Wis. Physicians Serv. Ins. Corp. v. AMCO Ins. Co.
| Decision Date | 11 December 2012 |
| Docket Number | No. 2011AP2860.,2011AP2860. |
| Parties | WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION, Involuntary–Plaintiff, Deborah Strickland and Randy G. Strickland, Plaintiffs–Appellants–Cross–Respondents, v. AMCO INSURANCE COMPANY, Defendant–Respondent–Cross–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal and CROSS–APPEAL from a judgment of the circuit court for Washburn County: Eugene D. Harrington, Judge. Affirmed.
Before HOOVER, P.J., MANGERSON, J., and THOMAS CANE, Reserve Judge.¶ 1PER CURIAM.
AMCO Insurance Company provided underinsured motorist coverage to Randy Strickland and his wife, Deborah.1 After Strickland was involved in a collision with an underinsured motorist, the Stricklands sued AMCO, seeking to recover various damages related to neck and shoulder injuries Strickland allegedly sustained in the accident. A jury awarded Strickland $20,000 for past health care expenses, $5,000 for past impairment of earning capacity, and $20,000 for past pain and suffering. It also awarded Deborah $5,000 for loss of society and companionship. However, the jury declined to award any damages for future health care expenses, future impairment of earning capacity, or future pain and suffering. The Stricklands appeal, arguing the jury's verdict is contrary to the great weight of the evidence and is perverse. They also ask us to grant a new trial in the interest of justice. We reject the Stricklands' arguments and affirm.
¶ 2 In a cross-appeal, AMCO asserts the circuit court erred by striking an offer of judgment AMCO made to the Stricklands. The court reasoned the offer was invalid because it was a joint offer that failed to specify separate sums for Strickland's and Deborah's separate claims. We agree that the offer of judgment was invalid. We therefore affirm on the cross-appeal.
¶ 3 Strickland was involved in a motor vehicle accident on March 2, 2007. While Strickland's vehicle was waiting to make a right-hand turn, a collision occurred between vehicles operated by Shawn Cahill and Joseph Nordstrom. As a result, the Nordstrom vehicle struck the left side of Strickland's vehicle.
¶ 4 At the accident scene, Strickland reported pain in his left shoulder, ribs, and hip. He was transported to a local emergency room but was released the same day. Strickland, who worked as a chiropractor, missed approximately fourteen days of work following the accident. He was then put on “light duty” status for about three months. He did not miss any other work as a result of the accident.
¶ 5 Following the accident, Strickland sought medical and chiropractic care for pain in his neck and left shoulder. On about March 5, 2007, he consulted with a chiropractic colleague, Dr. Daniel Dock, who ordered an MRI. The MRI revealed no acute injury to Strickland's neck or shoulder. Instead, it revealed degenerative changes to the neck and a genetic variant in the shoulder known as a “type II acromion.” Patients with type II acromions are predisposed to have shoulder impingement problems and rotator cuff injuries. Strickland's MRI also revealed arthritic changes in the shoulder joint.
¶ 6 Strickland was subsequently examined by Dr. Scott Cameron, an orthopedic surgeon, on March 12, 2007. Cameron concluded Strickland had “some type of muscle contusion to his left upper extremity.” Cameron prescribed physical therapy and suggested that Strickland modify his activities.
¶ 7 Strickland returned to Cameron in December 2007, again complaining of shoulder pain. Cameron ordered an MRI of Strickland's shoulder, and based on the MRI, he diagnosed Strickland with impingement syndrome of the left shoulder. Consequently, in February 2008, Cameron administered a cortisone injection to Strickland's shoulder. At trial, Strickland testified the injection provided relief for only six weeks. Cameron's notes, however, reflected that the injection “really worked well, and [Strickland] got better [.]” Cameron did not see Strickland again until July 2009, at which point Strickland indicated the shoulder pain had “crept back[.]” Cameron then ordered another MRI, which showed “minimal partial thickness tearing of the rotator cuff.”
¶ 8 Strickland returned to Cameron in August 2009 for a second cortisone injection. Strickland reported the second injection provided very little relief. Consequently, Cameron suggested arthroscopic surgery to “decompress that subacromial space [of the shoulder] where the impingement is occurring [.]” Strickland declined to undergo the surgery.
