MacHerey v. Home Insurance

516 N.W.2d 434, 184 Wis. 2d 1, 1994 Wisc. App. LEXIS 362
CourtCourt of Appeals of Wisconsin
DecidedApril 5, 1994
Docket92-0485
StatusPublished
Cited by16 cases

This text of 516 N.W.2d 434 (MacHerey v. Home Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacHerey v. Home Insurance, 516 N.W.2d 434, 184 Wis. 2d 1, 1994 Wisc. App. LEXIS 362 (Wis. Ct. App. 1994).

Opinions

SCHUDSON, J.

Mark Macherey and Alexander Figueroa appeal from a judgment of the trial court granting Home Insurance Company's motion for a directed verdict. We conclude that the trial court erred in granting Home's motion for a directed verdict. We also conclude, however, that the trial court properly granted Home's alternative motion for a new trial, based on the weight of the evidence, pursuant to § 805.15(1), Stats. Further, we conclude that Home waived its challenge to an evidentiary ruling of the trial court concerning the testimony of a police officer. Finally, we affirm the trial court's determination that, based on the facts of the case, the middle burden of proof was the appropriate burden of proof to submit to the jury.1

[5]*5I. FACTUAL BACKGROUND

On the night of October 25,1989, Alexander Figueroa was driving a car when he collided with Mark Macherey, who was driving a motorcycle. Figueroa then turned his car around and drove back to the scene of the collision and collided again with Macherey who, by this time, was off his motorcycle. Macherey was injured and sued Figueroa, alleging that he was negligent in the operation of his car. Home Insurance Company, Figueroa's auto insurer, cross-claimed for declaratory relief, alleging that Figueroa's actions were intentional and, therefore, excluded from coverage under the policy.

Following a bifurcated trial on the issue of coverage, a jury unanimously concluded that Figueroa's actions were not intentional. The trial court, however, granted Home's motion for a directed verdict,2 reasoning that Figueroa:

. . . never swerved, braked, or sounded his horn. Where an actor's conduct is substantially certain to result in injury, the existence of such intention may be inferred as a matter of law without regard to the actor's claimed intent. Based on Figueroa's testi[6]*6mony alone, intent to harm should be inferred as a matter of law.

At the trial, witnesses offered substantially different versions of the event. Macherey and Figueroa did not know each other. Macherey remembered little about the events. His versions, related both through his testimony and that of the police who interviewed him shortly after the collisions, suggested that he lost control of his motorcycle and was hit by Figueroa's car, first while he was on the motorcycle, and next after he had fallen off. Figueroa's versions, both in testimony and through police interviews, suggested that he was frightened by Macherey and hit him first when Macherey blocked his way. Figueroa said that when he then made a U-turn and returned to the scene to "see what happened," he panicked, accelerated, and hit Macherey who seemed to stumble out in front of him. Figueroa said, however, that he didn't see Figueroa before striking him the second time, or that he saw him "a few seconds — a second maybe before the second impact." Figueroa acknowledged his drinking before the accident, his negligence in the operation of his car, and his bad judgment in leaving the scene after the second collision. He denied, however, any intent to strike Macherey.

Three eye-witnesses offered their versions. Linda Gleesing, testified, in part:

Q: Mrs. Gleesing, you were an eye-witness to the accident and from everything you saw and heard with regard to the accident where the pedestrian was struck by the automobile, do you have any reason to believe that the driver's car intentionally struck Mr. Macherey?
[7]*7A: No.
Q: You have absolutely.no reason?
A: No.3

Two other witnesses, Richard Stanton, through his deposition, and Steve Clemens, through trial testimony, provided accounts in which they stated their beliefs that, based on their observations of the second collision, Figueroa's conduct was intentional.

II. DIRECTED VERDICT

A jury verdict will be sustained if there is any credible evidence to support it. Where a trial court has set aside a jury's verdict, the standard for appellate review "is 'whether there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings. The evidence is to be viewed in the light most favorable to the verdict.'" Grutzner v. Kruse, 87 Wis. 2d 38, 40-41, 273 N.W.2d 373, 375 (Ct. App. 1978) (citation omitted). See also Thompson v. Howe, 77 Wis. 2d 441, 448, 253 N.W.3d 59, 63 (1977) (The test is whether "there is any credible evidence which under a reasonable view would support a verdict contrary to that which is sought."); Leatherman v. Garza, 39 Wis. 2d 378, 387, 159 N.W.2d 18, 22 (1968).

This standard of review applies even when a trial court disagrees with the jury. If there is credible evidence to sustain the verdict, "' "even though it be [8]*8contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict of this jury must stand."'" Bergmann v. Insurance Company of North America, 49 Wis. 2d 85, 88, 181 N.W.2d 348, 350 (1970) (citation omitted). Only in the rare case, where the facts are undisputed and the required verdict is absolutely clear, should the trial court reverse the jury's conclusion. Millonig v. Bakken, 112 Wis. 2d 445, 450-51, 334 N.W.2d 80, 83-84 (1983). When, on the other hand, more than one reasonable inference may be drawn from the evidence at trial, this court must accept the inference drawn by the jury. Heideman v. American Family Ins. Group, 163 Wis. 2d 847, 863, 473 N.W.2d 14, 21 (Ct. App. 1991). Further, it is not for this court to weigh the credibility of the witnesses or to search the record on appeal for evidence to sustain a verdict that the jury could have reached, but did not. Fehring v. Republic Ins. Co., 118 Wis. 2d 299, 305-06, 347 N.W.2d 595, 598 (1984).

Application of this standard exposes the trial court's error. The trial court stated:

Where an actor's conduct is substantially certain to result in injury, the existence of such intention may be inferred as a matter of law without regard to the actor's claimed intent.... Based on Figueroa's testimony alone, intent to harm should be inferred as a matter of law.

Figueroa, however, denied intent. Although the jury was free to reject his denial and conclude, as the trial court did, that his actions established his intent, the jury was not required to do so. Although such intention "may be inferred" by the jury, such intention remains a factual issue for the jury's assessment based on the evidence.

[9]

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MacHerey v. Home Insurance
516 N.W.2d 434 (Court of Appeals of Wisconsin, 1994)

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Bluebook (online)
516 N.W.2d 434, 184 Wis. 2d 1, 1994 Wisc. App. LEXIS 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macherey-v-home-insurance-wisctapp-1994.