author: DEININGER, PJ. DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Antoine T. Hunter, Defendant-Appellant.
    Court of Appeals

      No. 03-2348-CR.

      Submitted on briefs March 18, 2004.

      Decided December 30, 2004.

    2005 WI App 5 (Also reported in 692 N.W.2d 256.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of James R. Lucius, Greenfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Alan Lee, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Dykman and Lundsten, JJ.
   DEININGER, PJ.

¶ 1. Antoine Hunter appeals a judgment of conviction for possession of cocaine with intent to deliver. He also appeals an order that denied his postconviction motion to withdraw his no contest plea. Hunter claims that the trial court made comments following a suppression hearing that constituted judicial involvement in plea negotiations, thereby rendering his subsequent no contest plea involuntary per se under our holding in State v. Williams, 2003 WI App 116, 265 Wis. 2d 229, 666 N.W.2d 58. Because the comments at issue did not amount to "judicial participation in plea negotiations" within the meaning of Williams, id., ¶ 2, and because Hunter does not argue on appeal that the comments actually coerced him into tendering a plea, we conclude that Hunter is not entitled to withdraw his no contest plea. Consequently, we affirm the appealed judgment and order.

BACKGROUND

¶ 2. The State charged Hunter with one count of possession with intent to deliver a quantity of cocaine. Hunter appeared before the trial court on October 25, 2000, for a hearing on his motion to suppress evidence. The trial court denied Hunter's motion and, noting that ”[t]his was identified as a dispositive motion," asked the parties if the case should be set "for projected guilty plea." Hunter's attorney informed the court that the case should instead be scheduled for a final pretrial and trial. The trial court responded as follows:

THE COURT: It is unlikely in this case that you're going to be acquitted given the amount of drugs that were seized and where they were seized from and the statements that you have given. You may hold out hope for that, but I want to just be clear and plain with you. This is a case where you are likely to be convicted. If you want to exercise the opportunity to get some credit and in other words to catch a break, then there is a time for coming forward and admitting your guilt.
If you would rather fight this and have a jury find you guilty you will be convicted and you will be sentenced, but you won't get the credit that you would otherwise get by coming forward. Now, I don't say these things to tell you that you don't have a right to a trial. You have a right to sit there as you have today. I will tell you this. You would best be well-behaved during trial because I'm not going to subject a jury to what you have subjected me to today.
[HUNTER]: May I say something?
THE COURT: No you may not. I want you to consider carefully what your odds are at trial and consider carefully whether it's in your best interest to try this case given the weighty evidence against you. Let's go off the record and set a date for final pretrial and trial.

¶ 3. After several more court appearances that we describe later in this opinion, Hunter tendered a no contest plea on May 2, 2001, to the single charge against him. The trial court accepted the plea and subsequently sentenced him to sixty-six months of imprisonment, with a thirty-month term of initial confinement and thirty-six months of extended supervision, which was consistent with the State's recommendation as set forth in the parties' plea agreement.

¶ 4. Hunter moved postconviction to withdraw his plea, contending that the trial court had improperly influenced him to plead no contest. In an affidavit supporting his motion, Hunter averred that the court’s comments at the October 25, 2000, motion hearing had caused him to plead no contest in May of2001. The trial court denied the motion without a hearing, concluding that Williams did not apply and that Hunter had failed to make a sufficient showing that his plea had been coerced. Hunter appeals the judgment of conviction and the denial of his postconviction plea withdrawal motion.

ANALYSIS

¶ 5. A defendant who seeks to withdraw a plea after sentencing has the burden of showing by "clear and convincing evidence" that a "manifest injustice" would result if the withdrawal were not permitted. State v. Truman, 187 Wis. 2d 622, 625, 523 N.W.2d 177 (Ct. App. 1994) (citation omitted). To meet this standard, a defendant must show "serious questions affecting the fundamental integrity of the plea." Libke v. State, 60 Wis. 2d 121, 128, 208 N.W.2d 331 (1973). A plea of guilty or no contest that is not shown by the record to have been voluntarily entered does not comply with constitutional requirements for a valid plea. See State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986) (citing Boykin v. Alabama, 395 U.S. 238 (1969)).

¶ 6. Although it is often said that whether to grant a post-sentence plea withdrawal motion is committed to the sound discretion of the trial court, when a defendant establishes a constitutional violation, the withdrawal of his or her plea becomes a matter of right and the trial court has "no discretion in the matter" to deny the motion. Bangert, 131 Wis. 2d at 283. Whether a plea was voluntarily entered is a question of constitutional fact. Id. We affirm the trial court's findings of evidentiary or historical facts unless they are clearly erroneous, but we independently determine whether the established facts constitute a constitutional violation that entitles a defendant to withdraw his or her plea. Id. at 283-84; State v. Sturgeon, 231 Wis. 2d 487, 496, 605 N.W.2d 589 (Ct. App. 1999).

¶ 7. We have recently recognized a "bright-line" rule that bars "any form of judicial participation in plea negotiations before a plea agreement has been reached." Williams, 265 Wis. 2d 229, ¶ 1. A plea entered following a judge's participation in plea negotiations is "conclusively presumed" to be entered involuntarily. Id., ¶ 16. Hunter, relying on the Williams bright-line rule, argues that the trial court's comments at the October 25, 2000 motion hearing constituted judicial participation in the plea negotiation process. He claims that, because the trial court participated in plea negotiations, he is entitled to automatic plea withdrawal regardless of whether his plea was actually coerced. We disagree and conclude instead, as did the trial court, that the record does not support Hunter's claim that the trial court "participated in plea negotiations" within the meaning of Williams. Accordingly, there is no "conclusive presumption" that Hunter's plea was involuntarily entered.

¶ 8. Hunter would have us interpret our statement in Williams that "any form of judicial participation in plea negotiations," id., ¶ 1 (emphasis added), mandates the automatic withdrawal upon request of a plea tendered after a judge has made comments like those quoted above. We decline to expand the Williams rule to encompass all comments a judge might make regarding the strength of the State's case or the advisability of a defendant giving consideration to a disposition short of trial. To do so would undermine the effectiveness of the rule because the line whose crossing triggers a conclusive presumption that a plea was involuntary would be far less bright. Trial court judges would not know when the line had been crossed or how to avoid crossing it short of avoiding any discussion with a defendant whatsoever regarding the likely future course of the criminal proceedings.

¶ 9. In order to discharge a trial court's case-management responsibilities and prevent the needless clogging of trial calendars with cases that will almost certainly not be tried, a trial court needs to know as early as reasonably possible whether a case appears headed for trial or a plea. The court must therefore be free to inquire of the parties whether they have discussed a resolution or intend to do so, without fear that their comments or inquiries will later be deemed to have constituted "judicial participation in plea negotiations." We share the dissent's concern regarding the inappropriateness of the trial court's comments in this case. (See ¶ 13.) We conclude, however, that the Williams rule does not require automatic plea withdrawal whenever a court expresses its view of the strength of the State's case or advises a defendant to consider the advisability of pursuing a disposition short of trial. Instead, when a court's comments to a defendant are arguably coercive of a plea, it remains the defendant's burden to show that the plea that followed was involuntary.

¶ 10. We turn to the facts in Williams to determine what conduct on the part of a trial judge is prohibited as constituting "participation in plea negotiations." On the morning scheduled for trial, the trial judge in Williams invited the defendant, his attorney and the district attorney into chambers to discuss the case. Id., ¶ 3. Following this conference, the parties returned to the courtroom, where the trial court stated on the record that an agreement had been reached in chambers with the "assistance or urging" of the court. Id. During the ensuing plea colloquy the trial court made a record of the discussion in chambers, which revealed that the court had discussed possible dispositions and sentence ranges. See id., ¶¶ 4-5. Specifically, the trial court in Williams told the defendant in chambers that he faced "eight to ten as possibly years in prison" if he went to trial and lost, and "there was a discussion of a range from one to three as a possibility" if there was a plea. Id., ¶ 5.

¶ 11. By contrast, there is no suggestion in the present record that the trial court was a party or even privy to any plea'negotiations between the State and Hunter until the parties announced to the court on April 30, 2001, that they had reached a plea agreement. Hunter points to only the trial court's on-record evaluation of the State's evidence following the suppression hearing on October 25, 2000, and its suggestion to Hunter to "consider carefully" his chances of success at trial given the strength of that evidence, as proof of the court's "participation" in plea negotiations. Unlike in Williams, the trial court in this case did not convene an impromptu settlement conference, and it did not make or solicit specific offers of potential sentence ranges. There is nothing in the present record to suggest that the trial court gave the parties any input whatsoever regarding what it considered an appropriate disposition of the charge Hunter was facing. In short, at no time on October 25, 2000, or thereafter, did the trial court suggest or advocate for a particular plea agreement.

¶ 12. Our holding in Williams expressly applies only to direct judicial participation "in the plea bargaining process itself," id., ¶ 16, and there is no suggestion in our analysis that the conclusive presumption of involuntariness should extend to any and all comments from the bench that might later be characterized as having prompted a defendant to enter into a plea agreement with the State. We conclude that commenting on the strength of the State's case and urging a defendant to carefully consider his chances of prevailing at trial are many steps removed from the direct judicial participation in plea negotiations that occurred in Williams. We thus decline to blur the Williams bright-line rule by extending it to apply to the present facts.

