in approaching and entering the intersection,
then the causation element of negligence is always established as a matter of law.3
3
For purposes of this discussion, we assume without deciding that Masbruch in essence
admitted to failing to keep a proper lookout.

6
No. 2022AP72

The Klingers argue that such a per se inadequate-lookout rule was established in a
trio of opinions issued by our supreme court in the 1950s. See Pfeifer v. Standard
Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952); Oelke v. Earle, 271
Wis. 479, 74 N.W.2d 336 (1956); and Crye v. Mueller, 7 Wis. 2d 182, 96 N.W.2d
520 (1959).

¶13 It is true that these cases establish that a party’s failure to maintain a
proper lookout in an intersection collision case can, depending on the evidence,
constitute a substantial factor in causing a collision as a matter of law. But we
now discuss an additional opinion of our supreme court, Powers, that more
specifically and directly undermines the Klingers’ argument, based on the
particular evidence before the jury in this case and the jury’s answers on the
special verdict.

¶14 In Powers, a driver was slowing a school bus near a school, and was
about to bring it to a stop, when the rear wheels of the bus ran over a child.
Powers, 2 Wis. 2d at 557, 559. Just before the accident, the child had been at or
near the rear of a group of small children who were running next to the bus. Id. at
557, 560. The child “somehow slipped, tripped or was pushed, and fell partly
under the bus.” Id. The jury found that the driver was negligent for failing to
maintain a proper lookout, but also found that the driver’s “negligence was not a
substantial factor in producing the accident.” Id.

¶15 In arguing on appeal that the jury’s causation answer must be
changed, Powers contended “that there is no credible evidence to sustain the jury’s
finding that the negligence of the bus driver … with respect to lookout was not a
substantial factor in causing the injury.” Id. at 558. Our supreme court
summarized with approval the circuit court’s determinations that there was a

7
No. 2022AP72

reasonable evidentiary basis for the jury to find both that: (1) the driver was
negligent for “not keeping a lookout through the glass door to his right, which
would have enabled him to see the children who were abreast of the door”; and
(2) “such negligence was not a substantial factor in causing [the child’s] injury.”
Id. at 560. The court made the following observation regarding the causation
finding:

[T]he jury could properly have concluded that the children
at the front of the pack reached a point beside the glass
door, where [the driver] could have seen them had he
looked to his right, only such a short time before he
actually stopped, that if he had stopped as soon as possible
after he should have seen the children, he might still have
run over [the child].

Id. The supreme court pointed out that the driver had a duty while slowing the bus
in a school yard to look in multiple directions (not only at his mirror for hazards
that might be at or near the one side where the accident occurred) and that “[s]ome
allowance could properly have been made also for reaction time on his part.” Id.
at 560-61.

¶16 Notably, the Powers court observed, using terms similar to those that
the court would later use in Fondell for the same concept: “While negligence in
failing to keep a proper lookout is usually causal, it is not always so, and this is
one of the relatively rare cases where the jury could properly say it was not
causal.” Powers, 2 Wis. 2d at 561.

¶17 Powers remains good law and its specific reasoning applies here.
The supreme court concluded that the jury in Powers could reasonably find that
the bus driver was negligent in failing to keep a proper lookout but could also
reasonably find that the bus would have run over the child even if the driver had
not been negligent in this regard. In the same way, the jury here could reasonably

8
No. 2022AP72

find that Masbruch was negligent in failing to keep a proper lookout but could also
reasonably find that the collision would have occurred even if he had not been
negligent in this regard. In considering causation, the jury may have placed
significant weight on evidence that could have supported reasonable inferences
that Julie was on her phone shortly before the collision and that she ran a red light.

¶18 The Klingers fail to identify a statement in Pfeifer, Oelke, or Crye
that cannot be reconciled with the application of Powers to the circumstances here,
as we now explain.

¶19 In making their first point on this topic, the Klingers emphasize the
following observation by the court in Crye: the obligation of every motorist
approaching an intersection to keep a proper lookout does not disappear “even
though the dominant cause of an ensuing collision be the conduct of the other
driver.” Crye, 7 Wis. 2d at 189. But this merely means that motorists
approaching intersections always have the duty to keep a proper lookout and that
they are not relieved of that duty merely because others are negligent. Crye
certainly does not stand for the proposition advanced by the Klingers, namely, that
in any case in which there is a failure to keep a proper lookout, causality is always
established as a matter of law.

