News from Around the State: Trials and Verdicts

WDC Journal Edition: Spring 2020


Nadine Reyes, et al. v. Innovative Exteriors, L.L.C., et al.

Milwaukee County Case No. 17-CV-13213

January 2020

Facts: Plaintiff and her employer, Menard Inc. (self-insured for workers compensation), brought suit against Innovative Exteriors and its insurer, Acuity, for a slip-and-fall on ice that occurred in December of 2014. Reyes sustained a severe elbow injury requiring two surgeries.

Innovative was the snowplowing contractor hired by Menards to plow and salt the parking lot at its West Milwaukee store. Plaintiffs alleged Innovative failed to properly salt the parking lot, resulting in Reyes slipping and falling on her way into work.

Issues for Trial: Innovative and Acuity contested liability, arguing that the contract called for two inches of snow to trigger the duty to salt, which the weather records demonstrated had not occurred. Furthermore, the accident was due to Menard’s failure to properly inspect its parking lot and Reyes’ own negligence. The parties stipulated to medical bills of $59,112.53 and wage loss of $17,818.31.

At Trial: At trial, plaintiffs sought an additional $175,000 for pain and suffering. The jury found no negligence on Innovative, 90% on Menards and 10% on Reyes.

Plaintiff’s Final Demand: $100,000

Defendant’s Final Offer: $50,000

Verdict: $0

For more information, please contact Thomas J. Binder at binder@simpsondeardorff.com.

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Thomas G. Pierick, et al. v. Rural Mut. Ins. Co., et al.

Dane County Case No. 18-CV-1644

November 2019

Facts: On October 4, 2016, before daybreak, Tom Pierick collided with several black beef cattle on Highway 80 near Cobb, Wisconsin. Mr. Pierick sustained an L1 burst fracture and several broken ribs in the accident. The evening or early morning hours before the accident, approximately 30 beef cattle escaped from the CR Bishop farm in Cobb, Wisconsin. A post-accident investigation indicated that the cattle were able to work open a chained gate and two sliding doors to escape from the feed lot.

Issues for Trial: The parties stipulated to the plaintiff’s injuries and corresponding damages. Liability was challenged.

At Trial: Plaintiff asked the jury to find C.R. Bishop negligent and asked for approximately $350,000 at trial. C.R. Bishop argued that its employees exercised ordinary care in confining its cattle. The jury agreed with C.R. Bishop and found that C.R. Bishop was not negligent. For damages, the jury awarded $230,000.

Plaintiff’s Final Pre-Trial Demand: $200,000

Defendant’s Final Pre-Trial Offer: $40,000

Verdict: $0

For more information, please contact Paul D. Curtis at pcurtis@axley.com.

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Rebecca L. Gruenewald, et al. v. Ali Amoco Inc., et al.

Milwaukee County Case No. 17-CV-2393

October 2019

Facts: Plaintiff sustained a broken ankle after a slip-and-fall accident on slush at a gas station on January 14, 2016. Plaintiff alleged general negligence and safe place claims for failure to maintain premises and inadequate safety policies. The gas station argued that the condition of the premises and its wintertime maintenance policies were reasonable.

Issues for Trial: Liability was contested. Plaintiff sought damages for past and future pain, suffering and disability only. Plaintiff waived her claim for past medical expenses and did not assert a claim for future medical expenses.

At Trial: Plaintiff asked the jury for $375,000. The defense suggested $11,000-$22,000. The jury found no negligence on any party.

Plaintiff’s Final Pre-Trial Demand: $200,000 (statutory offer of settlement)

Defendant’s Final Pre-Trial Offer: $30,000 (statutory offer of judgment)

Verdict: $0

For more information, please contact Joseph M. Mirabella at mirabella@simpsondeardorff.com.

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Thomas Jones, et al. v. Am. Fam. Ins.

