Scholmer ex rel. Bye v. Perina

CANE, P.J.

(dissenting). I would conclude that (1) the evidence is sufficient to sustain the verdict finding a loss of a larger settlement; (2) public policy does not bar the claim; and (3) a legal malpractice verdict does not provide an exception to the general rule that pre-verdict interest is not allowed in this state; the award for loss of use of a settlement amounts to prohibited pre-verdict interest.

*897SUFFICIENCY OF THE EVIDENCE AND EVIDEN-TIARY RULINGS

Perina does not directly challenge the jury's finding that his inaction was a form of negligence; rather, he argues that the evidence failed to prove that his negligence caused damage, in other words, that there was no basis to find that the farm machinery manufacturer, A.O. Smith, and its insurer would have settled the claim for more at an earlier date even if Perina had pursued the issue properly. In a legal malpractice action, the client has the burden of showing that the attorney's negligence caused injury. Lewandowski v. Continental Cas. Ins. Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284, 287 (1979). A jury verdict cannot stand on conjecture, unproved assumptions or mere possibilities. Schwalbach v. Antigo Elec. & Gas, 27 Wis. 2d 651, 655, 135 N.W.2d 263, 265 (1965). Perina points to the absence of any evidence from A.O. Smith's insurer indicating that it would have consented to a larger settlement.

However, the jury's conclusion that the insurance company would have voluntarily agreed to settle for a larger sum, implicit in their finding of causal negligence, is not mere conjecture. Attorney Robert Weisel rendered an expert opinion of the prior value of the case based in part on his experience as a former field claims adjuster, branch office manager and home officer supervisor for an insurance company; his extensive work as an attorney in insurance defense work; and his experience in trial of either side of negligence cases, both as a judge and an attorney. The expert opinion of an attorney is a basis upon which a jury may set the value of a claim. See Milwaukee Auto. Mut. Ins. Co. v. National Farmers Union Prop. & Cas. Co., 23 Wis. 2d 662, 669, 128 N.W.2d 12, 15 (1964).

*898Credibility of witnesses and the weight to give to their testimony are left to the judgment of the jury, and where more than one reasonable inference can be drawn from the evidence, the reviewing court must accept the inference drawn by the jury. Shawver v. Roberts Corp., 90 Wis. 2d 672, 681, 280 N.W.2d 226, 230 (1979). Here, the jury was entitled to infer from Weisel's testimony, coupled with the evidence of an ultimate settlement that, but for Perina's failure to file his lawsuit, conduct discovery and pursue settlement while the evidence was fresh, the insurance company would have acceded to a higher figure in 1982.

Perina also complains that the court did not use the usual "trial within a trial" method to establish the probable outcome had the case been properly handled. The trial procedure used in this case may be attributable to the fact that the underlying claim was ultimately settled and not tried. Our supreme court has stated:

Regardless of the approach used to resolve the issue of liability and damages in a legal malpractice case the ultimate goal should be to determine what the outcome should have been if the issue had been properly presented in the first instance . . ..
The general rule should be adapted to the facts of the particular case . . .. Situations can be readily conceived where it would be difficult to determine the value of an original action which could not be tried, but it is the duty of the courts to fashion a remedy as best they can.

Lewandowski, 88 Wis. 2d at 281, 276 N.W.2d at 289 (emphasis in original). This trial court fashioned an appropriate remedy to meet the circumstances presented.

Perina also argues that it was error to allow Weisel to express an opinion based upon his experience as a *899former circuit judge because a jury is inclined to give undue weight to the opinion of a judge on the question of the reasonableness of a settlement in a lawsuit. Perina cites Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 362 N.W.2d 118 (1985). Perina's challenge was not raised in the trial court and was therefore not preserved as an issue on appeal. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140, 145-46 (1979). However, even had the issue been raised, Helmbrecht is not on point. The concern in Helmbrecht arose in an entirely different context. The jury was called upon in a legal malpractice action to assess the reasonableness of the settlement in an earlier divorce action. The attorney at trial called the judge who had presided over the divorce proceedings to testify to what he would have done had the case not been settled. The Helmbrecht court rejected the use of the divorce judge's testimony for two reasons: First, such a practice could force the judge as a witness for one of the original parties to have to defend his own actions in the original suit, thereby raising the potential for the appearance that the judge had not been impartial; second, the question for the malpractice jury is what a reasonable judge in a bench trial would have awarded, not what a particular judge would have done. Id. at 105-06, 362 N.W.2d at 125. In contrast, Weisel had no connection with the former proceedings in any capacity, and his opinion was properly phrased in terms of a reasonable value, not the value he would have set as the presiding judge.