¶ 13. Although we conclude that the trial court in this case did not "participate in plea negotiations," trial courts should be cautious in their comments regarding whether they believe a given case should be tried or resolved by a plea. Although a certain amount of judicial persuasion is sometimes welcomed by parties to a civil action when it assists them in achieving a satisfactory resolution of their dispute short of trial, the constitutional requirement that a defendant's plea of guilty or no contest be voluntary dictates that there is no similar role for the court to play in a criminal case. We noted in Williams that a criminal court judge's role is to serve as a " 'neutral arbiter of the criminal prosecution.' " Id., ¶ 16 (citing United States v. Bruce, 976 F.2d 552, 557 (9th Cir. 1992)). Comments on the strength of a party's case, or suggestions that a defendant should strongly consider entering a plea, are inconsistent with that role, and, as in this case, may lead to postconviction claims of judicial coercion of a plea.

¶ 14. The trial court concluded that, not only did its October 25, 2000, comments not constitute judicial participation in plea bargaining, but they also did not actually coerce Hunter into pleading no contest. We agree. Much happened between the time of those comments and the time Hunter entered his plea. Thus, it is not surprising that Hunter relies solely on the Williams bright-line rule in this appeal. That is, on appeal, Hunter does not claim the trial court erred in determining that he, in fact, voluntarily entered his no contest plea on May 2, 2001. Although Hunter does not make the claim on appeal, because we are concerned about the nature of the trial court's comments on October 25, we explain why we are confident that when Hunter entered his plea six months later, he did so voluntarily. Had Hunter pled no contest on October 25, 2000, immediately after the comments at issue, we might well conclude that Hunter's decision to forgo a trial was not entirely one of his own making. But that is not what happened.

¶ 15. At a status conference on November 9, 2000, Hunter's previous attorney had withdrawn and a new attorney assumed his representation. During a January 3, 2001, court appearance that had been scheduled "for a projected guilty plea," Hunter's new counsel requested additional time to review whether the suppression motion should be renewed or a recusal request filed. The court set deadlines for these things to occur and advised counsel that "[i]f in the course of studying these matters you determine there is a need for a trial in this case, then we will use the next hearing date to schedule a trial." The trial court subsequently, at defense counsel's request, ordered that Hunter undergo a competency evaluation.

¶ 16. The court received the competency evaluation on March 29, 2001, and determined that Hunter was competent to proceed. His second counsel then asked to withdraw, citing extensive communication problems between her and Hunter. Knowing that the State Public Defender would not appoint a third attorney for Hunter, the court explored whether Hunter wished to and would be able to represent himself at a trial. The court then inquired of counsel whether she would be willing to call at trial the witnesses identified by Hunter, noting that if "Mr. Hunter wants a trial, then we got to have a trial, regardless of the consequences to him if he's found guilty." The court ultimately concluded that the difficulties between Hunter and his counsel were not insurmountable and denied the request to withdraw. The proceeding concluded with the following exchange:

THE COURT: Anything else, Mr. Hunter?
[HUNTER]: I wasn't staying at that house.
THE COURT: Mr. Hunter, that's a fact that a jury needs to decide. I can't decide that issue, Mr. Hunter. Mr. Hunter, look at me. Mr. Hunter, that's why we have juries. They decide those factual disputes. No matter how compelling I think your story might be, even if I believed you, I couldn't dismiss this case. The state has the right to take it in front of a jury and prove its case. So it's going to be up to a juiy to decide whether they believe these people or not.
One of the things that I'm sure you and [defense counsel] have been discussing, I don't know what you've said, but one of the things I'm sure you've been discussing is how believable is the story that you want the jury to believe. And if it's believable, they'll believe it. And if it's not, they won't. So—
[HUNTER]: I know everybody wants me to just take a plea so this will get resolved.
THE COURT: I just said I'm happy to give you a trial.
[DEFENSE COUNSEL]: You'll get a trial.
THE COURT: Sounds like that's where we're headed. Accordingly, in this case . .. we'll set a date for trial.

¶ 17. At a "final pretrial" on April 30, 2001, Hunter's counsel informed the court that a plea agreement had been reached with the State. The trial court accordingly vacated the scheduled trial date and set the matter for a "projected guilty plea" on May 2, 2001. On that date, Hunter tendered a plea of no contest to the single charge against him. The trial court engaged Hunter in an extensive colloquy, inquiring whether he understood, among other things: that he was giving up his "right to have a jury decide whether you committed this crime"; "that all members of the jury would have to agree before you could be found guilty"; "that you give up your right to force the state to come to court with evidence of your crime and prove it beyond a reasonable doubt"; and that he was forgoing all opportunities to cross-examine "those who have accused you" and "to testify ... at trial and tell your side of the story if you wish." On each occasion, Hunter replied that he understood. Finally, the court inquired as follows:

THE COURT: Are you making your decision to plead no contest voluntarily?
[HUNTER]: Yes.
THE COURT: Took a deep breath before you said that.
[HUNTER]: Yes.
THE COURT: You're certain this is what you want to do today. Correct?
[HUNTER]: Yes.

¶ 18. Thus, over six months elapsed between the court's October 25th comments and Hunter's plea, during which time the record indicates Hunter considered his options and discussed them with his attorney. During this time, as well, the question whether Hunter was going to plead or go to trial came up during several court appearances, and when it did, the trial court explained to Hunter that the decision was his and that he had the right to go to trial. It is also clear from the record that Williams did not decide to forgo a trial and plead no contest until some time in late April 2001, at a point when his case had been scheduled for trial. These events and the passage of time between the court's comments on October 25, 2000, and the plea agreement persuade us that the court's comments did not coerce Hunter's plea on May 2, 2001.

¶ 19. We are particularly persuaded by the exchange that took place between the court and Hunter on March 29, 2001. The court explained to Hunter on that date in no uncertain terms that his fate would be decided by jurors who would either believe his version of events or the State's, and that the court's impressions regarding the State's evidence were irrelevant to the outcome at trial. The court's and defense counsel's assurance thereafter that Hunter would have his trial, and the court's comment that the case was headed to trial and its scheduling thereof, satisfy us that Hunter knew he had the option to go to trial, and that the choice whether to do so was his. Finally, we observe that the trial court engaged Hunter in a thorough plea colloquy before accepting his plea. In particular, we are impressed by the court's restatement of its question regarding the voluntariness of Hunter's plea after the court sensed hesitation on Hunter's part.

CONCLUSION

¶ 20. For the reasons discussed above, we affirm the appealed judgment of conviction and the postcon-viction order denying Hunter's request to withdraw his plea.

By the Court. — Judgment and order affirmed.

DYKMAN, J.

¶ 21. (dissenting). In State v. Williams, 2003 WI App 116, ¶ 1, 265 Wis. 2d 229, 666 N.W.2d 58, we adopted a rule regarding judicial involvement in plea bargaining which we believed would definitively settle this issue once and for all. We said:

We conclude that judicial participation in the bargaining process that precedes a defendant's plea raises a conclusive presumption that the plea was involuntary. Therefore, we adopt a bright-line rule barring any form of judicial participation in plea negotiations before a plea agreement has been reached.

Not two years later, the majority has changed this "bright-line rule" to a gray area rule which applies only if the exact facts in Williams are repeated.

¶ 22. The purpose of our bright-line rule in Williams was to make after-the-fact inquiries and prejudice determinations unnecessary. We did not write Williams for only the facts of that case. Our whole opinion was an attempt to lay out a rule for future cases that would be easy to understand and follow. We quoted State v. Wolfe, 46 Wis. 2d 478, 488, 175 N.W.2d 216 (1970), for the reasons why judicial involvement in plea bargaining was inadvisable:

(1) [T]he defendant can receive the impression from the trial judge's participation in the plea discussions that he would not receive a fair trial if he went to trial before the same judge; (2) if the judge takes part in the preplea discussions he may destroy his objectivity when it comes to determining the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report and (4) the defendant may feel that the risk of not going along with the disposition which is apparently desired by the judge is so great that he will be induced to plead guilty even if innocent.

Id.

¶ 23. The majority focuses only on the voluntariness rationale for avoiding judicial involvement in plea bargaining. Wolfe shows that there is more to it than that. The Williams bright-line rule was our attempt to make judicial inquiry and analysis by the trial court unnecessary. We recognized the problems inherent in a trial court examining what it said at a previous hearing to see whether its statements did, in fact, coerce a defendant into a plea. The problem, of course, is that Wisconsin trial judges strive to do the right thing, and usually do. But asking a trial judge whether his or her comments coerced a defendant into a guilty plea is unrealistic. Trial judges do not attempt to coerce guilty pleas knowing that they are participating in the forbidden plea negotiation process. The problem arises when trying to determine where in a broad gray area the line is located.

¶ 24. The issue of voluntariness permeated the hearings in this case. On October 25, 2000, Hunter's attorney told the court that he was unsure whether Hunter was willing to plead guilty. The trial court made it clear to Hunter that if he refused to plead guilty and demanded a trial, he would be convicted and sentenced more harshly than he would have been had he pled guilty. After hearing this, Hunter asked: "May I say something?" The court replied: "No, you may not."

