Kubichek v. Kotecki, 2009AP2331.

Decision Date24 March 2011
Docket NumberNo. 2009AP2331.,2009AP2331.
Citation2011 WI App 32,332 Wis.2d 522,796 N.W.2d 858
PartiesJohn P. KUBICHEK, Sr., Plaintiff–Respondent–Cross–Appellant,Marinette County Department of Health and Human Services, Involuntary–Plaintiff,v.Jay KOTECKI, Defendant–Appellant–Cross–Respondent,†Wisconsin Mutual Insurance Company, ABC Insurance Company and DEF Insurance Company, Defendants.
CourtWisconsin Court of Appeals


On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Claude J. Covelli and Andrew B. Hebl of Boardman, Suhr, Curry & Field LLP, Madison, and Jeffrey J. Gilson of Kaftan, van Egeren & Gilson SC, Green Bay.On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the brief of Michael P. Konz and Erik L. Fuehrer of Gabert, Williams, Konz & Lawrynk, LLP, Appleton.Before HOOVER, P.J., PETERSON and BRUNNER, JJ.PETERSON, J.

Jay Kotecki appeals a judgment, entered on a jury verdict finding him negligent for injuries sustained by John P. Kubichek, Sr. Kotecki argues: (1) no credible evidence supports the jury's negligence verdict; (2) public policy precludes Kubichek's recovery; (3) a new trial is necessary in the interest of justice; and (4) Kubichek's claim must be dismissed based on the doctrine of accord and satisfaction. We consider Kotecki's arguments nearly frivolous. We affirm on the appeal.

¶ 2 Kubichek cross-appeals, arguing he is entitled to double costs and interest under Wis. Stat. § 807.01.1 The trial court concluded Kubichek was not entitled to double costs and interest because his statutory offer of settlement was ambiguous and therefore invalid. We agree that Kubichek's offer was ambiguous. However, we conclude Kotecki's insurer, Wisconsin Mutual Insurance Company, had a duty to clarify this ambiguity. Wisconsin Mutual's failure to do so resulted in a valid offer of settlement. Consequently, we reverse on the cross-appeal. We remand and direct the circuit court to include double costs and interest in the judgment, pursuant to § 807.01.


¶ 3 On November 6, 2004, Kotecki, Kubichek, and Kubichek's son were felling trees on land owned by one of Kubichek's friends. Kotecki and Kubichek both had twenty years' experience felling trees. Additionally, Kotecki had worked full-time as a professional logger for three months in 1993, when he felled between forty and fifty trees per day.

¶ 4 Kotecki was in charge of cutting down the trees, Kubichek cut off the limbs and cut the trunks into logs, and Kubichek's son loaded the logs onto pickup trucks. The last tree they selected to cut was a dead oak between thirty and sixty feet tall. Another tree to the north of the oak had fallen on its own, and its upper branches were entangled in a third tree, leaving the fallen tree suspended at a diagonal. Kotecki decided to cut the oak so that it would fall to the north, hit the diagonally leaning tree, and knock it to the ground. Kotecki believed this maneuver would “kill two birds with one stone,” yielding two trees with only one cut.

¶ 5 Kotecki informed Kubichek of his plan. Kubichek told Kotecki he had “never thought of doing anything like that before” and was going to step away. Kubichek walked thirty to forty feet southwest of the oak and leaned against a tree stump. Kotecki never told Kubichek to move farther away or to stand in a different location.

¶ 6 Kotecki began by cutting a notch in the north side of the oak. He then made a back cut on the opposite side of the trunk, which is the cut that causes a tree to fall. While Kotecki testified he was not sure whether he cut all the way through the trunk, both Kubichek and Kubichek's son testified Kotecki cut through the trunk completely. The oak fell onto the diagonally leaning tree, but that tree did not give way as Kotecki had expected. Instead, the leaning tree held firm and acted as a fulcrum, abruptly lifting the butt end of the oak ten to twelve feet into the air. The oak then began to slide down the trunk of the leaning tree. The oak's branches became entangled, causing its butt end to pivot and swing toward Kubichek “like a baseball bat.” Kubichek saw the oak coming toward him, but could not get out of the way before it hit him in the chest. Kubichek suffered massive injuries to his spinal cord, rendering him a quadriplegic.

¶ 7 Kubichek sued Kotecki and his homeowner's insurer, Wisconsin Mutual, alleging Kotecki was negligent in felling the oak. In light of Wisconsin Mutual's $300,000 policy limit, Kubichek served counsel for Wisconsin Mutual and Kotecki with a statutory offer of settlement in the amount of $299,999. Counsel never responded to Kubichek's offer.