¶20 The Klingers’ reliance on Oelke is also misplaced. Notably, the
evidence in that case included the presence of a “shack” located near an
intersection, and the court strongly implies that any approaching driver had an
obvious need to take the shack fully into account due to its obstruction of sight
lines. See Oelke v. Earle, 271 Wis. at 482-84. Based on the particular evidence in
that case, the court determined that a driver’s admitted failure to keep a proper
lookout was in that case “a substantial factor in producing” a collision. Id. As in

9
No. 2022AP72

Crye, the court in Oelke does not announce a per se rule linking all failures to keep
a proper lookout with causation of all collisions.

¶21 The Klingers emphasize the observation of our supreme court in
Powers that, as quoted above, it will be “relatively rare” in intersection collision
cases for both of the following to be true: (1) there is a supported finding of
negligence for failing to keep a proper lookout; and (2) that negligent act should
not be deemed as a matter of law to have caused the accident.

¶22 The problem with the Klingers’ argument is that they fail to explain
why this case does not belong in the basket of “relatively rare” cases broadly
contemplated in both Fondell and Powers—however common or rare such a
circumstance may be among all negligence cases. The Klingers face an uphill
climb in even attempting to argue that this case could not belong in that basket, in
light of facts that the jury could reasonably have found supporting inferences that
Julie was on her phone shortly before the collision and that she ran a red light.4
4
The Klingers briefly raise as a purportedly separate issue, or sub-issue, the following
argument: a new trial is required because the jury answers were inconsistent in finding Masbruch
negligent but also finding that his negligence was not causative. See Westfall v. Kottke, 110
Wis. 2d 86, 100, 328 N.W.2d 481 (1983) (when jury verdict contains an “inconsistency on the
face of the verdict” that is “irreconcilable,” a new trial is generally required). But the Klingers
fail to advance any rationale under this theory that we have not already resolved against them
based on their concessions and our discussion of Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220,
270 N.W.2d 205 (1978), and Powers v. Joint School Dist., 2 Wis. 2d 556, 87 N.W.2d 275
(1958). In passing, the Klingers assert that questions that the jury posed to the circuit court
during its deliberations “demonstrate[d] juror confusion” and that this purported confusion
supports the Klingers’ inconsistent verdict argument, but they fail to develop a supported
argument to that effect and we discuss that topic no further.

Separately, before leaving this issue, we note with disapproval one statement in the
portion of the Klingers’ brief that addresses this issue. The brief states: “When the trial court
could not find a suitable rationale, it strained to uphold the jury verdict.” We detect no basis in
the record for this challenge to the integrity of the circuit court judge. We remind counsel that
substituting unsupported allegations of bias by circuit courts for proper legal analysis is
unwelcome and risks undermining the credibility of counsel.

10
No. 2022AP72

That is, as noted above, the jury had a reasonable evidentiary basis to determine
that any assumed failure to keep proper lookout was not causative, and this was a
permissible result under the reasoning in Powers.

II. ADMISSION OF MEDICAL RECORD

¶23 The Klingers argue that the circuit court should have granted their
postverdict request for a new trial on liability based on the court’s decision to
admit into evidence a medical record described below. We assume without
deciding that it was error to admit this record and conclude that the assumed error
was harmless.5

¶24 “Pursuant to WIS. STAT. § 805.18(2), the improper admission of
evidence is not grounds for … granting a new trial unless, after an examination of
the entire action, it shall appear that the error ‘affected the substantial rights of the
party’ seeking to reverse the judgment or secure a new trial.” Weborg v. Jenny,
2012 WI 67, ¶68, 341 Wis. 2d 668, 816 N.W.2d 191 “In order for an error to
affect the substantial rights of a party within the meaning of … § 805.18(2), ‘there
must be a reasonable possibility that the error contributed to the outcome of the
action or proceeding at issue.’” Weborg, 341 Wis. 2d 668, ¶68 (quoted source
omitted). “‘A reasonable possibility of a different outcome is a possibility
sufficient to ‘undermine confidence in the outcome.’” Id. (quoted source omitted).

