Emer's Camper Corral, LLC v. Western Heritage Insurance Company

2020 WI 46

• Court: Wisconsin Supreme Court
• Decided: May 21, 2020
• Docket: 2018AP000458
• Status: Published

Opinion

2020 WI 46

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP458

COMPLETE TITLE: Emer's Camper Corral, LLC, Plaintiff-Appellant-Petitioner, v. Michael A. Alderman, Alderman, Inc. d/b/a Jensen-Sundquist Insurance Agency and Western Heritage Insurance Company, Defendants-Respondents.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 386 Wis. 2d 592,928 N.W.2d 641 PDC No:2019 WI App 17 - Published

OPINION FILED: May 21, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 25, 2019

SOURCE OF APPEAL: COURT: Circuit COUNTY: Burnett JUDGE: Melissia R. Mogen

JUSTICES: KELLY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL BRADLEY, DALLET and HAGEDORN, JJ., joined. ROGGENSACK, C.J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs filed by Steven L. Miller and Miller Appellate Practice, LLC, River Falls, WI. There was an oral argument by Steven L. Miller.

For the defendant-respondent, there was a brief filed by Rolf E. Sonnesyn, Beth L. LaCanne, and Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, Minnesota. There was an oral argument by Rolf E. Sonnesyn.

2 2020 WI 46

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP458 (L.C. No. 2015CV25)

STATE OF WISCONSIN : IN SUPREME COURT

Emer's Camper Corral, LLC,

Plaintiff-Appellant-Petitioner,

v. FILED Michael A. Alderman, Alderman, Inc. d/b/a MAY 21, 2020 Jensen-Sundquist Sheila T. Reiff Clerk of Supreme Court Insurance Agency and Western Heritage Insurance Company,

Defendants-Respondents.

KELLY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL BRADLEY, DALLET, and HAGEDORN, JJ., joined. ROGGENSACK, C.J., filed a dissenting opinion.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DANIEL KELLY, J. Emer's Camper Corral, LLC ("Camper

Corral") thought its insurance agent had acquired a policy with a

deductible of $1,000 per camper in the event of hail damage with

a $5,000 aggregate deductible limit. In actuality, the policy

required a $5,000 deductible per camper, with no aggregate limit.

Camper Corral did not discover the truth until after a hailstorm damaged many of the campers on its lot. No. 2018AP458

¶2 Camper Corral sued its insurance agent, Michael A.

Alderman, and Alderman, Inc. d/b/a Jensen-Sundquist (collectively,

"Mr. Alderman") claiming he was negligent because he procured a

policy that did not conform to its requirements.1 The circuit

court directed a verdict because Camper Corral's failure to

introduce evidence that an insurer would have insured the company

with the deductible limits it thought it had meant that it had not

proven a causal link between the agent's negligence and the

sustained loss.2

¶3 We granted Camper Corral's petition for review to

determine whether it must prove not just that an insurance policy

with the requested deductibles was commercially available, but

also that an insurer would actually write that policy for Camper

Corral in particular. We hold that commercial availability is

insufficient to establish causation; Camper Corral must also prove

it would have qualified for an insurance policy with better terms

than the policy it actually obtained. Therefore, we affirm the

court of appeals. I. BACKGROUND3

1 Camper Corral also filed a claim for reformation of contract based on mutual mistake against its insurer, Western Heritage Insurance Company. That claim is not before us. 2 This is a review of a published court of appeals opinion, Emer's Camper Corral, LLC v. Alderman, 2019 WI App 17, 386 Wis. 2d 592, 928 N.W.2d 641, which affirmed the Burnett County Circuit Court, the Honorable Melissia R. Mogen, presiding. 3 The facts are taken from the Complaint, trial testimony, and the circuit court's written order granting Mr. Alderman's motion for a directed verdict, which was filed on January 26, 2018.

2 No. 2018AP458

¶4 Camper Corral (owned by Rhonda Emer and her husband) has

been in the business of selling new and used camper trailers since

approximately 2004.4 Since shortly after it started business,

Camper Corral has obtained its insurance through its agent, Mr.

Alderman. In approximately 2007, it contacted Mr. Alderman to

obtain an insurance policy to cover its camper inventory.

¶5 Mrs. Emer said Camper Corral's first garage policy

(issued by General Casualty in 2007) included coverage for hail

damage. She said it carried a $500 deductible per camper and, to

her knowledge, had no aggregate limit on the deductible. The

General Casualty policy commenced on September 30, and expired on

September 30 of the following year. Succeeding policies commenced

immediately upon expiration of the preceding policy.

¶6 In 2011, Camper Corral sustained approximately $100,000

in damages to numerous campers in a hailstorm. Camper Corral

submitted a claim to General Casualty pursuant to the policy then

in effect. General Casualty duly paid the claim and subsequently

renewed Camper Corral's policy under the same terms for the 2011- 2012 policy period. Camper Corral again sustained hail damage

totaling approximately $100,000 in the summer of 2012. As before,

General Casualty paid on the claim, but this time it sent Camper

Corral a non-renewal letter prior to commencement of the 2012-2013

policy term.

4 At the outset, Camper Corral focused on selling used campers only; however, in or around 2008, it also began selling new camper trailers.

3 No. 2018AP458

¶7 Mr. Alderman told Camper Corral that its next insurance

policy would have to come from "other markets," which Mrs. Emer

understood to mean that Camper Corral would likely pay higher

premiums and would have less favorable deductibles. Ultimately,

Camper Corral obtained coverage for the 2012-2013 policy period

from Western Heritage Insurance Company ("Western Heritage").

Mrs. Emer said she knew this policy contained a $5,000 deductible

per camper for hail damage. She also said she understood that,

due to Camper Corral's recent claims history, she could not obtain

a policy with more favorable terms. Mr. Alderman told her that if

Camper Corral remained claims free for one to two years, he could

potentially get the deductible down to $1,000 per camper. She

understood, however, that this was a goal——not a promise that it

would be possible.

¶8 Camper Corral did, in fact, go claims free during the

2012-2013 policy period. According to Camper Corral, as the 2013-

2014 policy period approached, Mr. Alderman contacted Camper

Corral with the "great news" that he had obtained a policy from Western Heritage with a $1,000 deductible per camper for hail

damage with a $5,000 aggregate deductible limit. Unbeknownst to

Camper Corral, however, the 2013-2014 policy placed by Mr. Alderman

with Western Heritage actually required a $5,000 per camper

deductible with no aggregate limit.

¶9 In August 2014, Mr. Alderman contacted Camper Corral to

discuss policy options for the upcoming 2014-2015 period. Mr.

Alderman explained that he had obtained quotes from Western Heritage (the current provider) and Erie Insurance Company, an 4 No. 2018AP458

insurance company in the standard market. According to Mrs. Emer,

he indicated that both quotes offered a $1,000 per camper hail

deductible and that the Western Heritage quote had the same terms

as the soon-to-expire 2013-2014 policy. Before the two could meet

to discuss the quotes, however, Camper Corral sustained hail damage

to 25 campers in its inventory on September 3, 2014. As a result,

Erie rescinded its quote. Western Heritage, however, could not

rescind its quote because, according to Mrs. Emer's trial

testimony, the hail damage claim occurred within 60 days of the

renewal period.

¶10 After the hail event on September 3, 2014, Mrs. Emer

discovered that the 2013-2014 Western Heritage policy actually

contained a $5,000 per camper deductible for hail damage rather

than the $1,000 deductible she thought it had, and that there was

no aggregate deductible limit. With damage to 25 campers, Camper

Corral's total deductible came to $125,000.

¶11 Camper Corral's lawsuit against Mr. Alderman claimed he

breached his duty of care to Camper Corral by obtaining a policy for the 2013-2014 period with a $5,000 per camper deductible

despite being aware that Camper Corral desired coverage with a

lower deductible. The Complaint alleges that Mr. Alderman is

liable in the amount of $120,000——the difference between the

$125,000 deductible Camper Corral paid for the September 3, 2014

hail event and the $5,000 aggregate deductible Camper Corral

believed it had obtained for the 2013-2014 policy period.

