August J. Zywicki v. Artisan and Truckers Casualty 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.
August 17, 2021
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. 2020AP180 Cir. Ct. No. 2017CV690

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

AUGUST J. ZYWICKI,

PLAINTIFF-RESPONDENT,

CITY OF HARTFORD GROUP BENEFIT PLAN,

INVOLUNTARY PLAINTIFF-RESPONDENT,

V.

ARTISAN AND TRUCKERS CASUALTY COMPANY,

DEFENDANT-THIRD-PARTY, PLAINTIFF-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge. Reversed and cause remanded with
directions.

Before Brash, C.J., Dugan and White, JJ.
No. 2020AP180

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. Artisan and Truckers Casualty Company (Artisan)
appeals the trial court order upholding the jury’s award of $50,000 to August
Zywicki for the loss of his future earning capacity after he was injured in an
automobile accident. Artisan argues that the trial court erred when it denied its
motion for directed verdict because there was no credible evidence in the record to
support the damages. We agree, and accordingly, we reverse and remand with
instructions to enter the appropriate judgment described below.

BACKGROUND

¶2 This case arises out of an insurance dispute. According to Zywicki’s
complaint against Artisan, on February 27, 2016, Zywicki was riding as a
passenger in the backseat of his mother’s car, which was being driven by Brian
Ball. The vehicle swerved off the road, struck multiple objects, overturned, and
ejected Zywicki, causing him to suffer serious injuries to his shoulder, ribs, and
thoracic spine. Zywicki was covered by an automobile insurance policy from
Artisan. Although Artisan tendered payment on Zywicki’s claim, the payment
was less than the policy limit. Zywicki asserted that his damages exceeded the
policy limits, and he filed a civil action against Artisan. Zywicki claimed
economic damages from the loss of his future earning capacity because his injuries
from the accident precluded him from joining the Marines.

¶3 The case proceeded to trial in August 2019. Zywicki relied upon a
vocational evaluation in support of his loss of future earning capacity, specifically
based on his desire to join the Marines. Zywicki’s assessment showed that based
on his current education and skills, his scores were consistent with occupations

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including material handler, custodian, warehouse worker, assembler, welder,
mechanic, machine operator, and truck driver. His eight-year income range was
estimated between $20,100 and $31,500 per year, which the evaluator contrasted
with service in the Marines, in which his income would range from $19,900 to
$74,700 per year over the same time period. Zywicki argued his loss of
comparative earnings was between $190,000 and $300,000 over eight years.

¶4 Zywicki testified it was his “dream” and “goal” to join the Marines.
He stated that “it was heart-breaking knowing that” he could never be a Marine or
follow in his great-grandfather and grandfather’s footsteps as Marines. He
admitted that he failed to get a passing score on both of his attempts taking the
ASVAB,1 which is “the test you have to take to be able to get into the Marines or
any military branch.” Zywicki also admitted that in his medical records, he
acknowledged having smoked marijuana prior to the accident; however, he did not
disclose his use on his application to the military out of concern it would
disqualify him. Additionally, Zywicki acknowledged that his childhood medical
records showed a concern about migraine headaches; however, he testified that he
did not have migraines, and he was not taking medications to treat them—
something disputed in his medical records. He also acknowledged that he was
afraid that a history of migraines would bar him from joining the Marines.

¶5 The jury found in favor of Zywicki. It determined fair and
reasonable compensation for his past pain, suffering, and disability; his future
pain, suffering, and disability; and his loss of future earning capacity, for which
the jury awarded $50,000. Artisan and Zywicki each filed motions after the

1
The Armed Services Vocational Aptitude Battery test.

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verdict in September 2019. Zywicki moved the trial court to increase the verdict
amounts for past and future pain and suffering.2 Artisan moved the court for a
directed verdict dismissing Zywicki’s claim for loss of future earning capacity or
for the court to change the jury’s answer on the loss of future earning capacity
from $50,000 to $0. The trial court denied the motions in full in October 2019.