Perina next argues that the court erred by excluding evidence that part of the structured settlement of $1,036,236 belonged not to Lyle but to his parents. The structured settlement included the purchase of an annuity that paid the sum of $1,500 per month to Lyle's mother until he reached the age of eighteen to be used *900for his care and treatment. While tort law permits a parent to claim expenses for care and treatment of an injured minor child, all of the parties to the original lawsuit, including the parents, treated the annuity as part of Lyle's settlement because the funds were to be used for his benefit. Lyle's attorney fee was calculated in part on the basis that the award belonged to Lyle. The parents ultimately withdrew any claim against Perina for their losses. This amounted to a stipulation that the settlement belonged to Lyle to be administered through his mother. The court did not abuse its discretion by excluding reference to this fact to the jury. The court noted that the evidence would open a whole line of inquiry with respect to the nature of structured settlements causing undue delay and confusion. This court will not set aside a trial court's ruling on admission of evidence where it has properly stated the reasons for its discretionary decision in a situation where the exercise of discretion is appropriate. Featherly v. Continental Ins. Co., 73 Wis. 2d 273, 282, 243 N.W.2d 806, 813 (1976).

PUBLIC POLICY CONSIDERATIONS

Perina next argues, and the majority agrees, that even if the plaintiff established causal negligence, public policy dictates that the claim be rejected. I disagree. Generally, liability will follow a proper finding of causal negligence:

However, negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that the defendant is liable for the plaintiffs injuries. The determination to not impose liability in instances where a negligent act has been committed and the act is a 'substantial fac*901tor' in causing the injury rests upon considerations of public policy.

Coffey v. City of Milwaukee, 74 Wis. 2d 526, 541, 247 N.W.2d 132, 140 (1976) (citations omitted).

The majority correctly states that our supreme court has held that even where the chain of causation is complete and direct, recovery may be denied if: (1) The injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tort-feasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; (4) because allowance of recovery would place too unreasonable a burden on the negligent tortfeasor; (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point. Id. The cases in which a causally negligent tortfeasor is relieved of liability are infrequent and present unusual and extreme considerations. Stewart v. Wulf, 85 Wis. 2d 461, 479, 271 N.W.2d 79, 88 (1978).

I also agree that among the various criteria set forth, only (6), the absence of a sensible or just stopping point, has application here. In respect to that criterion, the parties dispute the applicability of this court's holding in Bolte v. Joy, 150 Wis. 2d 744, 443 N.W.2d 23 (Ct. App. 1989), to the present circumstances. In Bolte, this court approved the trial court's dismissal of a legal malpractice action on policy grounds. In that case, the client, Bolte, had sued his fire insurer, but a jury found that the client had set the fire himself. When a new trial was ordered, the insurer settled the client's claim. The client then sued his attorney, alleging negligence in failing to discover in the process of trial preparation that an eyewitness had given a description of the arsonist that excluded the client from suspicion. The client thus *902sought damages from his attorney for loss of business and professional reputation, and for mental anguish from the bad publicity engendered from the news stories about the trial and jury verdict. This court dismissed the claim and adopted the trial court's rationale:

If a party is permitted to sue his trial attorney for consequential damages even though he has received the remedy originally sought in the action, no legal check would remain on claims against trial lawyers by their clients. In a highly publicized case, one can imagine mental anguish or consequential damage claims based on counsel's failure to ask a question, failure to object to a question, failure to convince a judge that an objection was proper, failure to prevail on a motion in limine as to certain evidence . . . the list could go on and on.

Id. at 250-51, 443 N.W.2d at 25-26. Bolte is easily distinguished on its facts. The client there "received the remedy originally sought," here he did not; the client there sought consequential damages arising out of the manner in which the desired result was reached, the client here seeks only the original result to which he was entitled from the start.

It is possible to hypothesize future malpractice actions arising out of attorneys' delay in settling claims where a much shorter delay is involved than was the case here, thereby subjecting attorneys to malpractice actions where there is no just or sensible stopping point. The negligence and causation found here, however, is not so unusual that we should invoke the drastic remedy of public policy to set aside the jury verdict and bar the claim. I recognize the majority's concern, but whether the delay was unreasonable can be determined through the inquiry of whether such action was causally negligent. We have not hesitated to impose a similar burden *903on the medical profession to act timely in order to avoid injury, and I see no reason to make an exception for the legal profession.