¶12 Mr. Alderman moved for summary judgment, arguing that Camper Corral's negligence claim must fail because there was no 5 No. 2018AP458

evidence that Mr. Alderman had caused Camper Corral's damages.

The circuit court denied the motion and the case proceeded to a

jury trial.

¶13 Before submitting the case to the jury, Mr. Alderman

moved for a directed verdict challenging the causal connection

between Camper Corral's damages and his failure to obtain an

insurance policy with the desired terms. Specifically, he argued

there could be no causal connection unless Camper Corral had been

eligible for an insurance policy with the more favorable terms it

believed it had for the 2013-2014 policy period. The circuit court

took the motion under advisement and counsel for Mr. Alderman then

read the deposition testimony of Robert Sutton, an insurance expert

Camper Corral had hired but did not call at trial, to the jury.

As relevant here, Mr. Sutton stated that, because of Camper

Corral's claims history in 2011 and 2012, it was not possible for

Camper Corral to have obtained an insurance policy with a $1,000

hail deductible and $5,000 aggregate deductible for the 2013-2014

policy period. Mr. Alderman then renewed his motion, which the circuit court granted. The circuit court stated that "[t]he

evidence presented in this case through the testimony and the

exhibits presents no evidence that the policy . . . was available

6 No. 2018AP458

or could have been available[,]" and therefore the claim failed as

a matter of law.5

¶14 The court of appeals affirmed, noting that "no credible

evidence was introduced at trial to support a finding that, absent

Alderman's alleged negligence, Camper Corral could have obtained

a policy with a hail damage deductible of less than $5000 per

unit. . . . The circuit court's assessment of the evidence was

not 'clearly wrong.'" Emer's Camper Corral, LLC v. Alderman, 2019

WI App 17, ¶24, 386 Wis. 2d 592, 928 N.W.2d 641 (internal citation

omitted). We granted Camper Corral's petition for review and now

affirm the court of appeals.

II. STANDARD OF REVIEW

¶15 "A motion for a directed verdict challenges the

sufficiency of the evidence." Marquez v. Mercedes-Benz USA, LLC,

2012 WI 57, ¶47, 341 Wis. 2d 119, 815 N.W.2d 314; see also Wis.

Stat. § 805.14(4) (2017-18)6 ("In trials to the jury, at the close

of all evidence, any party may challenge the sufficiency of the

evidence as a matter of law by moving for directed

5 The circuit court determined that the case failed for the additional reason that, in a negligent procurement claim, expert testimony is necessary to establish the standard of care. Camper Corral did not introduce any such testimony. But because the court of appeals affirmed the circuit court on the question of causation, it did not address whether expert testimony on the standard of care was necessary. Emer's Camper Corral, 386 Wis. 2d 592, ¶2, n. 1. It is unclear why the dissent discusses this issue inasmuch as Camper Corral did not raise it in its petition for review and we do not address it here. See dissent, ¶8. 6 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.

7 No. 2018AP458

verdict . . . ."). The court may grant the motion if it "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." § 805.14(1). Where

a circuit court grants a motion for a directed verdict, we will

uphold the circuit court's decision unless the circuit court was

clearly wrong. Gagliano & Co., Inc. v. Openfirst, LLC, 2014 WI 65,

¶30, 355 Wis. 2d 258, 850 N.W.2d 845 (citing Weiss v. United Fire

& Cas. Co., 197 Wis. 2d 365, 389, 541 N.W.2d 753 (1995)) (when

reviewing a "circuit court's decision to grant a directed verdict,

the verdict must stand unless the record reveals that the circuit

court was clearly wrong."). "A circuit court's evidentiary

determination is clearly wrong when there is any credible evidence

to support the position of the non-moving party." Gagliano, 355

Wis. 2d 258, ¶30.

¶16 Whether the circuit court applied the proper legal

standard in analyzing causation is a question of law we review de novo. See State v. Greenwold, 181 Wis. 2d 881, 884-885, 512

N.W.2d 237 (Ct. App. 1994).

III. ANALYSIS

¶17 Camper Corral says it may have recovery against Mr.

Alderman because he acted negligently when he obtained an insurance

policy with higher than requested deductibles. A plaintiff

succeeds on such a claim by proving the standard quartet of

negligence elements, which in this case comprise: (1) Mr. Alderman's duty of care to Camper Corral; (2) Mr. Alderman's breach 8 No. 2018AP458

of that duty; (3) injury caused by Mr. Alderman's breach; and (4)

actual loss or damage resulting from the injury. See Avery v.

Diedrich, 2007 WI 80, ¶20, 301 Wis. 2d 693, 734 N.W.2d 159;

Gritzner v. Michael R., 2000 WI 68, ¶19, 235 Wis. 2d 781, 611

N.W.2d 906; Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1, 15,

402 N.W.2d 711 (1987).

¶18 This case involves only the third of the four negligence

elements. To establish causation, Camper Corral must prove that

it would not have sustained its alleged $120,000 loss absent Mr.

Alderman's negligence. The loss in this case represents the

difference between the $125,000 aggregate deductible for which

Camper Corral was responsible under the 2013-2014 Western Heritage

policy and the $5,000 aggregate deductible for which it would have

been responsible if Mr. Alderman had procured a policy with the

terms Camper Corral requested.7

¶19 The circuit court granted a directed verdict because it

saw no evidence linking Mr. Alderman's breach to Camper Corral's

loss. It concluded that Mr. Alderman could not have caused the loss because nothing in the record indicated that Camper Corral

would have qualified for a policy with the requested deductibles.

Camper Corral argues, however, that its insurability under the

requested terms is irrelevant. Instead, it says it need only

demonstrate that policies with the requested terms were

7 See, e.g., Appleton Chinese Food Serv., Inc. v. Murken Ins., Inc., 185 Wis. 2d 791, 808, 519 N.W.2d 674 (Ct. App. 1994) ("Damages arising out of a broker's failure to procure insurance are commonly determined by the terms of the policy the agent failed to procure.").

9 No. 2018AP458

commercially available. We will refer to this as the "commercial

availability" theory of causation. Alternatively, it says it can

prove a causal connection between Mr. Alderman's breach and its

losses based on its reliance on his representation that he had

obtained a policy with the requested deductibles. If it had known

Mr. Alderman had failed in that regard, Camper Corral says, it

could have changed its business practices during the 2013-2014

policy period to mitigate the vulnerability of its inventory to

hail damage. This is Camper Corral's "reliance" theory of

causation. We will address each of these theories in turn.

A. General Availability v. Particular Availability

¶20 With the exception of the court of appeals' opinion under

review, it appears there are no reported Wisconsin cases in which

the court has determined whether, in establishing causation under

the commercial availability theory, a policyholder must prove it

was insurable under the policy terms the broker was supposed to

obtain. So our analysis will begin with general principles of

causation and discern what lessons they have for us in these circumstances. We will also consult the decisions of other courts

that have addressed themselves to this issue.

¶21 In negligence cases, "the test for causation is whether

the conduct at issue was a 'substantial factor' in producing

plaintiff's injury." Baumeister v. Automated Products, Inc., 2004

WI 148, ¶24, 277 Wis. 2d 21, 690 N.W.2d 1 (citing Estate of

Cavanaugh v. Andrade, 202 Wis. 2d 290, 306, 550 N.W.2d 103

(1996)). Or, in the negative formulation, we ask whether the loss would have occurred even in the absence of Mr. Alderman's 10 No. 2018AP458

negligence: "Causation is not established by testimony that even

without defendant's negligence, the harm would have occurred

anyway." Beacon Bowl, Inc. v. Wis. Elec. Power Co., 176

Wis. 2d 740, 788, 501 N.W.2d 788 (1993) (citing § 432(1),

Restatement (Second) of Torts (1965) ("[T]he actor's negligent

conduct is not a substantial factor in bringing about harm to

another if the harm would have been sustained even if the actor

had not been negligent.")).

