Bastman v. Stettin Mut. Ins. Co. of Marathon County

Decision Date04 December 1979
Docket NumberNo. 76-709,76-709
Citation285 N.W.2d 626,92 Wis.2d 542
PartiesArlyn BASTMAN and Judy Bastman, his wife, Plaintiffs-Appellants, v. STETTIN MUTUAL INSURANCE COMPANY OF MARATHON COUNTY, Defendant-Respondent, Jerome Kaiser and Stratford State Bank of Stratford, Wisconsin, Defendants.
CourtWisconsin Supreme Court

Cwayna, Novitzke, Byrnes, Gust & Williams, Amery, on brief, for plaintiffs-appellants.

W. Thomas Terwilliger and Terwilliger, Wakeen, Piehler, Conway & Klingberg, S. C., Wausau, on brief, for defendant-respondent.

DAY, Justice.

This is an appeal from a judgment dismissing, on the merits, plaintiffs' complaint for recovery for a fire loss under a town mutual fire insurance policy.

The principal question on appeal is: Was there credible evidence that defendant Stettin Mutual Insurance Company of Marathon County was "negligent in the manner in which they handled the insurance coverage on the Bastman property?"

The trial court ruled on motions after verdict that the insurance company was not negligent. We agree and affirm.

This suit was instituted by Arlyn Bastman and Judy Bastman, his wife, to recover for damage to buildings owned by them resulting from a fire on their property. The defendant, Stettin Mutual Insurance Company, had issued a five year fire insurance policy covering this property on May 25, 1972. The insurance company refused to pay the claim after the Bastmans filed a proof of loss on the theory that the policy was suspended at the time of the loss because the Bastmans had not paid the first premium due on the policy.

Upon trial of the case, the jury found Stettin Mutual Insurance Company negligent in handling the insurance coverage and that this negligence was the sole cause of the Bastmans' loss. The jury determined the loss to be $8,400.00.

The insurance company made motions after verdict to change the jury's answers to the negligence and causation questions and to dismiss the complaint. In an opinion dated January 27, 1977, the trial judge granted the motion and on February 16, 1977, judgment was entered dismissing the Bastmans' complaint with prejudice. Appeal is taken from that judgment.

On July 2, 1973 at approximately 6:00 a. m., a fire destroyed a barn and damaged two silos owned by Arlyn and Judy Bastman.

The Bastmans had applied for, and received a fire insurance policy on this property on May 25, 1972 from the Stettin Mutual Insurance Company. The insurance policy, if effective at the time of this fire, would have covered this loss.

Jerome Kaiser, the insurance agent who drew up the policy for the Bastmans, testified that he discussed the billing practice of Stettin Mutual with Arlyn Bastman at the time he completed the application. Kaiser told Bastman that he would not be billed until October of 1972 but that coverage would begin as of the date of the application, May 25, 1972. The Bastmans wanted a policy which they could pay in the fall.

The Stratford State Bank held a mortgage on the insured property. The terms of the mortgage required that the property be insured against loss by fire. The Bank received the original copy of the insurance policy and the Bastmans and Jerome Kaiser, each received a copy of the declaration page.

During the last week of September, 1972, the insurance company began to send out notices of assessment to its policyholders. Payment of the assessment was due by October 31, 1972. The Bastmans testified on direct examination that they did not receive a notice of assessment that year although Judy Bastman, said in a deposition read into the record that they did receive one notice in 1972. The insurance company normally would send out two more notices if payment was not received on time from a policyholder.

Mrs. Bastman testified that sometime during November, 1972 Mr. Kaiser called her and told her to send in a check for $66.00 payable to Stettin Mutual. Kaiser said he did not recall ever having the conversation with her, although it was possible that he may have made the call. The records of the company showed that the assessment actually due was $52.03.

The jury found that the Bastmans mailed a check to the company for $66.00.

The insurance company records did not show that payment had been made. The Bastmans did not receive their check back, cancelled or otherwise.

Judy Bastman testified that in the spring of 1973 she asked Mr. Kaiser over the phone whether they had insurance coverage on the barn and silos. He told her that they did and that there was nothing to worry about. Mr. Kaiser testified that the only conversation he had with the Bastmans in the spring of 1973 was with Arlyn Bastman. He said that Mr. Bastman asked him if the check that they mailed to Stettin Mutual was for the buildings down the road. Mr. Kaiser testified that he told Mr. Bastman: "It would have to be because you have no other insurance with Stettin Mutual."

