Coopman v. State Farm Fire and Cas. Co.

• Decision Date: 05 October 1993
• Docket Number: No. 92-3232,92-3232
• Parties: Marty H. COOPMAN, Plaintiff-Co-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY and State Farm Mutual Automobile Insurance Company, Defendants-Third Party Plaintiffs-Respondents, d American Standard Insurance Company, American Family Mutual Insurance Company, Greatway Insurance Company, Wisconsin Physicians Service Insurance Corp., State of Wisconsin Department of Health & Social Services--Division of Health, Mark A. La Fortune, Jeffrey Bostedt, Daniel Ertman, Gerald R. Wusterbarth, Scott Nicholi and Joel Anderson, Defendants, General Casualty Company of Wisconsin and Douglas Williquette, Defendants-Appellants, Richard Nerenhausen, Defendant-Respondent.d
• Court: Wisconsin Court of Appeals

Page 610

508 N.W.2d 610

179 Wis.2d 548

Marty H. COOPMAN, Plaintiff-Co-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY and State Farm Mutual

Automobile Insurance Company, Defendants-Third

Party Plaintiffs-Respondents,

d

American Standard Insurance Company, American Family Mutual

Insurance Company, Greatway Insurance Company, Wisconsin

Physicians Service Insurance Corp., State of Wisconsin

Department of Health & Social Services--Division of Health,

Mark A. La Fortune, Jeffrey Bostedt, Daniel Ertman, Gerald

R. Wusterbarth, Scott Nicholi and Joel Anderson, Defendants,

General Casualty Company of Wisconsin and Douglas

Williquette, Defendants-Appellants,

Richard Nerenhausen,

Defendant-Respondent.d

No. 92-3232.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 7, 1993.

Opinion Released Oct. 5, 1993.

Opinion Filed Oct. 5, 1993.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Marty Coopman appeals a summary judgment dismissing his complaint alleging conspiracy, negligence and aiding and abetting a tort against Richard Nerenhausen and State Farm Fire and Casualty Company and State Farm Mutual Automobile Insurance Company (State Farm). Coopman alleges trial court error because there is a factual dispute whether Nerenhausen participated in a civil conspiracy, withdrew from the conspiracy and caused Coopman's injuries. Because we conclude that there is sufficient proof to raise an issue of fact with regard to Nerenhausen's liability, we reverse the judgment dismissing Coopman's complaint.

This case arises from an incident that occurred in the early morning hours of April 7, 1990, in Oconto County, Wisconsin. Mark LaFortune was parked in the parking lot of the Old Store Pub in the city of Oconto speaking with Jeffrey Bostedt, who was the driver of a second car parked nearby, Nerenhausen, a passenger in the Bostedt vehicle, and other friends. During this conversation, a car driven by Douglas Williquette, in which Coopman was a passenger, drove by and allegedly a passenger in that car made an obscene gesture at the group. Bostedt asked LaFortune if they should chase the Williquette vehicle. Nerenhausen acknowledges that everyone agreed to chase the Williquette vehicle. There was a general agreement that the object of the pursuit was to stop the Williquette vehicle, find out why the obscene gesture had been directed toward the LaFortune and Bostedt vehicles and "kick their ass." It was in anticipation of the pending fight that LaFortune stopped and picked up three friends, Daniel Ertman, Scott Nicholi and Gerald Wusterbarth, prior to commencing the chase. Meanwhile, Bostedt and Nerenhausen gave immediate chase to the Williquette vehicle.

Bostedt was close behind the vehicle when LaFortune caught and passed both the Bostedt and Williquette vehicles. LaFortune and Bostedt attempted to box in Williquette's vehicle in an attempt to force it to stop. Nerenhausen alleges that at some point during these dangerous manuevers, he advised Bostedt to back off and slow down. Bostedt did in fact slow down but continued pursuit of Williquette's vehicle some distance back. Five to ten minutes later, the LaFortune vehicle struck Williquette's vehicle forcing it from the road where it overturned inflicting injuries upon Coopman that rendered him a quadriplegic. At the time of the accident, the Bostedt vehicle was approximately one-quarter to one-half mile behind the other cars and arrived at the accident scene shortly after the accident occurred.