¶22 Camper Corral's proposed "commercial availability" test

is, certainly, a necessary prerequisite to satisfying the

"substantial factor" standard of causation. After all, if the

insured requests a policy that is not available in the market, the

insured's harm comes from its unavailability, not from the broker's

failure to obtain what does not exist. So the desired policy must

be commercially available before the broker's failure can be a

substantial factor in causing the insured's loss. The question,

therefore, resolves to whether "commercial availability" is a

condition sufficient for that causal link. ¶23 We conclude that Camper Corral's "commercial

availability" standard does not fully answer whether the desired

policy was available within the meaning of the "substantial factor"

test. An insurance policy is not a mass-produced good or service

that is available to the public without regard for the

circumstances of the prospective purchaser. Instead, the

coverage, terms, and premium depend on factors specific to the

insured company, such as, for example, its claims history. See, e.g., Leicht Transfer & Storage Co. v. Pallet Cent. Enters., Inc., 11 No. 2018AP458

2019 WI 61, ¶11, 387 Wis. 2d 95, 928 N.W.2d 534 (quoted source

omitted) (explaining that we do "'not interpret insurance policies

to provide coverage for risks that the insurer did not contemplate

or underwrite and for which it has not received a premium'"); see

also Certain Underwriters at Lloyd's v. Montford, 52 F.3d 219, 222

(9th Cir. 1995) (explaining that an insurance applicant's loss

history is a fact material to the risk). So when we say a policy

with certain deductible limits is "commercially available," what

we mean is that somewhere in the market there is an insurance

company willing to write that policy for a hypothetical company

with a hypothetical set of insurability factors.

¶24 But just because an insurance company would write a

specific policy for one company does not mean it would insure all

companies under the same terms. Consequently, "commercial

availability" of the policy requested by Camper Corral

establishes, at most, that some company somewhere could get the

desired deductible limits. It does not answer whether such a

policy was available to Camper Corral. So, if general commercial unavailability prevents formation of a causal link between a

broker's negligence and an insured's loss, then it necessarily

follows that the policy's unavailability to Camper Corral in

12 No. 2018AP458

particular must also prevent formation of a causal link.8 Whether

the unavailability is general, or instead particular to Camper

Corral, the policy's unavailability exists independently of any

negligence on behalf of the broker. And if that is so, then the

broker's negligence cannot be a substantial factor in producing

Camper Corral's loss because it would have occurred even if the

broker had not been negligent. See Beacon Bowl, Inc., 176

Wis. 2d at 788 ("Causation is not established by testimony that

even without defendant's negligence, the harm would have occurred

anyway.").

¶25 If we did not require Camper Corral to prove it could

have obtained a policy with the desired deductible limits, we would

create a substantive wrinkle in the burden of proof for this type

of case. Generally, we require a tort claimant to prove each

element of its claim by a preponderance of the evidence. See,

e.g., Atkinson v. Goodrich Transp. Co., 69 Wis. 5, 13, 31 N.W. 164

8 Tri-Town Marine, Inc. v. J.C. Milliken Agency, Inc., 924 A.2d 1066 (Me. 2007), provides additional instruction. In that case, the insured asserted the commercial availability theory of causation, despite conceding that the scope of coverage it sought was "not offered by or available from any other insurer[.]" Id. at 1069. The Supreme Judicial Court of Maine analogized the case to legal malpractice cases "in which proof that better representation would have brought about a more favorable outcome is required." Id. at 1070.

Tri-Town Marine's analogy suggests that mere commercial availability of the desired coverage is insufficient to establish causation because it does not establish that a specific insured would have had a more favorable outcome but for the insurance agent's actions. The insured would not have a more favorable outcome, of course, unless it was actually eligible for the desired policy terms.

13 No. 2018AP458

(1887) ("Negligence being an affirmative fact, necessary to be

proved by the plaintiff who alleges it, the universal rule is that

the plaintiff must prove the fact by a preponderance of the

evidence."); Zillmer v. Miglautsch, 35 Wis. 2d 691, 700, 151

N.W.2d 741 (1967) ("the plaintiff in a tort case does have the

burden of proof and, in meeting this burden, he must come forward

with evidentiary facts that establish the ultimate facts; and the

degree of proof must be such as to remove these ultimate facts

from the field of mere speculation and conjecture."); Ehlinger v.

Sipes, 155 Wis. 2d 1, 12, 454 N.W.2d 754 (1990) ("To establish

causation in Wisconsin, the plaintiff bears the burden of proving

that the defendant's negligence was a substantial factor in causing

the plaintiff's harm."); see also Wis JI——Civil 200 (2004)

(explaining that the burden of proof "is to satisfy [the

factfinder] by the greater weight of the credible evidence, to a

reasonable certainty . . . .").

¶26 But in asking us to accept "commercial availability" as

sufficient proof of causation, Camper Corral is actually asking us to grant it an evidentiary presumption to help it bridge the gap

between general and particular availability of the desired

insurance policy. It says this presumption is necessary so that

we do not "impose [on the insured] the difficult task of having to

retroactively prove——often years later——that an individual

plaintiff could have obtained a better policy during the policy

period at issue." We do not think the difficulty of a task is a

sufficient basis for relieving a plaintiff of its duty to prove the essential elements of its claim. Alternatively, Camper Corral 14 No. 2018AP458

suggests we could make the presumption rebuttable by allowing the

insurer to prove the required policy was not actually available to

the insured. See, e.g., United Capitol Ins. Co. v. Kapiloff, 155

F.3d 488, 499 (4th Cir. 1998) (citing Patterson Agency, Inc. v.

Turner, 372 A.2d 258, 261 (Md. Ct. Spec. App. 1977)). This, of

course, would require proof of a negative. And because

insurability is not susceptible of generalizations, Mr. Alderman

would have to prove that no insurer in the market would insure

Camper Corral under the requested terms.

¶27 Aside from evidentiary difficulties, Camper Corral has

offered no rationale for either relieving it of its duty to prove

each element of its claim, or requiring Mr. Alderman to negate the

presumption in favor of causation. Therefore, we conclude that

the general principles governing proof of causation do not support

Camper Corral's "commercial availability" standard.

¶28 Nor do we find anything in prior opinions (either ours

or those of other courts) that suggests we should modify the

teaching of our general principles. Camper Corral directs our attention to Kapiloff, in which the Fourth Circuit recognized that,

under Maryland law, "[t]he burden of proving the nonavailability

of insurance coverage is on the insurer or the broker, because it

is an affirmative defense that is within the peculiar knowledge of

those familiar with the market." 155 F.3d at 499 (citing

Patterson, 372 A.2d at 261). The Kapiloff court relied on

Patterson, a Maryland court of appeals opinion, which in turn

relied on an A.L.R. annotation for its reasoning. The annotation describes "a split of authority . . . as to who bears the burden 15 No. 2018AP458

of proof on the availability of insurance . . . ." Patterson, 372

A.2d at 261. The annotation observed that several jurisdictions

place the burden on the plaintiff:

In addition to being required to establish the existence of a duty to procure insurance and its breach, the plaintiff in an action against an agent or broker for failure to procure insurance has often been required to show that there was a casual (sic [causal]) relationship between the negligence of the agent and the loss suffered by the client. In several jurisdictions, the causation requirement has been a formidable barrier to recovery, which has prevented a finding of liability against the agent or broker unless the client is able to clearly show that were it not for the agent's negligence, he would have been issued a valid policy which would have protected him against the loss which he suffered. Id. (footnote omitted) (citing MacDonald v. Carpenter & Pelton,

Inc., 31 A.D.2d 952 (N.Y. App. Div. 1969) and Pac. Dredging Co. v.

Hurley, 397 P.2d 819 (Wash. 1964)). But not all courts employ

that standard:

[A] few courts, recognizing that the question of whether a valid policy would have been issued is a matter peculiarly within the knowledge of the agent or broker, have concluded that causation need not be proved by the client and will only enter the case if the issue is raised by the agent as an affirmative defense. Patterson, 372 A.2d at 261 (citing Annot., 64 A.L.R.3d 398, 407

(1975); Hans Coiffures Int'l, Inc. v. Hejna, 469 S.W.2d 38 (Mo.

App. 1971); Scott v. Conner, 403 S.W.2d 453 (Tex. Civ. App. 1966)).