¶25 Our supreme court has explained:

5
Our assumption of error includes both aspects of the medical record that the Klingers
argue were improperly admitted: (1) statements that the medical record attributes to Julie and
(2) statements that may be construed as being attributed to other, unidentified, persons. The
assumed error was harmless regardless of how the medical record was construed in this respect.

11
No. 2022AP72

Most errors are truly harmless.… [However,] when error is
committed, a court should be sure that the error did not
affect the result or had only a slight effect.… When it is
clear that error has been committed, we should be sure that
the error did not work an injustice. The only reasonable
test to assure this result is to hold that, where error is
present, the reviewing court must set aside the verdict
unless it is sure that the error did not influence the jury or
had such slight effect as to be de minimus.

State v. Dyess, 124 Wis. 2d 525, 541-42, 370 N.W.2d 222 (1985).

¶26 Both sides here inadequately cite to the record in addressing the
details of how the jury was exposed to the evidence at issue and in what contexts.
However, our own review of the record reveals that the jury was presented with
evidence that we now describe. The evidence consisted of the following portion
of emergency room “Consult Notes” from Julie’s post-collision treatment:

The patient states that she was driving through the
intersection. The patient should have stopped at the red
light but did not and was hit broadside directly over
driver’s door by a full-size pickup truck going about 30
mile/hour. The patient was belted. Had no air-bag
deployment. The patient did state that she hit her head on
something hard.

¶27 We assume without deciding that it was error for the circuit court to
permit the jury to be exposed to this evidence, but we conclude that the assumed
error did not influence the jury. We agree with each of the following three related
determinations made by the circuit court in addressing postverdict motions, and
we conclude that these three factors together establish that this evidence could not
have made a difference to the challenged result at trial.

¶28 First, the jury heard extensive, direct evidence and argument on the
following questions: Which driver had a green light and which driver had a red
light as they approached and then entered the intersection? The Klingers give us

12
No. 2022AP72

no good reason to think that jurors would have ignored the much more direct
evidence and instead relied on the medical record references to decide these
issues.

¶29 Second, the medical record at issue was, as the circuit court
characterized it, a mere “snippet.” Elaborating on that point, this contested
evidence is on its face ambiguous as to whether Julie told anyone that she had run
a red light or instead whether that allegation came from another unknown source
of unknown reliability (as the Klingers themselves now repeatedly point out, some
of these statements were by “unknown declarants”). Put differently, this evidence
does not have nearly the weight that might reasonably have been attributed to a
hypothetical witness testifying that Julie told the witness after the collision that she
had in fact run a red light. Further, on a related note, our review shows that the
references that the parties made to this evidence at trial were somewhat scattered
and not detailed.

¶30 Third, Julie’s counsel on multiple occasions during trial emphasized
other evidence that would have supported a finding that Julie, from the time of the
collision, had no memory of the circumstances of the collision. Therefore, the
argument to the jury proceeded, it could not be true that Julie told anyone during
the aftermath of the collision that she had run a red light. In their briefing on
appeal, the Klingers themselves emphasize at length the extensive evidence
presented to the jury that would have supported a finding that Julie had no
memory of the circumstances of the collision that she could have related to
anyone.

¶31 In sum, this ambiguous, relatively indirect evidence that was
presented in somewhat scattered fashion, and that was repeatedly countered with

13
No. 2022AP72

evidence undermining an adverse inference for Julie, could not have made a
difference to the challenged result at trial.

III. YELLOW-LIGHT INSTRUCTION

¶32 The Klingers asked the circuit court to give Civil Jury
Instruction 1192 (“the yellow-light instruction”), which provides:

DUTY OF OPERATOR APPROACHING
INTERSECTION WHEN AMBER LIGHT SHOWS

A safety statute provides that an operator facing a
yellow signal shown with or following a green light[] shall
stop before entering the intersection unless so close to it
that a stop cannot be made in safety.

If you find that the yellow or amber light, which
signifies caution, was showing before (operator) entered the
intersection, then (operator) was required to stop unless
(he) (she) was so close to the traffic signal that a stop could
not be made in safety.