¶ 25. There is no question that the trial court's comments affected Hunter. At a January 3, 2001 hearing, his attorney told the court:

[M]y client has raised some concerns in regards to a motion hearing that was held before this court back on October 25th of last year .... [H]e is also at this time wanting me to ask the court to recuse itself in regards to further handling of his case. He stated to me that comments that were made by the court during the motion hearing, and again, I'm not here to talk about the truthfulness of what he's telling me, but he does not feel comfortable proceeding in front of this court, whether it be with a trial or a guilty plea.

¶ 26. After the trial court explained to Hunter that it would not dismiss his case even though Hunter maintained that he was not present at the scene of the crime, Hunter said: "I know everybody wants me to just take a plea so this will get resolved." The court replied: "I just said that I'm happy to give you a trial." When, on April 30, 2001, Hunter changed his plea to no contest, the court asked: "Are you making your decision to plead no contest voluntarily?" Hunter replied, "Yes." The court noted: "Took a deep breath before you said that." Hunter said: "Yes."

¶ 27. The majority's conclusion that the passage of time rendered Hunter's plea voluntary is curious. Despite the passage of six months, Hunter was still reluctant to plead no contest. His attorney explained that the reason for this was Hunter's concern with the trial judge's comments at the October 25 hearing. The majority explains this as time Hunter used to decide that a plea was the best course of action. Given the record, that makes no sense to me. I view the situation as Hunter finally deciding to enter a plea because he realized that if he did not, the judge had told him he would be punished more severely. Coercion does not evaporate just because time has passed. The record here shows that the judge's comments stayed with Hunter from the time they were made until the time he pled no contest.

¶ 28. Coercion is not the only reason why judicial participation in plea bargaining is inadvisable. In a criminal case, "a defendant is entitled to not only a fair trial, but the appearance of a fair trial. . . ." Flowers v. State, 43 Wis. 2d 352, 362, 168 N.W.2d 843 (1969). After telling Hunter that if he did not plead guilty, his sentence would be more lengthy, the judge explained: "It is unlikely in this case that you're going to be acquitted .. . ." While lawyers and judges would view this as a realistic assessment of a case, a defendant is in a different position. To a defendant, a judge, the person most responsible for his or her fate, has just explained that even before the case is heard, the verdict will be guilty.

¶ 29. The majority does not discuss institutional problems arising after a judge tells a defendant that his or her jury is going to return a verdict of guilty. Perhaps a convicted defendant's belief as to how the judge arranged for that (erroneous as that belief is) is of little import. But we should strive for a criminal justice system that is viewed as fair and impartial by as many as possible. A judge's expressed pre-trial predictions of a guilty verdict are not helpful to that view.

¶ 30. What the majority has really done is to overrule Williams in all hut the case that reoccurs but once in ten years. The bright-line rule has been replaced by a gray-area rule that encourages coercion and will only lead to more appeals. The majority fears an avalanche of cases in which a judge's question whether the parties have discussed settlement results in plea withdrawal. Those fears are unfounded. A question, unless deliberately worded to be a comment, is merely that. Trial courts must be able to control their calendars. That is often done by judicial staff asking attorneys whether a case is going to trial. This, without more, cannot be coercive. Even a judge's on-the-record questions about scheduling are not coercive if all the court needs to know is whether the case is going to trial, the anticipated length of trial and whether the case will be terminated by a plea. I have every confidence that had Williams remained the rule, Wisconsin's judges would easily be able to avoid the problems the majority posits.

¶ 31. I joined Williams because I concluded that a bright-line rule would soon become as easily understood as anything can be in the practice of criminal law. For me, it is still the best way to handle a subset of the issue of allegedly involuntary guilty pleas. The majority believes otherwise, and I therefore cannot join its opinion. I would reverse, with instructions to grant Hunter's motion to withdraw his plea. Accordingly, I respectfully dissent.

       Hunter's postconviction motion recites that he sought relief "pursuant to [Wis. Stat. §] 974.06(1)." This would be consistent with one of the arguments Hunter makes on appeal, which is that a previous postconviction counsel had rendered ineffective assistance, resulting in "the loss of [his] right to a direct appeal of his conviction." We note, however, that the present appeal has been treated as a direct appeal under Wis. Stat. § 974.02 (2001-02) and Wis. Stat. Rule 809.30. We previously extended the deadline for and accepted Hunter's otherwise untimely Notice of Intent to Pursue Postconviction Relief. The State Public Defender appointed Hunter's present counsel, who represented Hunter in filing both his plea withdrawal motion and this appeal. Notwithstanding the fact that Hunter's postconviction motion to withdraw his plea was filed well after the Rule 809.30 deadline for doing so, he has suffered no prejudice on that account. Hunter is represented in the appeal by appointed counsel and he has obtained in both the trial court and this court full consideration of the issue he wishes to raise. We hereby ratify any heretofore implicit extensions of deadlines under Rule 809.30 for filing and deciding a motion for postcon-viction relief and for commencing this appeal. See Wis. Stat. Rule 809.82(2)(a) (providing that this court may, "upon its own motion," except in certain circumstances not present here, "enlarge ... the time prescribed by these rules ... for doing any act, or waive or permit an act to be done after the expiration of the prescribed time."). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    Clairene D. Hunt, a minor, by her Guardian ad Litem, James J. Gende II and Maxcine Hunt, Plaintiffs-Appellants, Aetna U.S. Healthcare and GEICO Insurance Co., Involuntary-Plaintiffs, v. Clarendon National Insurance Service, Inc., a foreign insurance corporation, Johnson School Bus Service, Inc., a Wisconsin corporation, and Joseph Brackmann, Defendants-Respondents.

    Court of Appeals

      No. 03-3522.

      Oral argument November 9, 2004.

    Decided December 14, 2004.

    2005 WI App 11
    (Also reported in 691 N.W.2d 904.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Edward E. Robinson and Charles David Schmidt of Cannon & Dunphy, S.C. of Brookfield. There was oral argument by Charles David Schmidt.

    On behalf of the defendants-respondents, the cause was submitted on the brief of Timothy J. Strattner and Laurie E. Meyer of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee. There was oral argument by Timothy J. Strattner.

    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review dismissed.

   KESSLER, J.

¶ 1. Clairene and Maxcine Hunt (collectively, "the Hunts") appeal from a judgment entered on a jury verdict finding that Joseph Brackmann, Johnson School Bus Service, Inc. (Johnson) and Johnson's insurer, Clarendon National Insurance Service, Inc., (collectively, "defendants"), were not liable for injuries Clairene suffered when she was hit by a car shortly after exiting her school bus. The Hunts argue that they are entitled to a new trial because the trial court: (1) erroneously refused to instruct the jury using the "common carrier" jury instruction that addresses duty of care; (2) erroneously exercised its discretion by barring evidence that Johnson's "drop and go" urban stop discharge procedure was negligently deficient and inherently unsafe; and (3) erroneously exercised its discretion by including the driver of the vehicle, which struck Clairene, on the special verdict. The Hunts also seek a new trial in the interest of justice. Finally, they argue that the trial court erroneously concluded that Clairene is not entitled to uninsured motorist benefits under the insurance policy covering the bus.

¶ 2. We conclude that Johnson is a common carrier and, therefore, the common carrier jury instruction should have been given. We conclude that the Hunts should have been allowed to present evidence to dispute the "drop and go" urban stop discharge procedure employed by the defendants. We further conclude that these were prejudicial errors entitling the Hunts to a new trial.

¶ 3. We do not decide whether the driver of the oncoming vehicle should be included in the special verdict on retrial because there may be evidence adduced, which was not available in this trial, from which a reasonable jury could conclude that she was negligent. However, we note that there was no evidence in this record of the speed, lookout or management and control of the driver of the car that struck Clairene.

¶ 4. Finally, we conclude that in the event the oncoming driver is again found to be negligent, Clairene is entitled to uninsured motorist benefits under the insurance policy covering the school bus because she was still vehicle-oriented in relation to the school bus at the time she was struck.

BACKGROUND

¶ 5. The background facts are undisputed. Clairene, who was ten years old at the time, suffered personal injuries when she was hit by a car while crossing the street after being discharged from her school bus in the City of Milwaukee. The bus dropped her off at the corner of an uncontrolled intersection and proceeded to enter the intersection to turn left. Clairene began to cross the street by walking behind the bus while it was waiting to turn. She was struck within ten feet of the rear of the bus by an oncoming car driven by Shalonda Briggs, who is not a party to this action.

¶ 6. The Hunts sued the driver of the bus, Joseph Brackmann, alleging negligence. They also sued Johnson, alleging that Johnson was vicariously liable for Brackmann's negligence and that Johnson was negligent in its training, instruction and supervision of bus drivers. The Hunts subsequently amended their complaint and added a claim for uninsured motorist coverage under Johnson's insurance policy from Clarendon on grounds that Clairene was "occupying" a "covered auto" at the time of the injury.

¶ 7. The trial court granted defendants' motion for declaratory judgment holding that the insurance policy does not afford uninsured motorist coverage to Clairene for her injuries. The trial court denied defendants' motion for summary judgment on the negligence claims. The negligence claims were tried to a jury, which returned a verdict finding that only Briggs and Clairene were causally negligent with respect to Clairene's injuries. The trial court denied the Hunts' motion for a new trial and entered judgment for defendants. This appeal followed.

DISCUSSION

I. Alleged trial errors

A. Common carrier instruction

¶ 8. The Hunts argue that the trial court erroneously refused to instruct the jury using Wis JI — Civil 1025, "Negligence of a Common Carrier," which would have instructed the jury that in order to discharge the duty owed to passengers, a common carrier "must exercise the highest degree of care for their safety." See id.