¶29 In response to the annotation's content, the Patterson

court cryptically analogized the causation issue to a completely

unrelated affirmative defense. Specifically, it noted that when

concurrent causes result in a loss, one covered by the insurance policy and one not, it is the insurer's burden to prove the loss

16 No. 2018AP458

resulted from the non-covered cause. Based on this analogy, the

Patterson court concluded that the "burden of proving the non-

availability [of the requested insurance] should be shouldered by

the insurer, in the nature of an affirmative defense." Patterson,

372 A.2d at 261. So Patterson, and by extension Kapiloff, provide

guidance only if we were to conclude that Camper Corral's

insurability is a piece of information peculiarly within Mr.

Alderman's knowledge or that insurability is akin to a concurrent

causation question. But no party has alleged that Mr. Alderman

alone would know whether an insurance company would deem Camper

Corral insurable with the requested deductibles, and we discern

nothing so peculiar about this information that it could not be

established through alternative sources (such as other insurance

brokers or an expert witness). Further, the concurrent causation

analogy is inapt because, under those circumstances, the insured

still must prove the existence of a cause sufficient to explain

the loss. Here, however, the Patterson formulation would allow

Camper Corral to establish causation without ever proving an event sufficient to result in its loss.

¶30 Camper Corral also cites Appleton Chinese Food Serv.,

Inc. v. Murken Ins., Inc., 185 Wis. 2d 791, 519 N.W.2d 674 (Ct.

App. 1994), and Rainer v. Schulte, 133 Wis. 130, 113 N.W. 396

(1907), as examples of recovery without proof of insurability under

more favorable terms. It acknowledges that neither case explicitly

addressed the question, and we agree with that assessment. In the

Appleton Chinese Food Service case, the court of appeals recounted our prior statement that "'[a]n insurance broker is bound to 17 No. 2018AP458

exercise reasonable skill and diligence in the transaction of the

business entrusted to him and he will be responsible to his

principal for any loss from his failure to do so . . . .'"

Appleton Chinese Food, 185 Wis. 2d at 802–03 (alteration in

original; one set of quotation marks omitted) (quoting Master

Plumbers Ltd. Mut. Liab. Co. v. Cormany & Bird, Inc., 79

Wis. 2d 308, 313, 255 N.W.2d 533 (1977)). As a general statement

of law, that is undoubtedly true. But the statement does not

extend far enough to address the question here, which is whether

the broker's failure was actually responsible for the insured's

loss.

¶31 We had no need to address the issue in Rainer because we

resolved the case on grounds that did not relate to the plaintiff's

insurability under the requested terms. There, we considered an

alleged insurance agent's agreement to obtain an insurance policy

for his customer, which he failed to do before the customer

suffered a loss that would have been covered by the policy. In

considering a challenge to the sufficiency of evidence in support of the jury verdict, we said "it was immaterial whether the

defendant, at the time, had authority to represent and bind some

unnamed insurance company or some insurance agent. The defendant

certainly had authority to bind himself to procure such insurance."

Rainer, 113 N.W. at 397 (internal citations omitted). But that

statement responded to the alleged agent's defense that "at the

time of entering into said contract the defendant was not an

insurance agent, and was not authorized to enter into said contract for or on behalf of any insurance company or person whatsoever[.]" 18 No. 2018AP458

Id. What we said about immateriality is good support for the

proposition that an alleged agent's lack of authority to obtain

insurance is not a bar to a successful claim. But it does not

necessarily support the proposition that a promise to obtain

insurance is actionable without regard to whether the person was

insurable. As a general rule, if a defendant does not contest a

complaint's specific allegation, it is taken as admitted and the

parties do not contest it further. See Wis. Stat. § 802.02(4).9

The Ranier opinion does not say whether the defendant had put the

plaintiff's insurability at issue, and so the opinion's silence on

that subject may simply reflect that the defendant conceded the

issue.

¶32 But just as there are no cases authoritatively

establishing that Camper Corral need not prove an insurer would

have written a policy with the requested deductibles, there are no

cases authoritatively establishing the converse. A majority of

jurisdictions require, at the very least, evidence that a policy

with the requested terms was commercially available. See, e.g., Hawk v. Roger Watts Ins. Agency, 989 So.2d 584, 591 (Ala. Civ.

9 Wisconsin Stat. § 802.02(4) provides:

Averments in a pleading to which a responsive pleading is required, other than those as to the fact, nature and extent of injury and damage, are admitted when not denied in the responsive pleading, except that a party whose prior pleadings set forth all denials and defenses to be relied upon in defending a claim for contribution need not respond to such claim. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

19 No. 2018AP458

App. 2008) (lack of evidence that the desired coverage was

commercially available resulted in inability to establish

causation); Johnson & Higgins of Alaska Inc. v. Blomfield, 907

P.2d 1371, 1374-75 (Alaska 1995) (explaining that the majority

rule requires evidence of commercial availability); Bayly, Martin

& Fay, Inc. v. Pete's Satire, Inc., 739 P.2d 239, 244 (Colo. 1987)

(requiring plaintiff to introduce evidence of commercial

availability before requiring defendant to introduce evidence of

noninsurability); Tri-Town Marine, Inc. v. J.C. Milliken Agency,

Inc., 924 A.2d 1066, 1069-1070 (Maine 2007) (collecting cases).

But as discussed above, "commercial availability," while a

necessary condition to a successful claim, is not necessarily a

sufficient condition.

¶33 We find the Minnesota case Melin v. Johnson, 387

N.W.2d 230 (Minn. Ct. App. 1986), particularly helpful in

addressing the question of general versus particular availability

of the requested policy terms. In Melin, the plaintiff sought

long-term disability coverage through his insurance agent. Id. at 231. The agent obtained coverage through a group policy because

the plaintiff was not insurable under an individual policy. Id.

But the agent did not tell Mr. Melin that his coverage under the

group policy was less favorable than what he had expected. Id.

So Mr. Melin sued his agent for his "negligen[ce] in failing to

inform [him] of limitations contained in the insurance policy he

procured." Id. at 232. With respect to Mr. Melin's "negligent

procurement" cause of action, the court said that, "[w]ithout some evidence that reasonable care would have produced a better policy, 20 No. 2018AP458

there is no breach of duty under this doctrine." Id. A better

policy could not be produced, of course, unless the plaintiff was

actually insurable under the better terms. So the Melin court

concluded that "[i]f the jury's verdict was based on the theory

that [the agent] was negligent in his duty to procure insurance,

the evidence is conclusive against that verdict." Id. The same

result obtained with respect to the plaintiff's "negligent failure

to inform" cause of action.

¶34 Here in Wisconsin, we have hinted that availability of

the insurance policy to the particular plaintiff is important, not

just generalized commercial availability. In Wallace v.

Metropolitan Life Ins. Co., 212 Wis. 346, 248 N.W. 435 (1933), we

addressed causation in the context of an insurance company's

unreasonable delay in rejecting a life insurance application. In

that case, Mr. Bell, the prospective insured, did not know the

insurer had rejected his application before he died. Upon the

intended beneficiary's claim of negligence in notifying Mr. Bell

of the underwriting decision, the court concluded that "there is no evidence tending to show that the assured could have obtained

other insurance of the same kind and character." Id. at 436

(emphasis added). Without such evidence, it was "evident that

plaintiff has proved no damages." Id. Our conclusion did not

depend on the general commercial availability of life insurance

21 No. 2018AP458

policies in the desired amount, but instead on whether Mr. Bell in

particular was insurable.10

¶35 Wallace and Melin are consistent with our general

principles regarding causation. "Causation is not established by

testimony that even without defendant's negligence, the harm would

have occurred anyway." Beacon Bowl, Inc., 176 Wis. 2d at 788. It

necessarily follows that if the harm would have occurred even in

the absence of the defendant's negligence, then it is impossible

for the negligence to have been a "substantial factor in producing

[plaintiff's injury]." Baumeister, 277 Wis. 2d 21, ¶24; see also

10Chief Justice Roggensack says Wallace v. Metropolitan Life Ins. Co., 212 Wis. 346, 248 N.W. 435 (1933), "has no relevance" because it addressed life insurance whereas this case addresses casualty insurance. Dissent, ¶62. But she does not say why that difference affects the proposition that there can be no causation unless the plaintiff could have obtained a policy with the desired terms.