When reviewing an order for summary judgment, we apply the same methodology used by the trial court and decide the matter de novo. In re J.L.H., 149 Wis.2d 349, 354, 441 N.W.2d 273, 275 (Ct.App.1989). A trial court's decision granting summary judgment will be reversed if it incorrectly decided legal issues or if material facts were in dispute. Combined Investigative Servs., Inc. v. Scottsdale Ins. Co., 165 Wis.2d 262, 269, 477 N.W.2d 82, 85 (Ct.App.1991). The methodology prohibits a court from deciding an issue of fact; it must only determine whether a factual issue exists. Town of Janesville v. Rock County, 153 Wis.2d 538, 541, 451 N.W.2d 436, 437 (Ct.App.1989). In testing the sufficiency of the complaint, the court takes all the facts plead by the plaintiff as true and only dismisses the complaint as legally insufficient if it is clear that under no circumstances could the plaintiff recover. Green Spring Farms v. Kersten, 136 Wis.2d 304, 317, 401 N.W.2d 816, 821 (1987). We note, however, that we will not consider factual matters raised for the first time on appeal; our review is confined to the facts in the record before the trial court at the time it decided the motion for summary judgment. Discount Fabric House v. Wisconsin Tel Coopman's complaint against Nerenhausen alleged liability based upon Nerenhausen's participation in a civil conspiracy, his negligence and his aiding and abetting the commission of a tort. The trial court granted Nerenhausen's motion for summary judgment after concluding that the facts indicated he had withdrawn from the conspiracy. It arrived at this conclusion based upon Nerenhausen's alleged comments to Bostedt not to get into the middle of the LaFortune-Williquette maneuvers but to back down.

Co., 117 Wis.2d 587, 591-92, 345 N.W.2d 417, 419 (1984).

Nerenhausen asserts that there are no facts to support a finding he was a member of a conspiracy to commit a tort. We disagree. A civil conspiracy is the combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish by unlawful means a purpose not in itself unlawful. Onderdonk v. Lamb, 79 Wis.2d 241, 246, 255 N.W.2d 507, 509 (1977). Here, the facts indicate unlawful means, a high speed automobile chase, were employed to engage in the unlawful purpose of stopping the Williquette vehicle to "kick ass."

The parties focus on whether Nerenhausen agreed to engage in a conspiracy. "[M]ere knowledge, acquiescence or approval of a plan, without cooperation or agreement to cooperate, is not enough to make a person a party to a conspiracy." Winslow v. Brown, 125 Wis.2d 327, 331, 371 N.W.2d 417, 420 (Ct.App.1985). There must be intentional participation in the transaction with a view to the furtherance of the common design. Id. The record before the trial court includes facts that support a reasonable inference that Nerenhausen intentionally participated in the chase for the purpose of furthering a common design. During his deposition, the following exchange took place:

Q. So after Joel said or Mark said he flipped us off, do you remember who said the next thing? Do you remember somebody saying, "Let's go kick their ass?"

A. Yeah, I think it was Joel that first said that.

Q. Said, "Let's go kick their ass?"

A. Yeah, then everybody kind of agreed.

Q. Said yeah?

A. Yeah.

....

Q. After somebody said let's go and you drove out of the parking lot first, you were going to chase these guys?

A. Um-hum.

Q. Yes?

A. Yeah.

Q. What did you think you were going to do?

A. I thought, personally, that maybe we would chase them for a while, they would get away or whatever, nothing would happen or stop them and probably an argument, maybe a few fists would have been thrown, but you never know. That is basically what I thought. I don't know. (Emphasis added.)

Jeff Bostedt's and Gerald Wusterbarth's depositions also establish everyone's agreement to chase the Williquette vehicle for the purpose of stopping it, confronting the passengers and being there to help LaFortune in the event of a fight. These facts support a reasonable inference that Nerenhausen actively participated in the plan to chase the Williquette vehicle at high speed for the purpose of catching it, stopping it, and fighting the occupants if necessary.

Nerenhausen nevertheless argues that even if he was initially a participant in a conspiracy, the trial court correctly ruled that he had withdrawn from the conspiracy by advising Bostedt to slow down. This presents a factual issue inappropriate for summary judgment determination. Because Wisconsin law on withdrawal from a civil conspiracy is undeveloped, all parties draw on Wisconsin's law of withdrawal from criminal conspiracy. Under sec. 939.05(2)(c), Stats., a person withdraws from a criminal conspiracy when he "voluntarily changes his mind and no longer desires that the crime be committed and notifies the other parties concerned of his withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw." We agree that sec. 939.05(2)(c) is a useful framework Nerenhausen correctly notes that his statements to Bostedt to slow down support a finding that he had withdrawn from the conspiracy. However, this finding is not inevitable. The facts and reasonable inferences drawn from them also support a finding that there was no withdrawal. Assuming Nerenhausen told Bostedt to slow down, the jury might reasonably conclude that this statement was made, and that Bostedt slowed down, not because of his desire to withdraw but because he feared they were dangerously close to the two other cars. While being deposed, Nerenhausen indicated that the reason he and Bostedt continued on after slowing down was because he still wanted to be in the chase. This testimony, and the fact he and Bostedt eventually arrived at the scene rather than stopping the pursuit and going home, supports a reasonable inference that Nerenhausen did not withdraw from the conspiracy. In short, the facts permit competing inferences; whether...