¶ 9. A trial court has broad discretion in deciding whether to give a particular jury instruction and the court must exercise its discretion "to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence." State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). However, we will independently review whether a jury instruction is appropriate under the specific facts of a given case. State v. Groth, 2002 WI App 299, ¶ 8, 258 Wis. 2d 889, 655 N.W.2d 163. If a jury instruction "is erroneous and probably misleads the jury, we will reverse because the misstatement constitutes prejudicial error." Young v. Professionals Ins. Co., 154 Wis. 2d 742, 746, 454 N.W.2d 24 (Ct. App. 1990). "A new trial is warranted when an erroneous instruction is prejudicial." Id.

¶ 10. Prior to trial, the trial court specifically considered whether Johnson was a "common carrier" in response to defendants' motion in limine that sought to preclude the Hunts from presenting any evidence or arguments that Johnson and Brackmann owed Clairene the "highest degree of care" required of a common carrier. The trial court granted defendants' motion and later denied the Hunts' request at the close of trial to instruct the jurors using Wis JI — Civil 1025, the instruction defining a common carrier's duty of care. The trial court's ruling was based on its conclusion of law that Johnson was not a common carrier.

¶ 11. We first consider whether Johnson is a common carrier. "A carrier is an enterprise in the business of publicly transporting persons or goods." Brockway v. Travelers Ins. Co., 107 Wis. 2d 636, 638, 321 N.W.2d 332 (Ct. App. 1982). "Two elements characterize a carrier as a common carrier: (1) The service is for hire, and (2) the carrier holds itself out to the public." Id. (footnote omitted). In Brockway, the court also recognized two additional factors that the Wisconsin Supreme Court considered in Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N.W. 748 (1923): whether the operator controlled the manner of transportation and whether the passenger places himself in the operator's care. Brockway, 107 Wis. 2d at 638 n.2 (citing Anderson, 179 Wis. at 304-06). Here, Johnson School Bus Service makes itself available to public school districts, offers to transport persons identified by the district to various locations at various times (also identified by the district), and receives payment from the district for those services. Clearly, the service is for hire. The part of the public attending the particular public school is served. The passengers are in the care of the operator while traveling from place to place. Johnson School Bus Service satisfies all common law characteristics of a common carrier.

¶ 12. The parties devote much of their arguments to discussing whether school buses operated by for-profit entities are "common motor carriers" as that term is defined in Wis. Stat. § 194.01(1) (2001-02). We do not believe the statutory definition is necessary to the outcome of this case, although it may be read to support our conclusion that Johnson is a common carrier. Chapter 194, titled "Motor Vehicle Transportation," deals generally with licensure, the physical condition of motor vehicles to be operated on Wisconsin highways and with the regulatory powers of the Wisconsin Department of Transportation. It makes no mention of tort liability or standards of care required of drivers.

¶ 13. The common law classification, rather than the definition in a regulatory scheme, controls the applicable standard of care in a negligence case. For instance, although taxicabs are specifically excluded from the definition of "common motor carrier" found in Wis. Stat. § 194.01(1), in a negligence context "[t]he common-law duty as to common carriers applies equally to taxicabs." Comment, Wis JI — Civil 1025. The comment further explains, "Wis. Stat. § 194.01(5) is a regulatory statute and, hence... is inapplicable to a taxicab company's negligence." Id.

¶ 14. We conclude that Johnson is a common carrier and that the jury should have been instructed accordingly. We are guided by Lempke v. Cummings, 253 Wis. 570, 34 N.W.2d 673 (1948), which discussed a private school bus company that provided transportation of school children in the context of its role as a common carrier. Id. at 571-74. In that context, the court held that "[t]he duty of a common carrier of passengers includes an obligation to furnish them a safe place in which to alight... and that duty is only satisfied if it exercises the highest degree of care and skill which reasonably may be expected of intelligent and prudent persons engaged in such a business ...." Id. at 573 (internal quotations and citation omitted). This expression of the degree of care that must be exercised is consistent with that identified in Wis JI— Civil 1025 and with numerous cases decided since Lempke.

¶ 15. Because Johnson is a common carrier as that term is used in negligence law, the trial court should have instructed the jury consistent with Wis JI — Civil 1025, which provides:

In this case, (defendant) is a common carrier. A common carrier is not required to guarantee the safety of its passengers. However, in order to discharge the duty that it owes to its passengers, a common carrier must exercise the highest degree of care for their safety. The care required is the highest that can be reasonably exercised by persons of vigilance and foresight when acting under the same or similar circumstances, taking into consideration the type of transportation used and the practical operation of its business as a common carrier.

Instead, the trial court gave the jury Wis JI — CrviL 1005, the general negligence instruction. It provides:

A person is negligent when (he) (she) fails to exercise ordinary care. Ordinary care is the care which a rea- • sonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

¶ 16. We conclude that the absence of the common carrier instruction, and the use of the general negligence instruction to analyze the actions of Johnson and Brackmann, misstated the applicable law and hence were erroneous. Because these errors probably misled the jury, we conclude that these errors were prejudicial and, therefore, reverse and remand for a new trial. See Young, 154 Wis. 2d at 746.

¶ 17. The jury was probably misled because it was instructed that Johnson and Brackmann were required to exercise precisely the same standard of care as Clairene and Briggs. That is not correct. As common carriers, "ordinary care" for Johnson and Brackmann is "a very high degree" of care. See Ruka v. Zierer, 195 Wis. 285, 292, 218 N.W. 358 (1928). In Ruka, the court explained, "Common carriers must exercise ordinary care for the safety of their passengers. But to constitute ordinary care, the care exercised must be of a very high degree." Id. The difference in degrees of ordinary care for ordinary persons and for common carriers is significant. It recognizes the greater responsibility assumed, and hence the greater obligation owed, by those who transport the public to those who trust them to do so safely and with a high degree of ordinary care. Therefore, we conclude that not giving the common carrier instruction misled the jury because it misstated the applicable law. This error requires reversal.

B. Evidence concerning Johnson's "drop-and-go" procedure

¶ 18. The Hunts argue that the trial court erroneously excluded evidence of the discharge procedures Johnson used in rural areas, which the Hunts hoped to use to show that Johnson's "drop-and-go" urban discharge procedures were deficient and inherently unsafe. They further argue that the trial court compounded the error by erroneously allowing defendants to introduce evidence suggesting that Wisconsin law actually requires the "drop-and-go" practice in urban areas when no such requirement exists.

¶ 19. The admissibility of evidence is a matter within the trial court's discretion. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). Consequently, a trial court's evidentiary ruling will not be upset on appeal if the court had "a reasonable basis" and it was made "in accordance with accepted legal standards and in accordance with the facts of record." Id. (citations omitted).

¶ 20. We note our concern with the exclusion of evidence concerning defendants' discharge procedures used in rural areas, and the types of areas classified as rural in Johnson's written policy on stop procedures. Because the record here is incomplete in that the hearing on defendants' motion in limine is not part of the record, we are unable to tell whether the limitation applied only to Johnson's rural discharge policies or whether it applied to any other discharge policies or practices. The Hunts sought to introduce evidence concerning safety procedures employed in rural areas in order to show that Johnson's Milwaukee stop procedures were inherently dangerous. The Hunts intended to show that Johnson employed reasonable and safer discharge alternatives in other parts of the metropolitan area classified by Johnson as "rural." Johnson, they assert, could have employed safer discharge methods here. For instance, the Hunts suggest drivers could remain at the point of discharge and assist the children crossing in front of the bus by signaling to them when it is safe to cross, or by having drivers honk the horn to warn discharged children of approaching traffic.

¶ 21. Defendants argue that evidence of rural stop procedures is irrelevant because under state law, school buses in urban areas are not allowed to use flashing red lights or extend attached "stop" signs. However, just because red flashing lights and sign extensions are not allowed within the City of Milwaukee, it does not follow that school bus drivers within the city cannot assist students in crossing the street in urban areas. By way of example, one easy way to assist would be to require the children to cross in front of the bus. We conclude that the Hunts were entitled to introduce evidence of other safety procedures that could have been employed because the failure to do so probably mislead the jury to the prejudice of the Hunts.

¶ 22. At oral argument, defendants candidly admitted that no law requires only the "drop-and-go" policy they employ. However, they emphasized their compliance with certain requirements of Wxs. Stat. ch. 194 and their adoption of certain school bus safety recommendations published by the Wisconsin Department of Public Instruction. Apparently, defendants viewed following these provisions as creating a sort of safe harbor, which would insulate them from liability in civil litigation if they followed these provisions. We disagree. Defendants are common carriers, obligated as a matter of ordinary care to exercise "a very high degree" of care for the safety of their passengers. See Ruka, 195 Wis. at 292.

II. Uninsurecl motorist coverage

¶ 23. The Hunts challenge the trial court's declaratory judgment that Clairene should not be allowed to collect under the uninsured motorist ("UM") insurance policy that Clarendon issued to Johnson. Although we do not yet know if Briggs will be found partially liable for Clairene's injuries, we are able to review the trial court's declaratory judgment with respect to the potential applicability of the policy.