The dissent prefers Kukuska v. Home Mut. Hail-Tornado Ins. Co., 204 Wis. 166, 235 N.W. 403 (1931), in which we held that a farmer had a good cause of action for an insurer's failure to timely accept or reject an insurance application because, the dissent says——quoting Kukuska——"'had [the farmer] been seasonably notified, other insurance could have been readily obtained.'" Dissent, ¶63 (citing Kukuska, 204 Wis. at 173-74) (brackets in Chief Justice Roggensack's dissent). But the full sentence from which the dissent takes that quote shows that the case does not support the dissent's proposition. We said: "So that, upon any theory, the defendant would be liable to the plaintiff for the amount of damages sustained where it appeared, as the court found in this case, that, had he been seasonably notified, other insurance could have been readily obtained." Kukuska, 204 Wis. at 173-74 (emphasis added). This was not a normative statement; it was instead an observation that the circuit court had found, in that case, that the farmer could have readily obtained the insurance. Not that it was commercially available, but that it was obtainable. Camper Corral, of course, has not shown it could obtain an insurance policy with the desired deductible terms.

22 No. 2018AP458

Bayly, 739 P.2d at 244 ("[E]vidence that the type of insurance

sought by the plaintiff was not generally available in the

insurance industry when the broker or agent procured the

plaintiff's insurance policy, or that, even if this type of

insurance was generally available, the plaintiff nonetheless was

uninsurable" precluded a finding of causation (emphasis added)).

¶36 Based on these principles, and fortified by both Wallace

and Melin, we conclude that Camper Corral cannot prove causation

under the commercial availability theory in the absence of evidence

that it was insurable under a policy with more favorable terms.

Evidence establishing mere commercial availability demonstrates

only that someone may qualify for insurance under the specified

terms. It does not establish that the desired insurance terms

were available to Camper Corral in particular. Without evidence

that an insurer would have written a policy for Camper Corral with

more favorable terms, it is not possible to say that Mr. Alderman's

negligence was a substantial factor in causing the loss, and no

such evidence exists in this case. As far as the state of the record is concerned, it cannot be said that Camper Corral's loss

would not have happened in the absence of Mr. Alderman's

negligence. Indeed, Camper Corral's own expert testified that,

based on Camper Corral's claim history in 2011 and 2012, he did

not believe it would have qualified for a $1,000 hail deductible

per camper with a $5,000 total maximum deductible during the 2013-

2014 policy period. Therefore, the circuit court did not err in

holding there was no credible evidence from which the jury could

23 No. 2018AP458

find that Mr. Alderman's negligence caused Camper Corral's loss

under the commercial availability theory.11

¶37 Chief Justice Roggensack's dissent would make this an

entirely academic discussion by finding that Camper Corral proved

it was actually insurable under a policy with a $1,000 deductible

per unit and a $5,000 aggregate limit. Camper Corral did not make

that argument here, nor in the court of appeals, nor in the circuit

court. In fact, in the entire history of this case, Chief Justice

Roggensack is the only one who has suggested Camper Corral was

insurable under those terms. Even Mrs. Emer did not make this

claim in her testimony. What she said was that the summary sheet

from a Western Heritage insurance quote (Exhibit 103)12 led her to

believe that Camper Corral's insurance policy contained the

favorable deductible terms. But she never claimed the quote proved

11 Chief Justice Roggensack is worried that this conclusion "is unnecessarily harsh on the consumer" because it "will immunize misrepresentations by insurance agents who have superior knowledge of how to search the insurance industry to determine whether the insured was eligible for particularized insurance." Dissent, ¶61. It is not harsh at all. It simply prevents a plaintiff from imposing liability on a defendant for failing to procure something for which the plaintiff was not eligible. If the insurance agent's representations cause the insured to expose itself to risk it would not have undertaken if it had known it was not eligible for the requested insurance, the insured may have a reliance claim (as described below). If we were to agree with the Chief Justice, we would be awarding a windfall to Camper Corral by allowing it a recovery when there is no evidence any company would have insured it under the requested terms. Denying a recovery to which Camper Corral is not entitled is not harsh, it is just. 12In the trial, Mrs. Emer actually referred to Exhibit 8, which is the same as Exhibit 103. Exhibit 8 was not admitted into evidence, so we refer to Exhibit 103 instead.

24 No. 2018AP458

she was actually insurable under a policy with the $1,000/$5,000

deductible terms. Nor did anyone else, until the Chief Justice's

dissent. Indeed, Camper Corral's attorney even conceded this

specific point when he acknowledged that if Camper Corral were

required to prove it could have obtained a better policy during

the 2013-2014 policy period, then "the claim fails."13

13Chief Justice Roggensack also finds significance in the difference between Exhibit 103 (Western Heritage's quote from August 2, 2013) and Exhibit 106 (Western Heritage's revised quote from September 12, 2013). Based on those differences, the Chief Justice concludes that "nevertheless, Michael Alderman increased the deductible for hail damage. A review of Rhonda Emer's testimony in regard to the $7,493 premium she believed she paid and the coverage afforded by Exhibit 8, as also shown on Exhibit 103, comes in sharp contrast to the lower premium of Exhibit 106, which has a higher hail damage deductible." Dissent, ¶58.

This is erroneous for two reasons. First, the differences in the quotes are not necessarily attributable to some nefarious plan executed by Mr. Alderman. There is a much more innocent explanation, one offered by Mrs. Emer herself. She testified that the first quote was not acceptable to her because she wanted the policy's total coverage reduced from $800,000 to $300,000, and she wanted the per camper coverage increased from $25,000 to $50,000. So she rejected the quote contained in Exhibit 103.

Secondly, the Chief Justice's argument depends on the unsound assumption that Exhibit 103 proves Camper Corral was, in fact, eligible for $1,000/$5,000 deductible terms (which is not a warranted assumption, as described above). Although it is true that Exhibit 106 refers to the hail deductible on the summary page and Exhibit 103 does not, that has nothing to do with what the policy's actual terms would be. Both Exhibit 103 and Exhibit 106 indicate that the hail damage deductible would be found in Form WHI 26-0496.

25 No. 2018AP458

B. Reliance

¶38 Alternatively, Camper Corral says it can establish a

causal connection between Mr. Alderman's negligence and its loss

through the principle of detrimental reliance. It refers us to

Runia v. Marguth Agency, Inc., 437 N.W.2d 45 (Minn. 1989), as an

example of how this principle would function in the context of a

broker's failure to obtain an insurance policy on the terms

requested by the insured. The case involved an insured's request

that his agent obtain coverage on a snowmobile he owned. Id. at

46-47. The insured told the agent that the policy should cover

himself, his daughter, and any other individual who may use the

snowmobile. Id. The agent obtained a policy and attached the

coverage to the insured's homeowner's policy. Id. at 47. The

insured then loaned the snowmobile to his daughter, who was injured

in an accident while riding it with her fiancé. Id. In the

ensuing lawsuit, the insured's daughter obtained a judgment

against the fiancé, but the insurance company denied coverage

because only the father was covered by the policy it wrote. Id.

The Chief Justice suggests that, in making this point, we are not accounting for the binding nature of an insurance quote. Dissent, ¶59. This is not about whether a quote is binding, it is about what the quote's summary page says. The absence of a separate hail deductible on the quote's summary page does not prove the quote did not provide for a separate hail deductible. One of the unavoidable aspects of a summary is that, by definition, it is less than comprehensive. The absence of a piece of information on the summary page is not evidence it does not exist elsewhere in the quote, it is just evidence it didn't make it to the summary page. And, as already mentioned, the quote did say the hail deductible would be found in Form WHI 26-0496. So the absence of the hail deductible on the summary page proves precisely nothing.

26 No. 2018AP458

The court agreed the insurance company had no duty to indemnify.

Id.

¶39 There then arose a second lawsuit, this time against the

insurance agent for negligently failing to obtain an insurance

policy on the requested terms. Upon the question of whether the

failure to procure an insurance policy on those terms caused the

loss, the Runia court held that if the plaintiffs had known they

did not have the coverage they believed they had, they simply could

have "elect[ed] not to engage in the uninsured activity." Id. at

49. Thus, the court stated that "[l]iability attaches

independently of whether any insurance policies would have

provided the requested coverage." Id.

