Franz v. Brennan

• Citation: 431 N.W.2d 711,146 Wis.2d 541
• Decision Date: 21 September 1988
• Docket Number: No. 87-2427,87-2427
• Parties: Kay L. FRANZ, Plaintiff-Appellant, * v. Rick M. BRENNAN, Douglas Brennan, Alice Brennan and Blue Cross & Blue Shield United of Wisconsin, Defendants, State Farm Mutual Insurance Company, Defendant-Respondent. Laurie A. OTTO, Plaintiff-Appellant, Warren Otto, Plaintiff, v. Rick M. BRENNAN, Douglas Brennan and Alice Brennan, Defendants, State Farm Mutual Automobile Insurance Company, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Page 711

431 N.W.2d 711

146 Wis.2d 541

Kay L. FRANZ, Plaintiff-Appellant, ^* v. Rick M. BRENNAN, Douglas Brennan, Alice Brennan and Blue

Cross & Blue Shield United of Wisconsin, Defendants,

State Farm Mutual Insurance Company, Defendant-Respondent.

Laurie A. OTTO, Plaintiff-Appellant, Warren Otto, Plaintiff, v. Rick M. BRENNAN, Douglas Brennan and Alice Brennan, Defendants, State Farm Mutual Automobile Insurance Company, Defendant-Respondent.

No. 87-2427.

Court of Appeals of Wisconsin.

Submitted on Briefs June 13, 1988.

Opinion Released Sept. 21, 1988.

Opinion Filed Sept. 21, 1988.

Keith G. Ondrasek and Bonk, Lutz, Burnett & McDermott, Chilton, for plaintiffs-appellants.

Robert L. McCracken and Joan Ravanelli Miller of Nash, Spindler, Dean & Grimstad, Manitowoc, for defendant-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

SCOTT, Chief Judge.

This cause of action arose out of an automobile accident wherein Rick Brennan (Rick) was found causally negligent. His parents, Douglas and Alice Brennan (the Brennans), were held liable for the plaintiffs' damages under the sponsorship statute, sec. 343.15(2), Stats., as Rick was a minor at the time of the accident.

The following issues are raised: (1) whether the trial court erred in finding the evidence insufficient to support an award of punitive damages; (2) whether evidence of the Brennans' wealth was improperly excluded; (3) whether the trial court erred in failing to inform the jury of the availability of insurance coverage for the punitive damages; and (4) whether the evidence is sufficient to support the jury's award for future medical expenses to Kay Franz.

We conclude that: (1) sufficient evidence supports the punitive damages award; (2) the Brennans' wealth was properly excluded; (3) the issue regarding jury instruction was waived; and (4) the evidence supports the amount of future medical expenses awarded by the jury. The judgments are therefore affirmed in part and reversed in part.

FACTS

In December of 1984, Franz was a passenger in the front seat of a vehicle driven by Laurie Otto. Three other passengers were in the back seat. There were also three passengers in the automobile driven by Rick.

While driving eastbound on Highway JJ, Otto noticed Rick's car ahead of her and flicked her headlights. Rick pulled over to the side of the road and Otto pulled abreast and slightly ahead of him. There was some conversation between the occupants of the cars regarding plans for the evening and Otto started to pull away. Jennifer Weimer, a passenger in Otto's car, testified that as they pulled away, she saw Rick leave his car and strike the Otto vehicle with his fist. Lisa Zimmerman, a passenger in Rick's car, testified that Rick "wasn't happy" with Otto and was annoyed at being pulled over.

A short distance from this incident, the occupants of the Otto vehicle noticed Rick's car approaching rapidly from the rear. Otto testified that she was in her own lane of travel and Rick came up straight behind them until the point of impact. The plaintiffs' accident reconstruction engineer estimated the point of impact to be seventeen inches to the right of the centerline. He also estimated Rick's speed to be between 84 and 98 miles per hour and estimated Otto's maximum speed to be 60 miles per hour.

After impact, the Otto vehicle collided with a guardrail on the right side of the road, crossed to the left side, entered the ditch, struck a telephone junction box and rolled over onto its top. Franz testified that while at the scene of the accident, she spoke to Julie Meidl, Rick's girlfriend and passenger at the time and later his wife. Franz testified that Meidl told her that Rick had said, "[T]hat Otto, she thinks she has such a fast car, I'll show her." Both Franz and Otto suffered injuries. Additional facts will be stated as necessary.

PUNITIVE DAMAGES

The first issue is whether the evidence is sufficient to support punitive damages. The jury awarded $1500 in punitive damages, but the trial court dismissed the claim for punitive damages on the grounds that such an award was inconsistent with Brown v. Maxey, 124 Wis.2d 426, 369 N.W.2d 677 (1985), and inconsistent with the physical facts of the case.