¶ 9 In the meantime, Strickland received chiropractic treatment from Dr. Steven Owens. Strickland saw Owens regularly from March 2007 until May 2007, and then more sporadically until November 2007. After that, Strickland did not return to Owens until April 22, 2008, one day after Strickland was involved in a second car accident. Following the second accident, Strickland continued to see Owens regularly up until the time of trial.
¶ 10 With respect to the first accident, Strickland ultimately recovered $40,000 from Nordstrom's liability insurance carrier. He also received $5,000 from AMCO under its policy's medical expense coverage. The Stricklands then filed suit against AMCO, seeking additional damages under the policy's underinsured motorist provision. Pursuant to Wis. Stat. § 807.01(1), 2 AMCO made an offer of judgment to the Stricklands in the amount of $40,000 in “new money”—that is, $40,000 above and beyond the amounts the Stricklands had already recovered. The Stricklands declined AMCO's offer, and the case proceeded to trial. AMCO conceded that Nordstrom's negligence caused the March 2007 accident, thereby invoking underinsured motorist coverage under AMCO's policy. Thus, the only issue for trial was the extent of the Stricklands' damages.
¶ 11 At trial, Strickland testified that, as a result of the March 2007 accident, he experiences headaches, neck pain, left shoulder pain, mid-back pain, left arm and hand pain, and numbness in his right thumb. He stated that, because he is left-hand dominant, he has had to change the way he performs certain chiropractic maneuvers. In general, he has experienced decreased stamina and endurance since the accident and cannot see as many patients per day. He has also decreased his involvement in other activities, such as mountain biking and ski patrol. However, he admitted on cross-examination that he does not take any prescription pain medications and takes over-the-counter pain medications only once every three or four months. He also conceded none of his treating doctors have placed any formal restrictions on his activities.
¶ 12 Doctor Dock testified Strickland sustained a “rotator cuff injury” in the March 2007 accident and also suffered a herniated disc in his cervical spine. He testified the injuries to Strickland's shoulder and neck were permanent and should be treated with monthly chiropractic visits.
¶ 13 Doctor Owens similarly testified Strickland suffered a permanent injury in the March 2007 accident. On cross-examination, though, Owens conceded that Strickland was “holding up relatively well” as of May 2007. He also admitted that, after November 2007, he did not see Strickland again until April 22, 2008, one day after Strickland was involved in a second car accident. Owens testified that he treated Strickland for injuries stemming from the second accident from April 22, 2008 until September 30, 2008. Although Owens continued to treat Strickland until the time of trial, he asserted these later treatments were related to injuries Strickland sustained in the first accident, not the second.
¶ 14 Doctor Cameron was unavailable for trial, but his video deposition was played for the jury, and the transcript of another deposition was read into the record. Cameron testified Strickland suffered a “traumatically-induced impingement syndrome” in the March 2007 accident. When asked whether Strickland's injury was permanent, Cameron testified it was “heading that way.” Cameron recommended that Strickland undergo arthroscopic shoulder surgery, which he testified had a 90–95% success rate. He testified that, after the surgery, Strickland would be able to continue his chiropractic practice “until the shoulder started talking to him again.” Cameron opined that would occur approximately ten years after the surgery. At that point, Strickland would likely have a full rotator cuff tear that would require additional surgery.
¶ 15 On cross-examination, Cameron conceded the MRI performed five days after the accident did not show any acute injury to Strickland's shoulder and instead showed arthritis and a type II acromion. He stated the MRI showed He also admitted the shoulder joint tends to deteriorate with age, and he conceded Strickland may have eventually needed shoulder surgery with or without the accident.
¶ 16 The jury also heard the testimony of Dr. William Simonet, an orthopedic surgeon who performed an independent medical examination of Strickland. Like Cameron, Simonet was unavailable for trial, but his two video depositions were played for the jury. Simonet opined that the only injury Strickland sustained in the March 2007 accident was a bruise on the left side of his chest. Simonet stated Strickland may have suffered some muscle soreness in his neck and shoulder following the accident, but he did not sustain any permanent injury. Simonet testified it was reasonable for Strickland to go to the emergency room after the accident, and a one-time follow-up visit with Strickland's primary care provider would have been appropriate, but no other medical care was necessary. Simonet also testified it was reasonable for Strickland to take fourteen days off of work after the accident, but he opined Strickland did not require any additional work...
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