LOSS OF USE OF SETTLEMENT FUNDS

The jury awarded Lyle the sum of $406,000 for the loss of use of the larger settlement figure of $1,270,000 for the three years that Perina negligently failed to pursue the matter. Pre-verdict interest reflects the value of the use of money. Anderson v. LIRC, 111 Wis. 2d 245, 259, 330 N.W.2d 594, 601 (1983). The witness testified to the amount of simple interest a specified sum would have earned for the years 1983, 1984 and 1985 if invested in certificates of deposit or United States treasury notes. Our supreme court has consistently, but certainly not unanimously, adhered to the general rule that pre-ver-dict interest is recoverable only on damages that are either liquidated or liquidable. Johnson v. Pearson Agri-Systems, 119 Wis. 2d 766, 783-87, 350 N.W.2d 127, 136-37 (1984) (Callow, J., Abrahamson, J. and Heffer-nan, C.J., dissenting). Justice Bablitch concurring with the majority stated:

The economics of the issues presented in this case have not been adequately explored by the parties, and may well be more appropriately addressed by the legislature. However, should the legislature fail to address the problems and issues raised in the dissent, I believe this court may have to address these issues again in an appropriate case.1

*904Id. at 783, 350 N.W.2d at 136. This court is bound by prior decisions of the supreme court. State v. Quiroz, 149 Wis. 2d 691, 695, 439 N.W.2d 621, 623 (Ct. App. 1989).

Lyle cites a decision of this court, Glamann v. St. Paul Fire & Marine Ins. Co., 140 Wis. 2d 640, 412 N.W.2d 522 (Ct. App. 1987), overruled on other grounds, 144 Wis. 2d 865, 424 N.W.2d 924 (1988), for the proposition that in a legal malpractice action the general rule does not apply because the action is against a third party whose negligence delayed recovery of damages from the original tort-feasor. Glamann, however, grounded the award of pre-verdict interest on the unique legislative purposes of the Wisconsin Fair Employment Act (WFEA). Id. at 657-58, 412 N.W.2d at 529. Glamann relied upon Anderson v. LIRC, 111 Wis. 2d 245, 258-59, 330 N.W.2d 594, 601 (1983), wherein it was held that an award of pre-verdict interest in WFEA cases is consistent both with the federal law after which the Wisconsin Act is patterned and with the general rule that lost wages under the Act is a liquidable claim.

The tort damages in this case were neither liquidated nor liquidable damages, and I defer to the supreme court as to whether this case presents a proper vehicle to change the present rule against pre-verdict interest. 2 I would observe as a matter of discussion that Wisconsin has long recognized an exception to the American rule barring the award of reasonable attorney fees where wrongful acts of a defendant place a plaintiff in such a relation with a third party as to make it necessary to incur expenses to protect the plaintiffs interests. Weinhagen v. Hayes, 179 Wis. 62, 65, 190 N.W. 1002, *9051003 (1922). Arguably, the rationale underlying the Weinhagen rule is applicable to the award of pre-verdict interest here. The negligent attorney has placed the plaintiff in the position of having to relitigate the original claim in order to protect his interests. Because the rule against pre-verdict interest is well established, however, any modification to the rule must come from the supreme court.

Because I would reverse the loss of use award, it is not necessary to address Lyle's cross-appeal challenging the deduction of an attorney fee from that award.3 Finally, Perina's challenges to the jury instructions were not raised in the trial court and cannot be raised on appeal. See Air Wisconsin v. North Central Airlines, 98 Wis. 2d 301, 311, 296 N.W.2d 749, 753 (1980).

In conclusion, I would affirm the judgment awarding damages for the lost larger settlement. I would reverse that portion of the judgment allowing an award for loss of use of the larger settlement.

The court in Johnson uses the term "pre-verdict" interest rather than the term "pre-judgment" interest because sec. 814.04 (4), Stats., provides for interest from the time of the verdict until judgment is entered and thus is "pre-judgment" interest. Id. at 768 n.1, 350 N.W.2d at 129 n.1.

This court has stated on at least one prior occasion, in dictum, that pre-verdict interest was not appropriate in a legal malpractice action in Burns v. Geres, 140 Wis. 2d 197, 202-04, 409 N.W.2d 428, 431-32 (Ct. App. 1987).

I note that neither party questions the deduction of the attorney fee from the loss of use award rather than from the award for the lost settlement. It would appear that if a fee is to be deducted from the client's damage award, it would come from the amount the case should have settled for and not from the amount awarded for loss of use of that award. In any case, the parties have not raised this issue and it is not preserved for appeal.