¶ 24. The interpretation of an insurance contract is a question of law that this court reviews de novo. Lambert v. Wrensch, 135 Wis. 2d 105, 115, 399 N.W.2d 369 (1987). The parties agree that the specific issue is whether Clairene was "occupying" the bus at the time she was injured. The parties also agreed at oral argument that Clairene was within a ten-foot perimeter of the bus at the time she was struck, and that the ten-foot zone is acknowledged in the industry as a recognized zone of danger to passengers. The Clarendon policy defines "occupying" as "getting in, on, out or off."

¶ 25. Wisconsin courts do not require "that an individual have physical contact with an automobile before that person can be labeled an occupant under an automobile insurance policy." Kreuser v. Heritage Mut. Ins. Co., 158 Wis. 2d 166, 172, 461 N.W.2d 806 (Ct. App. 1990). Rather, as the court recognized in Kreuser, the test for determining whether a person is "occupying" a vehicle so as to be entitled to uninsured motorist coverage is whether the party was vehicle-oriented or highway-oriented at the time of the injury. Id. at 173. The "vehicle-oriented" test "considers the nature of the act engaged in at the time of the injury and the intent of the person injured." Id. Kreuser added one additional inquiry: whether the party was "within the reasonable geographical perimeter of the vehicle." Id.

¶ 26. Applying the vehicle-oriented test prior to Kreuser, this court in Sentry Ins. Co. v. Providence Wash. Ins. Co., 91 Wis. 2d 457, 458-459, 283 N.W.2d 455 (Ct. App. 1979), considered whether a man was "occupying" a vehicle when he exited the vehicle and crossed in front of the vehicle to reach the sidewalk. As the man was walking, a second vehicle hit the vehicle that the man had just exited, causing the first vehicle to hit the man and pin him to a third car. Id. We held that the man was occupying the vehicle, because he

had not ceased occupancy of the car, nor had he severed his connection with the car, at the time of the accident. He was "vehicle oriented" at all times, from the moment he exited the automobile until the time he was injured by the uninsured motorist. He had not completed his act of alighting from the car.

Id. at 460-61.

¶ 27. Similarly, in Kreuser, we concluded that a woman named Nancy Kreuser was "occupying" a vehicle at the time she was injured, even when she had not yet entered the vehicle. 158 Wis. 2d at 173. Kreuser was waiting on the side of the road for her co-worker to pick her up in his vehicle. Id. at 169. As the vehicle approached, a motorcycle struck the vehicle from behind and then struck Kreuser, injuring her. Id. We applied the three-part test discussed above and concluded that she was "occupying" her co-worker's vehicle. Id. at 173-74. We reasoned:

Kreuser was within ten feet of [the] vehicle and she was beginning to turn to prepare to enter the vehicle when she was struck by the motorcycle. There is no doubt that both her intent and [her co-worker's] intent was to have Kreuser occupy the automobile. Kreuser had ridden with [the co-worker] in the past and [the co-worker] regularly picked her up at this . . . intersection.
We are satisfied that an ordinary lay person would expect that people preparing to board an automobile come within the definition of occupying and would be afforded coverage if injured during the boarding process. If we were to say that the boarding person had to have actual physical contact with the insured vehicle we would unduly restrict coverage.

Id.

¶ 28. Applying the Kreuser test here, we conclude that Clairene was "occupying" the bus at the time of her injury. In all of the cases discussed above, the vehicle in question played some significant role in the ultimate injury. The accident occurred just after Clairene exited the bus and started to walk behind it (as she had been instructed to do) to cross the street. It is undisputed that although the bus was pulling into the intersection and'waiting to turn left, Clairene was still within the ten-foot danger zone at the time she was struck. Because Clairene was behind the bus, the bus blocked Clairene from the view of on-coming traffic until she was in the on-coming traffic lane. Just as the injured man in Sentry was still "occupying" his vehicle when he crossed in front of it to get to the sidewalk, Clairene was still "occupying" the bus when she walked behind the bus within the zone of danger to cross the street. See id., 91 Wis. 2d at 460-61.

¶ 29. Defendants argue that unlike the injured persons in Sentry and Kreuser, Clairene was not "occupying" the bus at the time of injury. They contend that unlike the man in Sentry, Clairene had finished "occupying" the bus because she stepped onto the sidewalk, next to the bus, before she stepped off the sidewalk in order to cross the street. In addition, the man in Sentry was within arm's reach of the vehicle, while Clairene was not. Finally, the vehicle in Sentry had not moved after the man exited, but here the bus had moved into the intersection. Similarly, defendants argue that Clairene was not "vehicle-oriented" like Kreuser, because she did not intend to re-board the bus.

¶ 30. We are not persuaded by defendants' arguments. Although the facts of Clairene's case vary somewhat from those in Sentry and Kreuser, defendants' attempt to distinguish the cases is not consistent with the policy and rationale underlying those cases. "Our objective in interpreting and construing the insurance policy is to carry out the true intentions of the parties." Kreuser, 158 Wis. 2d at 171-72. "The test used in construing an insurance policy is what a reasonable person in the position of the insured would have understood the words to mean." Id. at 172. "The interpretation of the policy should further the insured's expectations of coverage." Id. We conclude that an insured, purchasing coverage for a school bus, would expect that a child exiting a school bus and immediately walking behind the bus to cross the street would come within the definition of occupying and would be afforded coverage if injured during that process. Therefore, we reverse the declaratory judgment and hold that Clairene is entitled to coverage under the uninsured motorist provisions of Clarendon's policy.

III. Inclusion of Briggs on the jury verdict form

¶ 31. At the conclusion of the trial, the Hunts moved for a directed verdict, asking that Briggs, the driver of the oncoming car, not be included on the special verdict because there was no evidence that she was negligent. In Gierach v. Snap-On Tools Corp., 79 Wis. 2d 47, 55, 255 N.W.2d 465 (1977), the Wisconsin Supreme Court discussed the propriety of including non-parties on special verdict forms. The court stated:

Although ... a special verdict question in respect to the negligence of an individual who is not a party may be included in the verdict, it is necessary that there be "evidence of conduct which, if believed by the jury, would constitute negligence on the part of the person or other legal entity inquired about."

Id. at 55-56 (citation omitted). While we have been unable to find evidence of Briggs' conduct in the current record, we are confident that the trial court will apply the facts that are developed on retrial to the law the supreme court has established with respect to the negligence of a non-party.

By the Court. — Judgment reversed and cause remanded for further proceedings.

       Aetna U.S. Healthcare and GEICO Insurance Company are involuntary plaintiffs and did not participate in this appeal.

       There were no traffic lights or stop signs on any portion of the intersection. There was a "yield" sign on the north-south street. Clairene had to cross the east-west street in an unmarked and uncontrolled crosswalk.

       Defendants filed with this court a petition for leave to appeal the non-final order denying their motion for summary judgment. We denied that petition in Hunt v. Clarendon Natl Ins., No. 01-3496-LX order (WI App Feb. 13, 2002).

       The Honorable David Hansher decided the motion for summary judgment. The Honorable Jeffrey Kremers decided the motion for declaratory judgment and presided over the trial and post-trial proceedings.

       Wisconsin Stat. § 194.01(1) provides:
      "Common motor carrier" means any person who holds himself or herself out to the public as willing to undertake for hire to transport passengers by motor vehicle between fixed end points or over a regular route upon the public highways or property over regular or irregular routes upon the public highways. The transportation of passengers in taxicab service or in commuter car pool or van pool vehicles with a passenger-carrying capacity of less than 16 persons or in a school bus under s. 120.13 (27) shall not be construed as being that of a common motor carrier.
      School buses falling within the definition of Wis. Stat. § 120.13(27) are excluded from the definition of common motor carrier. See § 194.01(1). Section 120.13 provides in relevant part:
      120.13 School board powers.
      (27) Transportation op persons who are not pupils, (a) Subject to par. (b), the school board may use or allow the use of school buses owned and operated by the school district to transport persons who are not pupils of the school district. School buses may be used by persons who are not pupils of the school district during school hours if such use does not interfere with the transportation of pupils of the school district. The school board shall charge a fee for use of the school buses under this subsection. The fee shall be an amount equal to the actual cost of transportation under this subsection, including but not limited to costs for depreciation, maintenance, insurance, fuel and compensation of vehicle operators. If the school board denies a written request for use of the school buses, the school board shall provide the requester a written statement of the basis for the denial within 14 days after the denial.
      (b) No school bus may be used to provide transportation under this subsection unless the vehicle is insured by a policy providing property damage coverage and bodily injury liability coverage for such transportation in the amounts specified in s. 121.53 (1).

        See Comment, Wis JI — Civil 1025.

       Although it may seem incongruous to require that common carriers exercise a "very high degree" of "ordinary care," this is the terminology employed in Ruka v. Zierer, 195 Wis. 285, 292, 218 N.W. 358 (1928). Put more simply, the ordinary care that is required of common carriers requires a more heightened degree of care than the ordinary care that is required of others.

       The phrase "drop-and-go" appears to refer to the procedure of dropping the student at the curb and then continuing on, without waiting for the student to cross the street.

        See Footnote 7.


author: FINE, J. KESSLER, J.

text:
    Dale Rebernick, Sandra Rebernick, and Gregory Rebernick, by his Guardian ad Litem, Plaintiffs-Appellants v. Wausau General Insurance Company, Defendant, American Family Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 04-0487.

      Oral argument December 2, 2004.

    Decided December 14, 2004.