¶6 Artisan appeals. Additional relevant facts are included below.

DISCUSSION

¶7 Artisan argues that the jury’s award of $50,000 for loss of future
earning capacity was not based on any credible evidence. Artisan asserts that the
trial court erred when it denied its motion for directed verdict dismissing
Zywicki’s claim for the loss of future earning capacity because the trial record did
not support such an award. Additionally, Artisan argues that the trial court erred
when: (1) it denied Artisan’s motion to change the jury’s answer for the amount
of damages for loss of future earning capacity on the special verdict; (2) it
overruled Artisan’s objection to testimony that Zywicki suffered a loss of earning
capacity due to his inability to join the Marines; and (3) it instructed the jury on
the claim of loss of future earning capacity. Because we conclude that reversal is
warranted on the order denying the directed verdict, we decline to address
Artisan’s additional arguments. “An appellate court need not address every issue
raised by the parties when one issue is dispositive.” Barrows v. American Fam.
Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508.

2
Zywicki does not appeal the denial of his motion to increase the awards for past and
future pain, suffering, and disability.

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¶8 “A motion for a directed verdict challenges the sufficiency of the
evidence.” Legue v. City of Racine, 2014 WI 92, ¶137, 357 Wis. 2d 250, 849
N.W.2d 837; see also WIS. STAT. § 805.14(4), (5)(d) (2019-20).3 The trial court
may not grant a motion challenging sufficiency of the evidence “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.”
§ 805.14(1).

¶9 On appeal, we search the record for facts to uphold the jury’s
verdict. Marquez v. Mercedes-Benz USA, LLC, 2012 WI 57, ¶48, 341 Wis. 2d
119, 815 N.W.2d 314. We will only set aside the jury’s verdict “when there is no
evidence in its support, or, if there be some slight evidence in its support, still the
great weight of the evidence to the contrary is so strongly reinforced by all
reasonable probabilities and inferences as to be overwhelming.” Slam v. Lake
Superior Terminal & Transfer Ry. Co., 152 Wis. 426, 432, 140 N.W. 30 (1913).
We will affirm the trial court “unless the record reveals that the [trial] court was
‘clearly wrong.’” Legue, 357 Wis. 2d 250, ¶138 (citation omitted).

¶10 Our examination of the record shows that the trial court was “clearly
wrong” when it denied Artisan’s motion for directed verdict because there is no
credible evidence in the record to support the jury’s award of $50,000 for loss of
future earning capacity. The jury may not “speculate” when it determines a
damages award for loss of future earning capacity. See Ianni v. Grain Dealers

3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Mut. Ins. Co., 42 Wis. 2d 354, 364, 166 N.W.2d 148 (1969) (citing Ghiardi,
James D., PERSONAL INJURY DAMAGES IN WISCONSIN (1964)). The injured party
bears the burden “to establish to a reasonable certainty the damages sustained[.]”
Id.

¶11 The record reflects Zywicki’s claim for economic damages for loss
of future earning capacity was based solely on his inability to join the Marines
after he was injured in the accident.4 Artisan argues that Zywicki was not eligible
to join the Marines at the time of the accident—he had a history of migraine
headaches, he had a history of using marijuana, and he had not passed the ASVAB
after two attempts. In his post-trial briefing, Zywicki concedes that the jury award
of $50,000 for his loss of future earning capacity could not have been based on his
lost opportunity to become a Marine because the award amount had no connection
to the expert testimony on his potential income as a Marine.5

¶12 “Damages for impaired earning capacity are generally arrived at by
comparing what the injured party was capable of earning before and after the time
of the injury.” Klink v. Cappelli, 179 Wis. 2d 624, 630, 508 N.W.2d 435 (Ct.
App. 1993). Without a showing of evidence “relating to earning capacity before