When the fire occurred in July of 1973, the jury found payment on the policy had not been received by Stettin Mutual. In October, 1973 and again in October 1974 notices of assessment were sent to Arlyn Bastman on the policy. His attorney sent in the check in 1973 but it was returned by the insurance company. The company, however, processed the 1974 check, though it contended that this was merely an error, and the company returned the money to Arlyn Bastman. In 1975, the insurance company formally cancelled the insurance policy.

The case was tried to a jury in November, 1976. The plaintiffs proceeded on two theories of recovery, one based on negligence and one based on contract. They instituted suit originally against the insurance company, the mortgagee bank, and the insurance agent, Jerome Kaiser. They released the bank prior to trial for a settlement of $250.00. At the close of the plaintiffs' case they released the insurance agent for $1,100.00. The sole remaining defendant was the insurance company.

A special verdict was submitted to the jury. The jury was asked whether Stettin Mutual Insurance Company was negligent in the manner in which it handled the insurance coverage on the Bastman property, and whether this was a cause of the damage resulting from the fire. The jury answered both questions in the affirmative. On defendant's motions after verdict the trial judge changed the answers to the negative and dismissed the complaint.

After a jury verdict is returned, any party may make a motion in the trial court to change an answer in the verdict on the grounds of insufficiency of the evidence to sustain the answer given. Sec. 805.14(5)(c), Stats., (1975). 1 The test for sufficiency of the evidence to support a verdict is found in sec. 805.14(1), Stats., (1975) which provides:

"805.14. MOTIONS CHALLENGING SUFFICIENCY OF EVIDENCE; MOTIONS AFTER VERDICT. (1) Test Of Sufficiency Of Evidence. 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."

If there is any credible evidence which under any reasonable view, fairly admits an inference that supports a jury's finding, neither the trial court nor this Court should change that finding. Rodenkirch v. Johnson, 9 Wis.2d 245, 248, 101 N.W.2d 83 (1960); Jacobs v. Stack, 63 Wis.2d 672, 676, 218 N.W.2d 364 (1974). This requires that the evidence be viewed in the light most favorable to support the verdict. St. Paul Fire & Marine Ins. Co. v. Burchard, 25 Wis.2d 288, 293, 130 N.W.2d 866 (1964). "If there is credible evidence which supports a jury verdict, the action of a trial court in changing a jury verdict on the ground that it must be changed as a matter of law '. . . will be set aside on appeal.' " Smith v. Flash City Transit Co., 66 Wis.2d 595, 600, 225 N.W.2d 481, 483 (1975); See also May v. Skelley Oil Co., 83 Wis.2d 30, 35, 264 N.W.2d 574 (1978).

The sole issue presented by the parties on this appeal is whether the trial court was correct in its determination that there was no credible evidence in the record that the Stettin Mutual Insurance Company was negligent in its handling of the insurance coverage on the Bastman property.

Stettin Mutual is a town mutual insurance company. The statutes govern both the manner in which assessments are levied by town mutuals as well as the consequences of a failure to pay an assessment when it falls due. Sec. 202.11(4), Stats., (1971) 2 provides:

"202.11. Assessments; Notices; Nonpayment; Borrowing Money. . . . (4) Every member who shall fail to pay his assessment within the time specified in the notice sent to him shall pay to such corporation a fine of 2 per cent of the amount of such assessment for each week or part thereof during which the same shall remain delinquent, and no payment shall be made by the company upon the policy of any member if at the time he shall suffer a loss he shall be in default and shall have failed to pay his assessment prior to the expiration of 30 days from the time limited in said notice."

This Court considered the effect of this provision in Von Uhl v. Trempealeau County Mut. Ins. Co., 33 Wis.2d 32, 146 N.W.2d 516 (1966). Nonpayment of assessments "suspends" the insurance coverage provided in the policy. No payments on the policy can be made for losses incurred during the period of suspension. Notice must be given prior to cancellation of the policy but there is no requirement under the statute for notice of suspension. Id. at 39, 146 N.W.2d 516.

The timely payment of the assessment by the insured puts a member's policy in effect for the coming year. Id. at 38, 146 N.W.2d 516. It is argued by Stettin Mutual that when it did not receive the Bastmans' check the fire insurance policy was...

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