    2005 WI App 15
    (Also reported in 692 N.W.2d 348.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas A. Ogorchock of Miller & Ogorchock, S.C., of Milwaukee. There was oral argument by Thomas A. Ogorchock.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Emile H. Banks, Jr., of Emile Banks & Associates, LLC, of Milwaukee. There was oral argument by Emile H. Banks, Jr.

    Before Fine, Curley and Kessler, JJ.

       Petition to review granted 3-8-2005.

   FINE, J.

¶ 1. Dale Rebernick, Sandra Rebernick, and Gregory Rebernick appeal the trial court's order granting American Family Mutual Insurance Company's motion for summary judgment and dismissing the Rebernicks' action. The Rebernicks sought underinsurance-motorist coverage under their American Family umbrella policy even though the policy expressly declared that it did not cover underinsured-motorist claims. We affirm.

I.

¶ 2. Dale Rebernick was seriously injured when the lawn mower he was riding was hit by a car driven by Denelius Heard. Heard had $25,000 in liability insurance. Heard's insurer paid Rebernick the $25,000, and Rebernick collected the maximum $100,000 underinsured-motorist coverage provided by his American Family automobile policy. He then sought more money from American Family under the umbrella policy. The only mention in the umbrella policy of underinsured-motorist coverage is the following clause: "Uninsured/Underinsured Motorists. We will not cover any claims which may be made under Uninsured Motorists Coverage, Underinsured Motorists Coverage or similar coverage, unless this policy is endorsed to provide such coverage." (Bolding in original.)

¶ 3. The Rebernicks contend that the American Family umbrella policy should be reformed to provide underinsured-motorist coverage because, they assert, American Family violated Wis. Stat. § 632.32(4m) by not telling them that the umbrella policy could have provided such coverage. The trial court held that reformation was not warranted, noting that the Rebernicks had purchased underinsured-motorist coverage in their underlying American Family automobile policy, and that therefore "they obviously knew of its existence." Accordingly, the trial court ruled that "the intent and purpose" of § 632.32(4m) were "fulfilled."

II.

A.

¶ 4. As we have seen, the trial court decided this case on summary judgment. The parties agree that there are no contested facts and that this case presents only an issue of law. Thus, our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987) (appellate review of summary-judgment determinations is de novo).

¶ 5. Wisconsin Stat. § 632.32(4m) provides, as material here:

(a)1. An insurer writing policies that insure with respect to a motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by a person arising out of the ownership, maintenance or use of a motor vehicle shall provide to one insured under each such insurance policy that goes into effect after October 1,1995, that is written by the insurer and that does not include underinsured motorist coverage written notice of the availability of underinsured motorist coverage, including a brief description of the coverage. An insurer is required to provide the notice required under this subdivision only one time and in conjunction with the delivery of the policy.
(b) Acceptance or rejection of underinsured motorist coverage by a person after being notified under par. (a) need not be in writing. The absence of a premium payment for underinsured motorist coverage is conclusive proof that the person has rejected such coverage. The rejection of such coverage by the person notified under par. (a) shall apply to all persons insured under the policy, including any renewal of the policy.
(c) If a person rejects underinsured motorist coverage after being notified under par. (a), the insurer is not required to provide such coverage under a policy that is renewed to the person by that insurer unless an insured under the policy subsequently requests such underinsured motorist coverage in writing.

(Footnote added.) Additionally § 632.32(1) provides:

Except as otherwise provided, this section applies to every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle, whether the loss or damage is to property or to a person.

As with our de novo review of summary-judgment determinations, a trial court's application of statutes to facts that are not contested is also reviewed by us de novo, see State v. Wilson, 170 Wis. 2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992), denial of habeas corpus aff'd, Wilson v. McCaughtry, 994 F.2d 1228 (7th Cir. 1993), as is an interpretation of an insurance contract, Martin v. Milwaukee Mutual Insurance Co., 146 Wis. 2d 759, 766, 433 N.W.2d 1, 3 (1988).

¶ 6. We have recently recognized:

Application of statutes requires that we "faithfully give effect to the laws enacted by the legislature." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 662, 681 N.W.2d 110,123-124 ("It is the enacted law, not the unenacted intent, that is binding on the public."). In doing so, "[w]e assume that the legislature's intent is expressed in the statutory language." Id., 2004 WI 58, ¶ 44, 271 Wis. 2d at 662, 681 N.W.2d at 124. If that language is clear, we apply it as it reads because the words used by the legislature are the best evidence of its intent. Id., 2004 WI 58, ¶ 45, 271 Wis. 2d at 663, 681 N.W.2d at 124. Further, we may use context to derive the meaning of words that, when viewed in isolation, appear unclear. Ibid. External sources of legislative intent, that is matters not appearing in statutes themselves, id., 2004 WI 58, ¶ 50, 271 Wis. 2d at 666, 681 N.W.2d at 125, can help to discern legislative intent when the statutory language is not clear on its face, id., 2004 WI 58, ¶¶ 50-51, 271 Wis. 2d at 666-667, 681 N.W.2d at 125-126. External sources may also help "confirm or verify a plain-meaning interpretation." Id., 2004 WI 58, ¶ 51, 271 Wis. 2d at 666-667, 681 N.W.2d at 126.

State v. Swiams, 2004 WI App 217, ¶ 5, 277 Wis. 2d 400, 404-405, 690 N.W.2d 452, 454. Additionally, statutes should not be applied with a hyper-technicality that swamps common sense. Wisconsin Citizens Concerned for Cranes & Doves v. Wisconsin Dep't of Natural Res., 2004 WI 40, ¶ 6, 270 Wis. 2d 318, 329, 677 N.W.2d 612, 617 (statutes should be read and applied to avoid absurd results). We examine the applicable provisions of Wis. Stat. § 632.32 and the Rebernicks' American Family policies against this background.

B.

¶ 7. As the Rebernicks contend, Wis. Stat. § 632.32(1) makes the entire section applicable to "every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle, whether the loss or damage is to property or to a person." Both the underlying automobile policy and the umbrella policy thus fall within § 632.32's purview — each is: (1) an insurance policy that (2) insures against liability for loss or damage. Additionally, § 632.32(4m) itself has language that makes it applicable to American Family, the policies' issuer:

• American Family writes insurance for motor vehicles that are either "registered or principally garaged" in Wisconsin, and
• that insurance protects "against loss resulting from liability imposed by law for bodily injury or death suffered by a person arising out of the ownership, maintenance or use of a motor vehicle."

See § 632.32(4m)(a) 1. Thus, by virtue of both §§ 632.32(1) and 632.32(4m)(a) 1., § 632.32(4m) applies to each policy.

¶ 8. As we have seen, our task in applying statutes is to give effect to what the legislature wanted to accomplish, and, unless the statutory language is ambiguous, the words of a statute are the best evidence of the legislature's intent. Wisconsin Stat. § 632.32(4m) is not ambiguous: if a covered insurance policy does not provide underinsured-motorist coverage, the insurer must notify the insured of its "availability" and must give to the insured "a brief description of the coverage." But the notice in connection with any policy need only be given once. § 632.32(4m)(a)l. ("An insurer is required to provide the notice required under this subdivision only one time and in conjunction with the delivery of the policy."). The legislature wanted insurance companies to tell policy holders that they could buy underinsured-motorist coverage, and once told, the insurance company does not have to tell them again. Moreover, if the policy holder does not buy underinsured-motorist coverage after being told of its availability, the insurance company does not have to give the availability/description notice again in connection with either that policy or any renewals. See § 632.32(4m)(c) ("If a person rejects underinsured motorist coverage after being notified under par. (a), the insurer is not required to provide such coverage under a policy that is renewed to the person by that insurer unless an insured under the policy subsequently requests such underinsured motorist coverage in writing.").

¶ 9. As noted, the umbrella policy's reference to underinsured-motorist coverage declares that there is none "unless this policy is endorsed to provide such coverage." This sufficiently tells the policy holder that underinsured-motorist coverage is available by endorsement. We thus must turn to the second mandate of Wis. Stat. § 632.32(4m), namely that there be "a brief description of the coverage." The umbrella policy does not give any description of underinsured-motorist coverage. But that does not end our inquiry.

¶ 10. As the trial court pointed out, on the umbrella policy's effective date the Rebernicks were already covered by an underlying automobile policy also issued by American Family. The underlying automobile policy not only gave them underinsured-motorist coverage but it also defined the coverage in a special full-page endorsement attached to the policy. That endorsement further explained: "Underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the limits of this Underinsured Motorists coverage." (Bolding in original.) The endorsement told the insureds: "You have this coverage if Underinsured Motorists Coverage is shown in the declarations." The declarations page set out the following under the heading "Coverages and Limits Provided" (bolding in original; uppercasing omitted):

ENDORSEMENT-SEE BELOW
UNDERINSURED MOTORISTS COVERAGE - BODILY INJURY ONLY $100,000 EACH PERSON $300,000 EACH ACCIDENT

(Typography as in original.)

¶ 11. Unlike uninsured-motorist coverage, which every automobile insurance policy must have, Wis. Stat. § 632.32(4)(a), underinsured-motorist coverage is voluntary. Thus, a fair conclusion, which the Rebernicks have not disputed by any summary-judgment eviden-tiary material, is that the Rebernicks voluntarily asked to have underinsured-motorist coverage in the underlying American Family automobile policy. This is further supported by the fact that their underlying policy had, as we have seen, limits of $100,000 underinsured-motorist coverage for each person, and $300,000 for each accident, although the statutory floor is only $25,000 and $50,000, respectively. See § 632.32(4)(a) 1. Indeed, the Rebernicks have not disputed on appeal the trial court's conclusion that they "obviously knew" about underinsured-motorist coverage. Nevertheless, they seek reformation of the umbrella policy to give them underinsured-motorist coverage.