¶40 Camper Corral says it could have altered its behavior,

just like the Runia plaintiffs could have, if it had known its

policy had deductible limits higher than requested. For example,

it says it could have reduced or eliminated its on-site inventory,

or stored its inventory under cover, or made alternate arrangements

with the supplier, or stopped selling new campers altogether. Any of these alternatives, it argues, would have allowed Camper Corral

to minimize or eliminate its uninsured risk. And that, it

concludes, proves a causal connection between Mr. Alderman's

actions and its damages.

¶41 We do not preclude the possibility of proving causation

under the reliance theory, but we need not resolve the issue here.

Camper Corral offered the many ways by which it could have

mitigated or eliminated its exposure to high deductibles as theoretical possibilities. But it referred to no evidence in the 27 No. 2018AP458

record to suggest it actually would have availed itself of one of

these methods of risk mitigation. Because the record contains no

evidence that Camper Corral would have changed its business

practices had it known of the higher deductibles, the circuit court

did not err in concluding there was no credible evidence of

causation.

C. Camper Corral Forfeited Its Alternate Theories of Recovery ¶42 Finally, Camper Corral argues that it is entitled to damages under the benefit of the bargain rule because its

Complaint, although asserting a single negligence cause of action,

can nevertheless be construed as having stated claims for breach

of contract and strict responsibility misrepresentation.

According to Camper Corral, these alternate theories of recovery

are available because the circuit court's decision was actually a

decision on a summary judgment motion rather than a motion for a

directed verdict. This is so, says Camper Corral, because the

circuit court relied on materials outside the trial record in

reaching its decision. We disagree, for two reasons. ¶43 First, the court of appeals properly analyzed Camper

Corral's argument that the circuit court actually decided the

motion as a request for summary judgment rather than a directed

verdict. See Emer's Camper Corral, LLC, 386 Wis. 2d 592, ¶13

(explaining that it would review the circuit court's ruling under

the directed verdict standard because the circuit court did not

cite evidence outside the trial record in the portion of its written decision addressing Mr. Alderman's causation argument and

28 No. 2018AP458

that the expert deposition testimony the circuit court referenced

was read to the jury at trial). We agree with the court of appeals

and see no need to further expand upon its rationale.

¶44 Second, and perhaps more importantly, we will not

consider these issues because Camper Corral did not present them

to us in its petition for review. See Wis. Stat. § (Rule)

809.62(6) ("If a petition is granted, the parties cannot raise or

argue issues not set forth in the petition unless ordered otherwise

by the supreme court."). Here, Camper Corral's petition for review

identified one issue: "In a suit for failure to procure requested

insurance, must the plaintiff prove causal damages by showing she

could have personally obtained an insurance policy equal to or

better than the policy promised to her by her agent?" Camper

Corral acknowledges that its petition did not list its alternate

theories of recovery as reviewable issues, but says its summary of

its position in a lengthy footnote adequately preserved them for

presentation in their merits briefs. However, our order granting

review in this case said that Camper Corral "may not raise or argue issues not set forth in the petition for review unless otherwise

ordered by the court . . . ." We have been presented with no

adequate reason for departing from the terms of our order, and

therefore will not address Camper Corral's alternative theories of

recovery.14

14The court of appeals likewise declined to address Camper Corral's alternate arguments regarding breach of contract and strict responsibility misrepresentation because Camper Corral failed to raise the arguments in the circuit court. Emer's Camper Corral, LLC, 386 Wis. 2d 592, ¶¶26-27.

29 No. 2018AP458

IV. CONCLUSION

¶45 In a cause of action for negligent procurement of an

insurance policy, the insured cannot establish the insurance

agent's negligence was a "substantial factor" in causing its loss

under the commercial availability theory without evidence that a

policy with the requested terms was available to the insured.15

Because Camper Corral failed to introduce any evidence that it was

eligible for an insurance policy with the requested deductible

limits, we conclude that the circuit court did not err in granting

Mr. Alderman's motion for a directed verdict.

By the Court.—The decision of the court of appeals is

affirmed.

15Our decision today does not foreclose the possibility of establishing causation under the reliance theory.

30 No. 2018AP458.pdr

¶46 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The

majority opinion is wrong on the law and wrong on the facts.

First, it creates a new and rigid evidentiary burden for causation

that immunizes an insurance agent's misrepresentations about the

insurance policy he said that he was providing and the policy he

actually provided, all at the expense of the consumer.1 Second,

even if I were to accept the new evidentiary burden the majority

opinion places on insureds, Rhonda Emer's trial testimony and trial

Exhibit 103 provided a factual basis to show that coverage with a

$1,000/$5,000 deductible for hail damage that she thought she

bought was commercially available and that Camper Corral was

eligible for that coverage during the 2013-14 policy term from

Western Heritage because those are the terms that were on the

exhibit provided to Camper Corral. Accordingly, I respectfully

dissent.

I. BACKGROUND

¶47 This case was tried, in part, before a jury based on Camper Corral's claim that insurance agent, Michael Alderman,

negligently did not provide the insurance policy for Camper Corral

that he represented to Rhonda Emer that he was providing.2 Rhonda

Emer based her claim on statements that her insurance agent,

Michael Alderman, made orally and as provided in Exhibit 8, a quote

from Western Heritage that he reviewed with her at their meeting

for the 13/14 insurance renewal. In support of her belief that

1 Majority op., ¶3. 2 R. at 107, 65-66.

1 No. 2018AP458.pdr

she had purchased a 2013-14 year policy that had a $1,000 hail

damage deductible with a $5,000 cap (hereinafter $1,000/$5,000),

Rhonda Emer testified about deductibles for hail damage that she

believed Camper Corral purchased based on what Michael Alderman

told her and the quote from Western Heritage that he reviewed with

her:

Q. I am showing you now what has been marked as Exhibit 8. Do you recognize that document? Just looking at the first page, do you recognize this document, the first page?

A. Yes, definitely.

Q. Can you describe what that first page is?

A. Yes, it's a cover letter from Jensen-Sundquist signed by Michael Alderman.

Q. Okay. Do you recall receiving that?

A. Yes, I do.

Q. When did you receive it?

A. I received that at our meeting for the '13/'14 renewal.[3]

. . . .

Q. What is the date on the first page of Exhibit No. 8?

A. August 6, 2013.[4]

Q. I'd like to turn your attention to Page No. 2.

A. Okay.

3 R. at 107, 146. 4 R. at 107, 148.

2 No. 2018AP458.pdr

Q. Do you recognize that document?[5]

Q. And can you describe for the jury what that document is?

A. This is a summary page, a declaration page that is a snapshot of your deductibles for a certain policy term.

Q. Okay. And what are your deductibles for wind and hail?

A. Okay. Well, this is where it gets explained to me by Mr. Alderman in person.

Q. I am asking you --

Q. Review Page No. 2 of Exhibit 8, and tell me what your deductibles are for wind and hail.

A. My deductible for wind and hail is $1,000 per unit with a $5,000 maximum aggregate out-of-pocket.

A. It says under dealer physical damage comp and collateral 1,000/5,000.[6]

Q. Is there anything in that document that specifically defines what the deductible for hail would be?

A. Yes. Under dealer physical damage comp and collateral is marked as 1,000/5,000 maximum aggregate.[ ] 7

5 Id. 6 R. at 107, 149. 7 Id., 154.

3 No. 2018AP458.pdr

Q. Okay. And during this conversation with Mr. Alderman, when you saw Exhibit 8 for the very first time, did you confirm with him -- did you ask him to make sure that you only had a $1,000 hail deductible?