Walworth County Case No. 17-CV-3

October 2019

Facts: This was an uninsured motorist (UM) case. The lawsuit involved a motor vehicle accident that occurred when the plaintiff rear-ended an excavator driven by Walworth County employee, Dennis Jacobs. The County, its insurer, and Mr. Jacobs were dismissed on immunity grounds following a successful motion for summary judgment before trial. The pleadings were amended to assert a UM case against American Family. Plaintiff claimed that Mr. Jacobs was negligent because he was operating a 40,000 pound, slow moving vehicle (15 mph top speed) on a highway with a posted speed limit of 70 mph. They argued that he was negligent for driving the excavator half on the shoulder and half into the right lane of traffic on eastbound Highway 12 in Geneva. Plaintiff claims he never saw the excavator before the crash because the glare of the sun camouflaged it. The evidence showed that plaintiff never reduced his speed from the posted speed limit of 70 mph when the sun got in his eyes and therefore, the defense argued that he was negligent. Plaintiff sustained significant injuries in the accident, as well as lost wages.

Issues for Trial: The parties stipulated to damages at the UM limit of $150,000 and tried liability.

At Trial: The jury returned a verdict finding both plaintiff and Jacobs casually negligent. They allocated 72.5% fault to the plaintiff and 27.5% to Jacobs, resulting in a defense verdict.

Verdict: $0

For more information, please contact Megan L. McKenzie at mmckenzi@amfam.com.

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Robert Stewart v. Rural Mut. Ins. Co.

Walworth County Case No. 18-CV-276

October 2019

Facts: This case arose out of a water leak from a plumbing component in the second-floor bathroom of a vacant dwelling owned by the plaintiff. The defendant issued a policy of homeowners’ insurance for the subject dwelling, which excluded insurance coverage if the cause of the water leak was wear and tear and/or if the water leak had been occurring for a matter of weeks from within a plumbing system. While investigating the claim, the insurer retained experts who respectively opined that the cause of the water leak was age-related wear and tear, and that the water leak very likely first began three to five weeks prior to discovery. The insurer denied coverage on the basis of the exclusions. Instead of disputing the denial, plaintiff razed the dwelling and filed suit alleging that the insurer breached the insurance contract when it unjustifiably refused to pay. Plaintiff demanded the full value of the dwelling.

Issues for Trial: During motions in limine, the court significantly limited the plaintiff’s damages by ruling that, in the event this was a covered loss, the policy only obligates the insurer to pay the reasonable cost to repair that part of the dwelling that was damaged by the water infiltration. The court also limited the plaintiff’s ability to elicit expert testimony regarding the reasonable cost of repair because of violations of the court’s scheduling order. The court ultimately ruled that the plaintiff could elicit expert testimony regarding the cost of repair only in rebuttal to the defense expert retained to opine as to the reasonable cost of repair.

At Trial: Plaintiff introduced evidence regarding his discovery of the water infiltration. The plaintiff attempted to introduce evidence on the full value of the residence, which the court deemed inadmissible. The plaintiff also attempted to introduce evidence of the cost of repair in his case-in-chief, which the court deemed in violation of its order on motions in limine. At the end of the first day of trial, the plaintiff rested his case having introduced no evidence as to the cost of repair in the case-in-chief. Because the plaintiff had not met his burden on damages, the defense moved for a directed verdict in favor of the defendant insurer, which was granted.

Verdict: $0

For more information, please contact Christine M. Rice at rice@simpsondeardorff.com.

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Marla Slowey, et al. v. The Coffee Pot LLC, et al.

Kenosha County Case No. 17-CV-1152

September – October 2019

Facts: Plaintiff alleged she fractured her pinky finger while attempting to exit the Coffee Pot’s front door. She claimed that a gust of wind from inside the restaurant blew open the restaurant’s front door, pulled the door away from her, and caused her pinky to fracture. There were no witnesses to the alleged event. Plaintiff had previously entered the Coffee Pot that same day, using the same door, without issue.