¶ 12. Reformation of an insurance contract may be warranted if the policy as issued reflects a mutual mistake by the contracting parties. Jeske v. General Accident Fire & Life Assurance Corp., 1 Wis. 2d 70, 78, 87, 83 N.W.2d 167, 172, 176 (1957); see also First Nat'l Bank of Kenosha v. Scalzo, 70 Wis. 2d 691, 700, 235 N.W.2d 472, 477 (1975) (deed of trust). Actual knowledge, of course, negates the "mistake" element. See Jeske, 1 Wis. 2d at 92-93, 83 N.W.2d at 179; Scalzo, 70 Wis. 2d at 700, 235 N.W.2d at 477; cf. Illinois Cent. R.R. Co. v. Blaha, 3 Wis. 2d 638, 645, 89 N.W.2d 197, 200-201 (1958) (timely formal notice not required where indem-nitor had timely actual knowledge of both claim and that indemnitee was seeking to hold indemnitor liable).

¶ 13. The Rebernicks knew both: (1) that their umbrella policy could give them underinsured-motorist coverage via an endorsement to that policy, and (2) what underinsured-motorist coverage encompassed. As the trial court recognized, there is no warrant in the context of an equitable reformation action to relieve the Rebernicks of the consequences of their decision to forego an underinsured-motorist coverage endorsement in their American Family umbrella policy, thereby requiring American Family to pay for a risk it did not assume. See Reznichek v. Grail, 150 Wis. 2d 752, 758, 442 N.W.2d 545, 548 (Ct. App. 1989) ("insurers should not be bound to risks which they did not contemplate and for which they received no premium"). Accordingly, we affirm the trial court's order dismissing the Reber-nicks' action against American Family.

By the Court. — Order affirmed.

KESSLER, J.

¶ 14. {concurring in part; dissenting in part). I agree with the Majority that Wis. Stat. § 632.32(4m)(a)l. required American Family to give the Rebernicks notice that they could purchase underin-sured motorist coverage as part of their umbrella liability policy and required American Family to provide a brief description of the coverage. Majority, ¶¶ 1-8. However, I disagree with the Majority, ¶¶ 9-11, that American Family met these requirements. Therefore, I respectfully dissent from that portion of the Majority opinion. Having come, to a different conclusion about what is required of American Family by § 632.32(4m), I believe the Rebernicks are entitled to a meaningful remedy for the clear breach of statutory requirements. Thus, I would require American Family to comply now with the notice provisions, and would permit the Reber-nicks to decide upon receipt of the notice whether to purchase underinsured motorist coverage as an addition to their umbrella policy retroactive to the date that the umbrella policy was first delivered.

¶ 15. Pursuant to Wis. Stat. § 632.32(4m)(a)l., if the insurer issues an insurance policy insuring against "liability for loss or damage . . . caused by any motor vehicle" and that insurance "does not include underin-sured motorist coverage" then the insurer must provide to the insured "written notice of the availability of underinsured motorist coverage, including a description of the coverage." Here, it is undisputed that the Rebernicks' umbrella policy did not include underin-sured motorist coverage, but could have. It is also undisputed that American Family never sent the Reber-nicks a separate written notice that such coverage was available with the umbrella policy.

¶ 16. The Majority concludes that a single clause within the umbrella policy satisfies the Wis. Stat. § 632.32(4m)(a)l. requirement of written notice of the availability of underinsured motorist coverage. Majority, ¶ 9. The clause appears in the record on the fourth page of the umbrella policy as the 21st of 25 listed exclusions. It provides: "Uninsured/Underinsured Motorists. We will not cover any claims which may be made under Uninsured Motorists Coverage, Underin-sured Motorists coverage or similar coverage, unless this policy is endorsed to provide such coverage." (Bold-ing in original.) I disagree that the existence of this clause alone, buried in small type in the midst of a long policy, satisfies § 632.32(4m)(a)l. Nothing in this record establishes that an insured reading this clause would understand that such additional coverage was being offered for sale to the insured, or that such coverage is available in this policy.

¶ 17. Even if the insured has already purchased underinsured motorist coverage in a primary automobile policy, nothing in the record suggests that the same terms and conditions were available in the umbrella policy. It is undisputed that American Family provided no description of the underinsured motorist coverage it would sell the Rebernicks as part of their umbrella policy. The description of underinsured motorist coverage provided to the Rebernicks with their primary policy is not a sufficient description of underinsured motorist coverage that could be available with an umbrella policy. Without a separate description of what is covered in an underinsured motorist endorsement in an umbrella policy, the insured has no way to know whether such coverage is the same or different from the insured's automobile liability rider, or what the price will be. Likewise, an insured cannot know that additional coverage is available without being specifically told that it is. The record does not establish whether underinsured coverage costs the same or whether it applies in the same situations when it is an endorsement to an umbrella policy rather than an automobile liability policy. What we cannot discern from the record, we certainly should not conclude are facts known to the Rebernicks.

¶ 18. I conclude the American Family policy has failed to give either sufficient notice of the availability of an underinsured motorist coverage endorsement to the umbrella policy, or a sufficient description of this coverage as required by statute. The next question, therefore, is what the remedy should be.

¶ 19. American Family failed to comply with the requirements of Wis. Stat. § 632.32(4m). Notice was required at the time the umbrella policy was delivered. Had that occurred, the Rebernicks could have decided whether to purchase underinsured motorist coverage, and in what amount. Had they elected to purchase the coverage, they would have paid American Family the price of the policy. American Family would have been compensated for the risk it assumed and the Reber-nicks would have had the coverage they desired. Returning both parties to the place they would have been, but for American Family's violation of the statute, seems to me to be the only equitable remedy.

¶ 20. The Majority asserts there must have been a mutual mistake in order to provide a remedy. Majority, ¶ 12. If that analysis is correct, in my view, American Family's mistake was an incorrect analysis of its obligations under the law. The Rebernicks' "mistake" in failing to purchase coverage was occasioned by American Family's actions. Because American Family provided no notices, there is no evidence in the record that the Rebernicks had the knowledge or the opportunity to decide whether to add this coverage to their umbrella policy, contrary to the Majority, ¶¶ 12-13.

       The Rebernicks' umbrella policy and their underlying automobile policy became effective in 2001, May 7 and April 29, respectively.

       American Family admitted at oral argument that it does not believe it is ever required to provide either notice of, or a policy term description of, underinsured coverage in connection with an umbrella policy if the insured has purchased a primary automobile liability policy.


author: SNYDER, J.

text:
    Gerald G. Geyso and Helen M. Geyso, Plaintiffs-Appellants, v. Richard Daly and Alice Daly, Defendants-Respondents.
    Court of Appeals

      No. 04-0748.

      Submitted on briefs November 10, 2004.

    Decided December 15, 2004.

    2005 WI App 18
    (Also reported in 691 N.W.2d 915.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael S. Heffernan and Allen A. Arntsen of Foley & Lardner, LLP, Madison.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Richard Scholze of Konicek, Kaiser, Scholze, Wanasek & Zott, S.C., Burlington.
    Before Anderson, EJ., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Gerald G. Geyso and Helen M. Geyso appeal from a judgment denying their request for injunctive relief. The Geysos sought to prohibit Richard Daly and Alice Daly from crossing the Geysos' property to reach County Highway D by any route other than the Dalys' main driveway. The jury returned a verdict in favor of the Geysos; however, the trial court changed the jury's answer to the first question of the special verdict and found, as a matter of law, that the Dalys' use of a second driveway to access County Highway D did not constitute trespass. We disagree, reverse the judgment, and remand with directions to reinstate the jury verdict.

BACKGROUND

¶ 2. The Geysos and the Dalys live on opposite sides of County Highway D in Kenosha county; the Geysos live on the west side and the Dalys live on the east side. This case arises from the fact that County Highway D, including the right-of-way on the east side of the highway, is part of the Geysos' property. The boundary between the Geysos' and the Dalys' properties is the eastern edge of the right-of-way.

¶ 3. The Dalys can access County Highway D using three routes, two of which cross the right-of-way on the Geysos' property. Of those two, one is the Dalys' main driveway and the other is a barnyard entrance ("second gate"), which lies approximately sixty feet south of the main driveway. The Geysos do not dispute the Dalys' right to access County Highway D using the main driveway, but contend that the Dalys do not have permission to access County Highway D by crossing the Geysos' property at the second gate.

¶ 4. These two families have been neighbors for decades. Problems between the two surfaced in the 1990's when the Geysos noticed an increased use of the second gate and found debris, silt, and gravel deposits left by the Dalys on the Geysos' property west of County Highway D. The Geysos also noticed that drain tiles originating on the Dalys' property drained onto the Geysos' property near the east edge of the County Highway D right-of-way.