A. Oh, most certainly, and then he pointed it out to me.[8]

Q. Okay. And how long was it after that meeting that you got the policy?

A. I never received the policy.

Q. Ever?

A. Not until I requested it after my hailstorm.

Q. When was your hailstorm?

A. September 3rd of 2014.[9]

Q. And what is the premium for 2013-'14?

A. $5,200 plus -- well, actually it's more than that. It's $7,493 . . . .[10]

Q. I am asking about the quote, Exhibit No. 8.

A. Yes.[11] ¶48 Through her testimony set out above, which is supported by trial exhibits, Rhonda Emer explained at least two things that

are important to this appeal. First, her testimony and Exhibit

103, dated August 2, 2013 provided a factual basis to show that

Camper Corral was eligible for a $1,000/$5,000 hail damage

8 Id., 158. 9 Id., 163. 10 R. at 108, 9. 11 Id., 10.

4 No. 2018AP458.pdr

deductible for the 2013-14 year, notwithstanding its history of

hail damage, because those are the terms that were on the exhibit

provided to Camper Corral.12 And second, the terms of what she

thought she bought in August 2013 changed between the time when

Michael Alderman reviewed the quote for the 2013-14 policy year

with her and when she made her claim for damages due to the

September 3, 2014 hail storm.13

II. DISCUSSION

A. Standard of Review

¶49 The circuit court dismissed this case based on a motion

for a directed verdict, pursuant to Wis. Stat. § 805.14(3), and on

summary judgment, pursuant to Wis. Stat. § 802.08, during a jury

trial. In either case, judgment cannot be granted to a movant if

there is any dispute of material fact. Anthony Gagliano & Co.,

Inc. v. Openfirst, LLC, 2014 WI 65, ¶¶30-32, 355 Wis. 2d 258, 850

N.W.2d 845.

¶50 Although we have said that an appellate court should not

overturn a circuit court's dismissal on directed verdict unless the circuit court is "clearly wrong," a circuit court is clearly

wrong "when there is any credible evidence to support the position

of the non-moving party." Id., ¶30. Furthermore, we review

independently whether there is any credible evidence to support

the non-moving party's position. Id., ¶32.

¶51 We also independently review whether summary judgment

was properly granted, employing the same standards as the circuit

12 Id., Ex. 103. 13 Id., Ex. 106.

5 No. 2018AP458.pdr

court and the court of appeals, while "benefitting from their prior

discussions." Id., ¶33 (citing City of Janesville v. CC Midwest,

Inc., 2007 WI 93, ¶13, 302 Wis. 2d 599, 734 N.W.2d 428).

B. Directed Verdict/Summary Judgment

1. Directed verdict

¶52 The standard under which a directed verdict may be

granted during a jury trial is set out in Wis. Stat. § 805.14(3),

which provides:

At the close of plaintiff's evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was granted and shall render judgment against the plaintiff. In regard to the particularity for its decision, the circuit

court's Order of January 26, 2018 provided:

This Court does not find that Alderman's conduct was so obviously negligent as a matter of law, as such, expert testimony is necessary to ascertain whether Alderman's conduct fell within the scope of the usual care exercised by insurance professionals under the circumstances. . . .[14]

In this case, Camper Corral has failed to produce any evidence that a policy was available or could have been available in the insurance market for the September 30, 2013-September 30, 2014 time period with a $1,000.00 per auto/camper deductible and a $5,000.00 aggregate for wind, hail, earthquake, and flood for Camper Corral. Further, Camper Corral has produced no evidence to demonstrate that Michael Alderman misrepresented the insurance coverage. . . .

Based on the evidence provided, along with the fact that the cause of action pleaded by Camper Corral against

14 R. at 86, 3

6 No. 2018AP458.pdr

Alderman for professional negligence requires expert testimony at the time of trial, and that Camper Corral has failed to provide any evidence where a reasonable jury could find that Alderman were a direct and proximate cause to the damages sustained by Camper Corral, and that expert testimony was needed to prove causation in this matter, the Court grants Alderman's motion.

IT IS HEREBY ORDERED that: Judgment for the Defendant is GRANTED.[15] ¶53 The circuit court's decision that dismissal was required

in part because Camper Corral did not provide expert testimony

about standards applicable to insurance agents is without legal

foundation and is clearly wrong in at least two respects. First,

no expert testimony is necessary to prove that an insurance agent

misrepresented the terms of the policy that he sold to an insured.

All that is needed to reach the jury on misrepresentation is trial

testimony showing Alderman made a representation of material fact;

it was untrue; Rhonda Emer believed the representation to be true;

and she reasonably relied on it to the damage of Camper Corral.

Whipp v. Iverson, 43 Wis. 2d 166, 169, 168 N.W.2d 201 (1969).

Benefit of the bargain is the legal measure of damages for

detrimental reliance, i.e., the difference between the payment

Camper Corral would have received for the 2014 hail damage if the

deductible had been $1,000/$5,000 and what she actually was paid.

Appleton Chinese Food Serv., Inc. v. Murken Ins., Inc., 185 Wis. 2d

791, 808, 519 N.W.2d 674 (Ct. App. 1994) (concluding that damages

are measured by the terms of the policy that the insurance agent

failed to provide). Michael Alderman asserted he did not represent

that the 2013-14 policy had hail damage deductible of

15 Id., 7.

7 No. 2018AP458.pdr

$1,000/$5,000. This created a dispute of material fact that the

jury should have decided and on which no expert testimony was

required.

¶54 Second, Camper Corral's trial did produce evidence that

a policy with a $1,000/$5,000 deductible for hail damage was

commercially available and that Camper Corral was eligible to

purchase it. The circuit court, the court of appeals and the

majority opinion ignore Exhibits 103 and 10616 and Rhonda Emer's

testimony, which is repeated above, that discusses the Western

Heritage quote that Michael Alderman gave her shortly after August

6, 2013, which shows Camper Corral's eligibility for that policy

(Exhibit 8).17

¶55 Rhonda Emer's testimony points out differences in the

quotes: the dates are different, the premiums for the year are

different, and the statement about deductibles for hail damage are

different. Exhibit 103's quote is dated August 2, 2013 and Exhibit

106's quote is dated September 12, 2013. Exhibit 103 has a

$1,000/$5,000 deductible, without singling out hail damage, but its premium for this coverage was $7,493 per year. Exhibit 106

has a notation at the bottom that said, "$5,000 DEDUCTIBLE APPLIES

TO WIND, HAIL, EARTHQUAKE AND FLOOD."18 However, with that

16 Michael Alderman identified Exhibit 106. R. at 108, 86.

Each of Western Heritage's quotes for Camper Corral is 17

titled "Garage Premium Summary." Exhibits 8, 103 and 106 are quotes from Western Heritage.

This statement about deductibles was not on exhibit 8, 18

which Michael Alderman gave to her in early August 2013.

8 No. 2018AP458.pdr

additional clause limiting payment for hail damage, the annual

premium was reduced to $4,399.

¶56 To explain more fully, the hail damage larger deductible

shown on Exhibit 106 is not shown on Exhibit 103; the only notation

about deductibles on Exhibit 103 is $1,000/$5,000 for "Comp &

Coll." Hail is not mentioned. The policy premium shown on Exhibit

103 is $7,493, which is the amount that Rhonda Emer testified

Camper Corral paid. Therefore, Exhibit 10319 combined with Rhonda

Emer's testimony about Exhibit 8 shows that the deductible limits

that she thought Camper Corral had purchased were commercially

available from Western Heritage and Camper Corral was eligible for

them at the $7,493 premium she agreed to pay in early August 2013.

¶57 Michael Alderman testified that Camper Corral's premium

and coverage are shown in Exhibit 106, which is a quote stating,

"$5,000 DEDUCTIBLE APPLIES TO WIND, HAIL, EARTHQUAKE AND FLOOD"

for an annual premium of $4,399. The increased deductible for

hail damage and the lower premium on Exhibit 106 create a dispute

of material fact, as Rhonda Emer testified that she paid $7,493 for her 2013-14 insurance that provided a $1,000/$5,000 deductible

for hail damage.

¶58 In light of two previous hailstorms that each created

damage in excess of $100,000, reducing the deductible for hail

damage was a major concern for Rhonda Emer, but nevertheless,

Michael Alderman increased the deductible for hail damage. A

review of Rhonda Emer's testimony in regard to the $7,493 premium

she believed she paid and the coverage afforded by Exhibit 8, as

19 Michael Alderman identified Exhibit 103. R. at 108, 77.

9 No. 2018AP458.pdr

also shown on Exhibit 103, comes in sharp contrast to the lower

premium of Exhibit 106, which has a higher hail damage deductible.