¶ 8 At trial, Lee Schauman, a logging safety expert, testified for Kubichek. Schauman stated that the sawyer—the person cutting the tree—is responsible for the safety of people in the vicinity. Schauman opined that Kotecki, as the sawyer, violated at least two logging safety practices when cutting the oak. He testified that these violations caused Kotecki to lose control of the base of the oak, allowing it to move in an unanticipated manner.

¶ 9 Specifically, Schauman testified that Kotecki violated safe logging practices by choosing to fell one tree into another. Schauman explained that felling one tree into another is dangerous because the sawyer cannot know how the two trees will react:

[I]t just adds more question marks as to what the tree that you're felling is going to do after it hits the tree that's hung up that [you're] trying to knock it down. Will it get hung up? There's all kinds of different things that can happen when those two trees come together. Those unpredictable issues just add to the danger of what you're trying to do.

Schauman also testified that Kotecki violated safe logging practices by cutting all the way through the oak. He explained that, in making a back cut, it is crucial not to cut all the way through the tree because “as soon as you cut a tree free from the stump, you've lost control of it and instead of controlling the tree, the tree controls you.” The safe method of making a back cut is to leave a certain amount of the wood uncut, creating “hinge wood.” The hinge wood gives the sawyer more control over the direction in which the tree falls and over the movement of the tree's butt end. Schauman also testified that, if Kotecki were at all uncertain as to how the oak would react when it struck the second tree, he should have warned Kubichek to move away from the area entirely.

¶ 10 Kotecki did not present any expert testimony to contradict Schauman. He conceded his chainsaw manual warned against felling one tree into another and warned about the necessity of maintaining hinge wood. He admitted that [t]o avoid falling the tree into another tree would be common sense....” He also testified that, given his prior experience in the logging industry, he was aware of the necessity of leaving hinge wood. The jury returned a verdict allocating seventy percent negligence to Kotecki and thirty percent negligence to Kubichek. The jury assessed Kubichek's total damages at $16,102,634.62.

¶ 11 Five days after trial, counsel for Kotecki and Wisconsin Mutual wrote to Kubichek's attorney offering Wisconsin Mutual's policy limit of $300,000 plus costs “for a full and final resolution of this matter including a release of all claims against Jay Kotecki and Wisconsin Mutual[.] Kubichek's attorney promptly declined the offer. Five days later, Kotecki and Wisconsin Mutual's counsel sent Kubichek's counsel a letter enclosing a $300,000 check. Unlike the earlier settlement offer, the letter did not state that the check represented “a full and final resolution of this matter[.] Based on previous conversations, Kubichek's counsel believed Wisconsin Mutual was tendering its policy limit to prevent the accrual of further interest on its portion of the jury verdict. Kubichek's counsel gave the check to his office manager with instructions to deposit it in the firm's trust account. Kubichek's counsel did not examine the back of the check, which stated:

The payee by endorsing this check acknowledges full settlement of claim or account shown on other side and in consideration of this payment hereby fully releases the maker hereof from all liability with respect to such claim or account.

¶ 12 Both Kotecki and Kubichek filed motions after verdict. Kotecki moved the court to change the jury's verdict answers on negligence, arguing there was no credible evidence supporting the jury's findings that Kotecki was negligent and that his negligence exceeded Kubichek's. Alternatively, Kotecki asked the court to grant a new trial in the interest of justice. Kubichek moved the court for prejudgment interest and double costs, pursuant to Wis. Stat. § 807.01(3) and (4). The circuit court denied the motions.

¶ 13 Kotecki then filed a brief in opposition to entry of judgment on the verdict, arguing the case had already settled and judgment was therefore barred by the doctrine of accord and satisfaction. Kotecki contended Kubichek had accepted Wisconsin Mutual's $300,000 check as a settlement of all his claims. The court rejected this accord and satisfaction argument, and entered judgment on the jury verdict. Kotecki now appeals the judgment, and Kubichek cross-appeals.


I. Kotecki's appealA. Evidence supporting the jury verdict

¶ 14 When considering a motion to change the jury's answers to verdict questions, we view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence. Richards v. Mendivil, 200 Wis.2d 665, 671, 548 N.W.2d 85 (Ct.App.1996); see also Wis. Stat. § 805.14(1). We search the record for credible evidence that sustains the verdict, and if the evidence gives rise to more than one reasonable inference, we accept the inference the jury reached. Morden v. Continental AG, 2000 WI 51, ¶ 39, 235...

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