¶ 5. In November 2002, the Geysos filed suit against the Dalys seeking an injunction prohibiting, among other things: (1) trespassing onto the Geysos' property except by use of the main driveway; (2) depositing debris, silt, and gravel onto the Geysos' property; and (3) maintaining drain tiles that terminate on and drain onto the Geysos' property. Both parties moved for summary judgment. The trial court denied the Geysos' motion and reserved ruling on the Dalys' motion. A trial by jury ensued, and the jury rendered the following special verdict:

QUESTION NO. 1: Did Richard Daly and/or Alice Daly trespass on the property of Gerald G. Geyso and Helen M. Geyso by driving vehicles and farm equipment within the road right of way on the Geyso property?
ANSWER: Yes (Yes or No)
QUESTION NO. 2: Did Richard Daly and/or Alice Daly trespass on the property owned by Gerald G. Geyso and Helen M. Geyso by pushing debris and stone onto the Geyso property?
ANSWER: Tes (Yes or No)
QUESTION NO. 3: Did Richard Daly and/or Alice Daly trespass on the property of Gerald G. Geyso and Helen M. Geyso by maintaining a drain tile outlet within the road right of way of the Geyso property?
ANSWER: No (Yes or No)
QUESTION NO. 4: Answer this question regardless of how you have answered any previous question:
What sum of money, if any, will fairly and reasonably compensate the plaintiffs, Gerald G. Geyso and Helen M. Geyso, for their monetary loss as a result of the trespass?
ANSWER: $62.00

¶ 6. The Geysos moved for judgment on the verdict, requesting that the Dalys be permanently enjoined from trespassing on the Geysos' property other than by use of the Dalys' main driveway. The Dalys moved to change the jury's answer to the first special verdict question from "yes" to "no" and requested that judgment be entered on the verdict so amended. The trial court granted the Dalys' motion, changed the jury's answer to "no," entered judgment denying injunctive relief to the Geysos, and limited the Geysos' recovery to $62 for damages as determined by the jury. The Geysos appeal the judgment.

DISCUSSION

¶ 7. The question presented by the Geysos is whether the Dalys have a right to reasonable access to County Highway D or whether, as members of the public or as abutting landowners, the Dalys have an unlimited right of access. The trial court characterized the Dalys as members of the public and concluded that, as a matter of law, the Dalys did not trespass on the Geysos1 property by using the second gate to access County Highway D. If there is credible evidence to support a jury's verdict, the trial court's amendment of that verdict will be set aside on appeal. Bastman v. Stettin Mut. Ins. Co., 92 Wis. 2d 542, 548, 285 N.W.2d 626 (1979). Where, as here, a trial court decides a question of law on a ,motion to change or set aside the verdict, we review its decision de novo. Greenlee v. Rainbow Auction/Realty Co., 202 Wis. 2d 653, 662, 553 N.W.2d 257 (Ct. App. 1996).

¶ 8. Trespass occurs when a person enters or remains upon land in the possession of another without privilege to do so. Harder v. Maloney, 250 Wis. 233, 238, 26 N.W.2d 830 (1947). The Dalys argue that their status as members of the public entitles them to use the second gate for County Highway D access because highways are for the public use, "upon equal terms, for any purpose consistent with the object for which they are established." Park Hotel Co. v. Ketchum, 184 Wis. 182, 183, 199 N.W. 219 (1924) (citation omitted). The Dalys contend that "[a]s members of the public, [they] have the right to utilize the public right of way for transportation purposes regardless of their status as abutting landowners." The trial court agreed, holding that the Dalys "simply by driving or walking across that property cannot, as a matter of law, commit a trespass on that property because the right that [they have] as ... member[s] of the public to do that is superior to any right that [the Geysos] might have to prohibit [their] use . . .

¶ 9. The Geysos, as owners of the land underlying County Highway D and the right-of-way, have the right to use this land in any way that does not interfere with the rights of the public. See Spence v. Frantz, 195 Wis. 69, 71, 217 N.W. 700 (1928). The Dalys, as members of the public, have but an "easement of passage" in the right-of-way and may use it only for highway purposes. See Walker v. Green Lake County, 269 Wis. 103, 111, 69 N.W.2d 252 (1955) (citation omitted). The Geysos concede that the "Dalys, once on the highway, have the same rights as the public to travel... on the paved surface and to use the unpaved portion of the right-of-way to the extent necessary to achieve the primary purpose of the public easement, which is travel along the roadway." Here, however, the Dalys' use of the second gate achieves a private means of ingress and egress that does not further the purpose of the public easement. We agree with the Geysos that the Dalys' use of the second gate is inconsistent with the rights of the general public; therefore, the Dalys cannot claim that the public easement grants them a privilege to enter onto the Geysos' property.

¶ 10. The Dalys also argue that their privilege to cross the Geysos’ property stems from their status as abutting landowners. They cite Wis. Stat. § 80.47 (2001-02), for support: "The owners of land abutting on any highway. . . shall have a common right in the free and unobstructed use thereof to its full width . .. ." They contend that the statute codifies the common-law right of a property owner to the free and unobstructed use of streets and highways upon which the property abuts. See Royal Transit, Inc. v. Village of West Milwaukee, 266 Wis. 271, 274, 63 N.W.2d 62 (1954).

¶ 11. Landowners whose property abuts a public roadway, but who have no ownership interest in the land under the roadway, are abutting landowners for purposes of access rights. See id.

The right of access to and from a public highway is one of the incidents of ownership ... of land abutting thereon. Such right is appurtenant to the land, and exists when the fee title to the way is in the public as well as when it is in private ownership.

Id. eA, 211 (citation omitted).

¶ 12. The Dalys do not, however, have an unfettered right to access County Highway D by crossing the Geysos' property wherever they choose. In Royal Transit, our supreme court cited with approval the case of Johnson v. Town of Watertown, 38 A.2d 1 (Conn. 1944), and held that the right attributed to an abutting landowner is "the right of reasonable access." Royal Transit, 266 Wis. at 275 (citing Johnson, 38 A.2d at 4). We take guidance from this and other decisions which define the right of an abutting landowner as one of reasonable access. See, e.g., Grossman Invs. v. State, 571 N.W.2d 47, 50 (Minn. Ct. App. 1997) (abutting landowner entitled to reasonably convenient and suitable access in at least one direction); Maloley v. City of Lexington, 536 N.W.2d 916, 921 (Neb. Ct. App. 1995) (abutting landowner's access right means reasonable ingress and egress "from his [or her] premises by way of the street"); Hillerege v. City of Scottsbluff, 83 N.W.2d 76, 85 (Neb. 1957) (abutting landowner has right of reasonable ingress and egress; "[t]he right of access does not extend to all points in the boundary between the abutting property and the street").

¶ 13. We recognize that most cases considering the issue of highway access do not involve private ownership of the land under and alongside the roadway. As Royal Transit demonstrates, however, the underlying principle of reasonable access applies when the property "is in the public as well as when it is in private ownership." Royal Transit, 266 Wis. at 277 (citation omitted). The issue, therefore, is whether the second gate is necessary to provide the Dalys with reasonable access to County Highway D. If not, the Dalys have no privilege to enter onto the Geysos' property using the second gate.

¶ 14. The question of reasonableness is one generally left to the jury. See National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶ 21, 263 Wis. 2d 649, 665 N.W.2d 198. Here, the jury was instructed as follows: "An abutting landowner is one who owns land having a common boundary line with a road or road right-of-way. Abutting landowners have a right of reasonable access to and from the road or highway." It was also instructed on the definition of trespass and the public's right of "passage over the road and right-of-way . . . only for highway purposes." The jury returned its verdict, finding that the Dalys did trespass when they drove vehicles and farm equipment on the right-of-way situated on the Geysos' property. The trial court overruled the jury's finding.

¶ 15. When a trial court changes the answer to a jury's special verdict, we defer to the verdict by applying the "any-credible-evidence" standard. Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 787, 541 N.W.2d 203 (Ct. App. 1995). During the course of the trial, the jury heard testimony that the Dalys had lived on their current property since 1960, purchased it in 1974, and started using the second gate more frequently in recent years, particularly after they fixed up the barn in 1998-99. Richard Daly testified that he uses the second gate to bring hay to the barn, fill the silo, and load cattle. Gerald Geyso testified that the Dalys had two or three other entrances to the barnyard, none of which encroached on the Geysos' property. He further testified that he has never disputed the Dalys' right to use the main driveway to access County Highway D.

¶ 16. The record clearly supports the jury finding that the Dalys trespassed on the Geysos' property by driving vehicles and farm equipment on the right-of-way using the second gate. The jury's answer to the first question of the special verdict indicates that it believed the main driveway provided the Dalys with reasonable access to County Highway D. A jury verdict should be sustained if there is any credible evidence to support the verdict. Morden v. Continental AG, 2000 WI 51, ¶ 38, 235 Wis. 2d 325, 611 N.W.2d 659.

CONCLUSION

¶ 17. We conclude that the jury's answer to the first question of the special verdict is supported by evidence in the record and that the trial court's decision to change the jury's answer was error. We reverse the judgment of the trial court and remand with directions to reinstate the jury's answer to question number one of the special verdict and grant injunctive relief based upon the verdict.

By the Court. — Judgment reversed and cause remanded with directions.

       Generally, an abutting landowner owns to the center of the highway. See Miller v. City of Wauwatosa, 87 Wis. 2d 676, 680, 275 N.W.2d 876 (1979). Here, the Dalys do not own to the center of County Highway D because the land extending to the eastern edge of the highway and its right-of-way is privately owned by the Geysos.