¶59 The majority opinion's response to Rhonda Emer's

testimony is that Exhibit 103 is only a quote and therefore, it

"has nothing to do with what the policy's actual terms would be."20

However, an insurance quote is a proposal by an insurance company

of the terms under which it will provide insurance and the cost

thereof. Kimberly J. Winbush, Supplement, Validity, construction,

and effect of assault and battery exclusion in liability insurance

policey at issue, 44 A.L.R. 5th 91 (1996) (citing Regis Ins. Co.

v. All American Rathskeller, Inc., 976 A.2d 1157, 1167 (Pa. Super.

Ct. 2009) (discussing a "pre-insurance quote" that identified

subsequent limitations of the policy's coverage)). Accordingly,

the quote given to Rhonda Emer has probative value in regard to

the terms of the policy that she could expect would follow.

¶60 The majority opinion drifts into further error when it

fails to recognize that "there may be several substantial factors

contributing to the same result." Blashaski v. Classified Risk Ins. Corp., 48 Wis. 2d 169, 175, 179 N.W.2d 924 (1970). As we

have explained, "[a]n injury may be produced by several substantial

factors, acting in sequence or simultaneously, and responsibility

need not be restricted to the last and most immediate factor."

Stewart v. Wulf, 85 Wis. 2d 461, 469, 271 N.W.2d 79 (1978)

(citation omitted). "Cause is a question for the jury unless the

facts are so clear that reasonable persons could not differ on the

question." Id. (citation omitted). Michael Alderman's failure to

20 Majority op., ¶37, n.13.

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provide the insurance policy he said he was providing is a

substantial factor in causing Camper Corral's damage.

¶61 Furthermore, although Camper Corral provided proof

sufficient to reach a jury on whether a policy with $1,000/$5,000

was commercially available and that Camper Corral was eligible to

obtain it, I object to those requirements becoming legal

requirements for causation in Wisconsin. The majority opinion is

unnecessarily harsh on the consumer and, as it has in this case,

will immunize misrepresentations by insurance agents who have

superior knowledge of how to search the insurance industry to

determine whether the insured was eligible for particularized

insurance.

¶62 In addition, the majority opinion relies on Wallace v.

Metro. Life Ins. Co., 212 Wis. 346, 248 N.W. 436 (1933), to reason,

"we have hinted that availability of the insurance policy to the

particular plaintiff is important, not just generalized commercial

availability."21 However, Wallace addressed life insurance for a

man with a known heart defect that permanently precluded his insurability. Stated otherwise, Wallace could not change the

condition of his heart; it always would affect his insurability.

Therefore, Wallace's reasoning that "there is no evidence tending

to show that the assured could have obtained other insurance of

the same kind and character," id. at 350, has no relevance in

regard to insuring for hail damage. This is so because in any

given year, hail may not be a factor affecting property damage for

Camper Corral, but Wallace's heart condition always would be a

21 Majority op., ¶34.

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factor affecting his actuarial longevity. Also, Wallace

distinguished Kukuska v. Home Mut. Hail-Tornado Ins. Co., 204

Wis. 166, 235 N.W.403 (1931), which dealt with insurance coverage

more analogous to the case-at-hand.

¶63 In Kukuska, a farmer applied for crop insurance against

hail damage in early July of 1928. Id. at 167. On August 1, 1928,

the farmer was notified that his application had been rejected.

Id. at 168-69. That same day, a "violent hailstorm" damaged the

farmer's crops. Id. at 169. We concluded that "had [the farmer]

been seasonably notified, other insurance could have been readily

obtained" and we affirmed the judgment in favor of the farmer.

Id. at 173-74. We did not place the burden on Kukuska that the

circuit court placed and the majority opinion now places on Camper

Corral. Here there was no circuit court finding about whether

insurance with a $1,000/$5,000 deductible for hail damage could,

or could not, have been obtained. Rhonda Emer's testimony, quoted

above, simply was ignored.

¶64 The majority opinion presumes that reliance provides an alternative theory for plaintiffs in insurance cases such as this,

which is why it concludes that its decision is not harsh on

consumers.22 It faults Rhonda Emer for not explaining what she

would have done differently had she realized that Camper Corral

was underinsured. But what she would have done would be

speculation because she believed Camper Corral was properly

insured until after the September 3, 2014 hail storm. Given the

22 Majority op., ¶36, n.11.

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vigorous defense that counsel for the defendants provided,

speculation would never have found its way to the jury.

¶65 And finally, were I writing for the majority, I would

conclude that once general commercial availability in the

insurance industry has been shown by the plaintiff, plaintiff has

satisfied its burden in regard to causation. Johnson & Higgins of

Alaska Inc. v. Blomfield, 907 P.2d 1371, 1374-75 (Alaska 1995);

Bayly, Martin & Fay, Inc. v. Pete's Satire, Inc., 739 P.2d 239,

244 (Colo. 1987). If it is raised, uninsurability then becomes an

affirmative defense for which the defendant bears the burden of

proof. Id. In that manner, the entirety of causation for alleged

negligence by an insurance agent can be placed before the finder

of fact.

2. Summary Judgment

¶66 We also have said that summary judgment, which rests on

a legal conclusion by the court, can rest on the same legal theory

as a directed verdict. Gagliano, 355 Wis. 2d 258, ¶32 (citing

Steven V. v. Kelly H., 2004 WI 47, ¶35, 271 Wis. 2d 1, 678 N.W.2d 856). Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law. Sands v. Menard, 2017 WI 110, ¶28, 379 Wis. 2d

1, 904 N.W.2d 789; Wis. Stat. § 802.08(2).

¶67 Wisconsin Stat. § 802.08(2) provides in relevant part:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

13 No. 2018AP458.pdr

When a motion for summary judgment is made before trial, we begin

our review by determining whether the complaint and answer are

sufficient to join issue. Schwegel v. Milwaukee Cty., 2015 WI 12,

¶20, 360 Wis. 2d 654, 859 N.W.2d 78. Then, we examine the moving

party's affidavits that support the motion and affidavits that

oppose the motion. Id. Here, summary judgment was granted during

the course of a jury trial. Therefore, my starting point in this

discussion differs from Schwegel; however, the ultimate test

remains the same. Summary judgment can be granted only when there

is no dispute of material fact. Id.

¶68 Here, the circuit court ignored disputes of material

fact and, as a legal conclusion, held that judgment should be

entered for Michael Alderman. As I pointed out above, and will

not repeat here, there was credible evidence on disputes of

material fact, e.g., what did Michael Alderman tell Rhonda Emer

about the policy he sold to her. If the jury believed Rhonda

Emer's testimony and the related trial exhibits, the jury would

have ruled in her favor. Stated otherwise, taking all the testimony in the light most favorable to Camper Corral, there is

no legal principle upon which Camper Corral's claim of negligent

misrepresentation should have been taken from the jury and decided

by a court in favor of Michael Alderman.

¶69 And finally, every court has jumped the gun on this

case: First, the circuit court, who seemed to believe that

everything an insurance agent says is ok unless there is an expert

opinion saying that the agent's statement was not ok; second, the court of appeals, who decided the case by importing into Wisconsin

14 No. 2018AP458.pdr

law a new and heavy evidentiary burden on causation for insureds

who were told one thing by their insurance agents and found the

policy they were sold contained something else; and third, the

majority opinion of this court, that affirms the court of appeals

new evidentiary burden for proof of causation, but ignores trial

court exhibits and testimony that show the evidentiary burden it

creates actually was met at trial.

III. CONCLUSION

¶70 In conclusion, the majority opinion is wrong on the law

and wrong on the facts. First, it creates a new and rigid

evidentiary burden for causation that immunizes an insurance

agent's misrepresentations about the insurance policy he said that

he was providing and the policy he actually provided, all at the

expense of the consumer.23 Second, even if I were to accept the

new evidentiary burden the majority opinion places on insureds,

Rhonda Emer's trial testimony and trial Exhibit 103 provide a

factual basis to show that coverage with a $1,000/$5,000 deductible

for hail damage was commercially available and that Camper Corral was eligible for that coverage during the 2013-14 policy term

because those are the terms that were on the exhibit provided to

Camper Corral. Accordingly, I respectfully dissent.

23 Majority op., ¶3.

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