4
Zywicki testified that that he realized that he was making an economic claim associated
with his inability to become a Marine. Further, he testified about the psychological effect of
losing his lifelong dream.
5
In post-trial briefs on the motions after the verdict, Zywicki acknowledged that Artisan
“is right, the $50,000.00 award does not comport in any way with the numbers sought had he
been able to become a Marine.” Zywicki argued that without the intervening accident, he could
have become eligible to join the Marines by applying for a waiver on his headaches and self-
admitted (and uncharged) drug use and by retaking the test; therefore, it was proper for the trial
court to instruct the jury on his loss of future earning capacity for his loss of military service. As
our decision rests on the directed verdict issue, we do not address the jury instructions, and we
accept Zywicki’s concession that the award was not based on his loss of military service.

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and after an injury,” the jury could only impermissibly speculate “as to the amount
of lost earning capacity.” Id.

¶13 Although Zywicki offered the vocational evaluation to compare his
loss of earning between the general labor positions he is qualified to perform and
his service in the Marine Corps, Artisan asserts it shows that Zywicki did not
suffer a diminution as a result of the accident. Artisan contends that the vocational
evaluation did not quantify any loss of future earning capacity other than the loss
of military service. Zywicki proffered no evidence that his injury will preclude
him from any area of employment that he is otherwise capable of entering, given
his level of intelligence and educational background. Artisan asserts there is no
difference in Zywicki’s earning capacity before and after the accident; therefore,
there is no credible evidence to support the jury’s finding.

¶14 Zywicki argues that he offered evidence to support his explicit
theory of loss of future earning capacity as a Marine, as well as an implicit theory
that his injuries would cause loss of future earning capacity in the general labor
market. Zywicki asserted that the jury may have awarded him damages of $1,000
a year for his fifty years of remaining time in the work force, based on evidence
that he would have pain in his back, which might limit his ability do heavy lifting
and stretching.

¶15 Zywicki further argues that evidence of his loss of earning capacity
in the general labor market included his permanent spinal deformity, which causes
pain and interferes with his ability to perform certain tasks. In general, evidence
of permanent injury alone “is not sufficient to establish a loss of earning

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capacity.”6 See Ianni, 42 Wis. 2d at 363. Zywicki had the burden to establish
evidence that would allow “the jury to estimate with reasonable probability” what
amount of money would fairly compensate him for his loss of future earning
capacity. Schulz v. St. Mary’s Hosp., 81 Wis. 2d 638, 657, 260 N.W.2d 783
(1978). Zywicki argues that Ianni and Schulz are not applicable because in those
cases, the plaintiffs failed to provide sufficient evidence to compare the injured
worker’s earning capacity before and after the accident; however, here, Zywicki’s
only quantifying evidence relies upon a comparison with earning capacity in the
Marines. Therefore, we conclude that Zywicki has failed to satisfy his burden.
There were no evidentiary facts that would allow the jury to estimate Zywicki’s
loss with reasonable probability; therefore, this award was mere speculation and
conjecture. Moreover, our examination of the record shows that there is no
credible evidence to support the jury’s award for loss of future earning capacity in
the general labor market.

CONCLUSION

¶16 Because we conclude that the record reflects no credible evidence to
support the jury’s award for loss of future earning capacity, the trial court erred
when it denied Artisan’s motion for directed verdict on this issue. Therefore, we
reverse the trial court’s judgment against Artisan in the amount of $88,428.85,
which includes the award for $50,000 for loss of future earning capacity, and

6
“[E]vidence of a permanent injury may be sufficient in itself for the inference of a loss
of earning capacity where the nature of the injury by common knowledge disables the plaintiff
from performing the only type of work he or she is fitted to do….” Ianni v. Grain Dealers
Mut. Ins. Co., 42 Wis. 2d 354, 363, 166 N.W.2d 148 (1969).

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remand to the trial court with directions to order judgment against Artisan in the
amount of $38,428.85.

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

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

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