Punitive damages may be awarded if the plaintiff proves by clear and convincing evidence that the defendant's conduct was willful, wanton or in reckless disregard of the plaintiff's rights. Id. at 433, 369 N.W.2d at 681. An award of punitive damages will be upheld on appeal if there is any evidence from which the jury could have concluded that the plaintiff met the above burden of proving that the defendant's conduct was outrageous. Id. We must construe the evidence most favorably to the jury verdict. Id.

The defendants take the position that the punitive damages claim must fail because there is a lack of evidence that Rick was under the influence of alcohol, that he deliberately caused the accident, or that he was angry. As to the first two arguments, we note that proof of neither is required to show punitive damages. The plaintiffs sought to show that Rick had been drinking and that the accident was either deliberate or in reckless disregard of the plaintiffs' rights. The latter is sufficient to support an award of punitive damages. Id. at 433-34, 369 N.W.2d at 681-82.

Regarding Rick's anger on the night of the accident, the record shows sufficient testimony from which the jury could infer that Rick's state of mind was agitated. In addition to the facts set out above, there was testimony that he "bumped" fenders with another car earlier in the evening while leaving a parking space and that he was involved in a brief argument at a party during which he had to be physically restrained.

The trial court's conclusion that Brown v. Maxey would not allow punitive damages in this case was premised upon its opinion that Rick's conduct evinced a high degree of negligence but not recklessness. We conclude that sufficient evidence exists from which the jury could conclude that Rick acted in a willful, wanton or reckless manner. Rick's high speed and the point of impact right of the centerline could by themselves indicate a reckless indifference to the plaintiffs' rights. Although much of the evidence was disputed, the question is whether clear and convincing evidence supports the jury's verdict, not whether such evidence supports the opposite conclusion. See Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984). We therefore reverse that part of the trial court's judgment which overturned the jury's verdict on punitive damages.

EVIDENCE OF WEALTH

The next issue is whether the trial court erred when it excluded evidence of the Brennans' wealth. Rulings on admissibility of evidence are within the discretion of the trial court. Chomicki v. Wittekind At a pretrial hearing on this issue, the trial court was presented with the relevant facts. The applicable law was also discussed, including the following principles. In calculating punitive damages, the wealth of the defendant is a factor for consideration. Brown, 124 Wis.2d at 438, 369 N.W.2d at 684. Wisconsin created an exception to this rule in McAllister v. Kimberly-Clark Co., 169 Wis. 473, 173 N.W. 216 (1919), where evidence of wealth was held inadmissible when two defendants were involved. Id. at 475-76, 173 N.W. at 217.

128 Wis.2d 188, 195, 381 N.W.2d 561, 564 (Ct.App.1985). Abuse of discretion occurs when the trial court fails to: (1) examine the relevant facts; (2) apply a proper standard of law; or (3) use a demonstrated rational process. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982).

The Brennans sought to have evidence of their wealth excluded under the McAllister rule or, in the alternative, under a public policy analysis. The Brennans reasoned that the purpose of punitive damages was to punish the wrongdoer; because their liability stemmed from sec. 343.15(2), Stats., ¹ and not any wrongdoing, their wealth should not be considered.

The trial court, although recognizing the validity of the McAllister rule, ruled on the public policy ground and excluded the evidence. We decline to rule on the public policy matter as that is more appropriately left to the supreme court. Cf. State v. Grawien, 123 Wis.2d 428, 432, 367 N.W.2d 816, 818 (Ct.App.1985) . However, we uphold the trial court's exclusion under the McAllister rule. Cf. State v. Alles, 106 Wis.2d 368, 391, 316 N.W.2d 378, 388 (1982) (holding that we will affirm a decision which was right even if based on the wrong reason).

The plaintiffs contend that the present case should be distinguished from the other cases which rely on McAllister. This distinction, they argue, is that the McAllister rule is invoked when there are multiple defendants; here, Rick's conduct is imputed to his parents under sec. 343.15(2), Stats. Therefore, the plaintiffs conclude, there is really only one defendant. ²

This distinction does not persuade us. The justification for the McAllister rule was most clearly stated in Ogodziski v. Gara, 173 Wis. 380, 181 N.W. 231 (1921).

[I]n the case of two or more defendants the reception of such testimony [on their wealth] is error on the ground that evidence as to the financial ability of one affects the amount of punitory damages assessed against all, and hence, since each one is liable for the whole judgment, he may be unjustly mulcted in damages because of the wealth of a codefendant, though he himself may be a poor man.

Id. at 381, 181 N.W. at 231.

Thus, it is the bare fact of joint liability for punitive damages which militates against allowing evidence of wealth. The justification is not premised on how the liability arose--joint tortfeasors, successive tortfeasors, or codefendants through imputation of liability. We see no reason not to follow the McAllister rule as it was most recently followed in Meke v. Nicol, 56 Wis.2d 654, 658-59, 203 N.W.2d 129, 132 (1973...