Plaintiff alleged that the Coffee Pot was negligent in choosing a door unsuitable for the restaurant and in violation of the safe place statute. Plaintiff retained a local construction company owner to testify that the door was not commercial grade, and was improper for a restaurant serving nearly 400 customers per day. However, the door in question was not in violation of any building codes or regulations.

Defendants retained a mechanical engineer who opined that the door met all building codes. The engineer also provided a biomechanical analysis and testified that the type of fracture plaintiff sustained could not have been caused by a door blowing away from her. Plaintiff’s treating physician testified that the fracture could occur in this manner.

Issues for Trial: Liability and causation were contested.

At Trial: Plaintiff asked the jury for $50,000. The jury awarded no damages and found no negligence and no violation of the safe place statute.

Plaintiff’s Final Pre-Trial Demand: $40,000

Defendant’s Final Pre-Trial Offer: $25,000

Verdict: $0

For more information, please contact Austin Borton at austin@jeffreyleavell.com.

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Rural Mut. Ins. Co., et al. v. Mid-State Equip. Group LLC, et al.

Washington County Case No. 17-CV-255

September 2019

Facts: Plaintiff serviced his John Deere Chopper at Mid-State Equipment over the winter of 2014-15. The following June, after completing the first crop of hay with the Chopper and beginning to chop the second crop, plaintiff’s Chopper caught fire. Experts determined that the origin was the right-hand blower bearing assembly. Plaintiff alleged that during the winter service, Mid-State technicians manipulated the right hand blower bearing assembly given entries found on the invoice for the work performed. Defendants, however, denied manipulating that bearing assembly and the invoice had erroneous entries.

Issues for Trial: At trial, liability was contested but the parties stipulated to damages. Plaintiff alleged that based on the way in which the bearing assembly failed, Mid-State employees must have manipulated the assembly and that was further evidenced by the invoice for the work performed that previous winter. Mid-State denied the allegations based on their recollection of not performing nearly a day’s worth of work, explaining that the invoicing system had an error, and presented expert testimony confirming the bearing assembly was in factory settings when the failure occurred.

At Trial: Plaintiff asked the jury for $337,697. The jury awarded no damages and found no negligence.

Plaintiff’s Final Pre-Trial Demand: $295,000

Defendant’s Final Pre-Trial Offer: $65,000

Verdict: $0

For more information, please contact Adam M. Fitzpatrick at fitzpatricka@corneillelaw.com.

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Donna J. Ehlert, et al. v. State Farm Mut. Auto. Ins. Co., et al.

Outagamie County Case No. 18-CV-155

August 2019

Facts: On March 31, 2015, Plaintiff Donna Ehlert brought her vehicle to a stop for a bus. Defendant Brice Babcock, then 17, was briefly distracted by telling a friend to put on her seat belt and was not able to stop in time for the stopped Ehlert vehicle. Impact was minor with only a license plate imprint of the defendant's vehicle pressed into the bumper of plaintiff's vehicle.

Plaintiff claimed neck, shoulder, upper back and low back pain, with initial physical therapy, personal massage therapy and ultimately pain management with injections.

Issues for Trial: The parties stipulated to liability.

At Trial: Plaintiff counsel asked the jury to award past medical expenses of $32,311.47, past pain and suffering of $30,000-$50,000, future medical expenses of $12,500, and future pain and suffering “something less than past pain and suffering, you decide.”

The defense argued that plaintiff had prior unresolved chronic neck issues from other unrelated motor vehicle accidents, had no pain complaint to the responding officer at the scene with minimal property damage, had four months of post-accident physical therapy with good resolution of symptoms, and then a ten-month gap before restarting physical therapy and seeing a pain management doctor for injections. During the ten month gap, she had seen other practitioners for other items, but never mentioned any neck issues.

The defendants argued that, at most, plaintiff was entitled to four months of physical therapy ($5,799.67), suggested a past pain and suffering award of $500 or less, and nothing for future medical or pain and suffering.