WIS JI—CIVIL 1192. The circuit court denied the request for the yellow-light
instruction on the ground that neither party “is claiming that the other had a yellow
light and did not stop,” and that the court did not “even think that the inference can
be made” from the evidence.

¶33 The Klingers argue that the circuit court should have granted their
postverdict request for a new trial on liability based on the court’s decision not to
give the yellow-light instruction. We conclude that the circuit court did not
erroneously exercise its discretion in making this decision based on circumstances
that we describe below.

¶34 “A circuit court has broad discretion to craft jury instructions based
upon the facts and circumstances of the case” “in a way that fully and fairly
informs the jury of the rules of law applicable to the case and that assists the jury

14
No. 2022AP72

in making a reasonable analysis of the evidence.” Smith v. Goshaw, 2019 WI
App 23, ¶9, 387 Wis. 2d 620, 928 N.W.2d 619. “Whether the circuit court erred
by stating the law incorrectly or in a misleading manner is a question of law this
court reviews de novo.” Id.

¶35 The Klingers do not contend that the circuit court misapplied any
legal principle in declining to give the yellow-light instruction. Instead, they
contend that the court erroneously exercised its discretion by unjustifiably taking
from the jury the issue of whether Masbruch was negligent in failing to stop on
yellow, which could have influenced the jury to change the cause verdict.

¶36 We resolve this issue based on arguments by Masbruch that are
consistent with part of the circuit court’s reasoning for its challenged decision and
that rely on the following two additional, related pieces of background.

¶37 First, Masbruch points out that, consistent with the circuit court’s
observation that neither party “is claiming that the other had a yellow light and did
not stop,” the Klingers consented to the jury receiving the following instruction
(“the both-claim-green instruction”):

1190.5 PLAINTIFF AND DEFENDANT EACH
CLAIMS GREEN LIGHT IN THEIR FAVOR

Both parties claim that the green traffic light (or
“Go” signal) was facing the drivers as they proceeded to
cross the intersection in question. It was a physical
impossibility for this to happen, in the absence of evidence
that the lights were not in good working order. It is for you
to determine which driver the green light was facing and
which driver, at that same time, the red light was facing as
each driver proceeded into the intersection.

Masbruch’s point is that it would have been confusing to give the jury two
seemingly contradictory propositions: (1) from the yellow-light instruction, that

15
No. 2022AP72

there was evidence of a potential yellow light violation; and (2) from the both-
claim-green instruction, that the parties were in agreement that one of them had a
green light and the other had a red light (i.e., that neither had a yellow light) at a
respective time before the collision when each could have safely stopped if a
yellow light was showing to that driver.

¶38 Second, Masbruch points out that, consistent with the both-claim-
green instruction, during arguments on postverdict motions, counsel for the
Klingers acknowledged to the circuit court that there had not “ever” been any
“dispute” in the case that, as the court put it in characterizing expert testimony in
the case, “given the layout of the intersection, … it’s an impossibility for there to
be anything other than a red and green light at the time of the collision.”

¶39 In sum, Masbruch argues that it could not have been an erroneous
exercise of discretion for the circuit court to decline to give an instruction that
would have been directly contrary to positions taken by the Klingers at trial,
including the position that entry to the intersection on yellow was “an
impossibility”—risking justifiable jury confusion.

¶40 Faced with this argument on appeal, the Klingers fail to address it in
either their opening brief or their reply brief, which we treat as a concession. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (Appellant’s failure to respond in reply brief to argument made in
response brief may be taken as concession.). If the Klingers could have some
argument that the yellow-light instruction would not have conflicted with the both-
claim-green instruction and the positions of the Klingers in support of that

16
No. 2022AP72

instruction, we would have to attempt to develop such argument. We cannot do
this without abandoning our neutral role.6

CONCLUSION

¶41 For all of these reasons, we affirm the circuit court order entered in
favor of John Masbruch and Wisconsin Mutual Insurance Company based on a
jury verdict in favor of Masbruch and the court’s denial of postverdict motions
filed by the Klingers.

By the Court.—Order affirmed.

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

6
We need not address the waiver arguments on this issue raised by Masbruch and
addressed by the Klingers, given the basis for our resolution of this issue explained in the text.

17