The jury awarded $5,800.00 in past medical expenses and nothing else.

Plaintiff’s Final Pre-Trial Demand: $85,000

Defendant’s Final Pre-Trial Offer: $1,500 + $10,000 med pay lien waiver

Verdict: $5,800

For more information, please contact Heather L. Nelson at hnelson@eversonlaw.com.

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Mark F. Meisner, et al. v. State Farm Mut. Auto. Ins. Co., et al.

Brown County Case No. 17-CV-1409

July 2019

Facts: On October 26, 2014, State Farm's insured (subsequently deceased due to unrelated causes and not named as a party) fell asleep behind the wheel, crossed the centerline and impacted the truck being driven by Plaintiff Mark Meisner, with Denise Meisner as his passenger (both in their 50s). Denise claimed a left shoulder injury with an injection and physical therapy. Mark claimed carpal tunnel syndrome leading to bilateral carpal tunnel release surgeries, permanent aggravation of pre-existing degenerative neck issues (long history of chiropractic care, but no visits within four years before the accident) with headaches and occasional low back pain. He also claimed he had to reduce his work schedule (auto body mechanic) from four days a week to three days due to pain when looking up and when using his hands.

Issues for Trial: The parties stipulated to liability. The parties also stipulated to Denise’s economic damages ($9,295.40 in medical expenses and $863.18 in lost wages).

State Farm’s exposure was capped at its $100,000 policy limit. Trumbull Insurance had a UIM Policy of $250,000 with a reducing clause, which should have left it with exposure of $150,000. Trumbull elected not to have an attorney attend trial (even though an attorney participated in discovery and attended video trial depositions of medical experts) and agreed to be bound by the judgment.

At Trial: In addition to medical expenses and lost wages, Denise Meisner asked the jury for $30,000-$35,000 for past pain and suffering and $10,000 for future pain and suffering. Mark Meisner asked the jury for $37,122.00 in past medical expenses and mileage, $20,800.00 in past wage loss, $12,482.40 to $14,201.60 in future medical expenses, $30,000.00 in future wage loss, $150,000-$200,000 for past pain and suffering (“If I say $250,000, is that enough? If I say $500,000, is that too much?”), and future pain and suffering with no specific number but “less than the past number.” Plaintiff did not suggest a number for Denise's loss of society and companionship.

The defense asked the jury to award Denise $2,000-$3,000 for past pain and suffering and $500-$1,000 for loss of society and companionship, and Mark $3,438.32 for past medical expenses, $2,880.00 for past wage loss, and suggested $10,000-$15,000 for past pain and suffering.

The jury awarded Denise $5,000 for past pain and suffering and $35,000 for loss of society and companionship. It awarded Mark $20,000 for past medical expenses and mileage, $13,350.00 for future medical expenses, $16,224.00 for past wage loss, $39,780.00 for future wage loss, $200,000 for past pain and suffering, and $100,000 for future pain and suffering.

The jury advised counsel after verdict that they did not find the carpal tunnel surgeries related. Despite no clear sign of objective injury, the jury felt that based on the fact that there had been no neck complaints in the four years before the accident (despite a history of chiropractic treatment), Mark’s life had changed in a significant manner as a result of the accident. Several family members and friends testified that he was not the same active, helpful guy he had been, and his hobby of working on cars in his spare time had been significantly reduced.

On Appeal: Plaintiff Mark Meisner requested and ultimately was granted a judgment for the entire $250,000 UIM policy limit against Trumbull (not applying the reducing clause) since Trumbull did not appear at trial and did not prove their policy limits at trial. This issue is currently on appeal.

Plaintiff’s Final Pre-Trial Demand: $100,000

Defendant’s Final Pre-Trial Offer: $11,000

Verdict: $100,000

For more information, please contact Heather L. Nelson at hnelson@eversonlaw.com.