author: LUNDSTEN, J.

text:
    Peggy Paulson, Douglas Paulson, husband and wife, and Michelle Wagner, a minor, by her guardian ad litem, Jim Schernecker, Plaintiffs-Appellants, v. Allstate Insurance Company and Cheryl Schacht, Defendants-Respondents, Group Health Cooperative of South Central Wisconsin, Subrogated-Defendant.
    Court of Appeals

      No. 01-0991.

      Submitted on briefs November 8, 2001.

    Decided June 27, 2002.

    2002 WI App 168
    (Also reported in 649 N.W.2d 645.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Jim Schernecker of Action Law, S.C., Madison.
    On behalf of the defendant-respondent Allstate Insurance Company, the cause was submitted on the brief of Richard G. Niess and David P. Renovitch of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review granted 9-26-02.

   LUNDSTEN, J.

¶ 1. In 1998, a car driven by Cheryl Schacht collided with a car driven by Peggy Paulson. Paulson, her husband, Douglas Paulson, and her daughter, Michelle Wagner (collectively, the Paul-sons), sued Schacht and Schacht's insurer, Allstate Insurance Company. The circuit court found Allstate in default on liability and the case was tried to the court solely on damages. Although the circuit court awarded damages to the Paulsons, it also prohibited the Paul-sons from presenting evidence showing, what the Paul-sons contend was, the full extent of their property damages. The Paulsons appeal.

¶ 2. This case involves three general topics, each with sub-issues: (1) whether the circuit court erred when refusing the Paulsons' request for relief under Wis. Stat. §§ 802.05 and 814.025 (1997-98), based on the Paulsons' assertion that Allstate filed frivolous motions and sham affidavits; (2) whether the collateral source rule, principles of subrogation, and evidentiary rules support the circuit court's decision to limit evidence of property damages; and (3) whether the circuit court erred when awarding costs to each of the three prevailing plaintiffs under Wis. Stat. § 814.04(2). Because these are distinct topics, we provide separate factual backgrounds and discussions for each. We affirm in part, reverse in part, and remand.

I. Request for Sanctions under Wis. Stat. §§ 802.05 and 814.025

A. Background

¶ 3. In October 1999, the Paulsons brought suit against Schacht and Allstate. The Paulsons served Allstate's registered agent for service, CT Corporation Systems, on October 27, 1999. CT Corporation transmitted the summons and complaint to Allstate employee Terry Darling, who received it at Allstate's Brookfield claims office the next day.

¶ 4. Both Schacht and Allstate were represented throughout by Coyne, Niess, Schultz, Becker & Bauer. The firm filed Schacht's answer, but did not file an answer on behalf of Allstate.

¶ 5. About eight months after Allstate's answer was due, Attorney Laura Whipple of Coyne, Niess, Schultz, Becker & Bauer moved for dismissal of all claims against Allstate, asserting insufficiency of service of the summons and complaint. Counsel representing the Paulsons responded by attempting to get information from CT Corporation regarding service. After several days, Attorney Whipple telephoned the Paul-sons' counsel and told him she had learned that Allstate was properly served through CT Corporation. Seven days after moving to dismiss claims against Allstate, Attorney Whipple withdrew the motion.

¶ 6. Attorney Whipple then filed Allstate's answer to the complaint, and Paulsons' counsel immediately moved to strike the answer as untimely. Attorney’ Whipple moved to enlarge time to answer, alleging that Allstate's failure to answer within the statutory time period was the result of excusable neglect. In a supporting memorandum, Attorney Whipple asserted that Allstate believed it had not been served with the summons and complaint. Attorney Whipple conceded that Allstate's registered agent, CT Corporation Systems, had been properly served. However, she alleged that CT Corporation erred by sending the summons and complaint to the wrong Allstate office and that, consequently, the appropriate Allstate claims office, the Brookfield office, had no record of receipt of the summons and complaint. An attached affidavit of Tammy Bellefeuille, an employee of CT Corporation, asserted that CT Corporation addressed the summons and complaint to an Allstate office in a different state. In a second affidavit, Jackie Christiansen, an Allstate claims representative in its Brookfield office, asserted that the Brookfield office had no record of ever receiving the Paulson summons and complaint.

¶ 7. Thereafter, the Paulsons deposed Bellefeuille; Christiansen; Roger Gierhart, a supervisor of CT Corporation; and Annie Brink, an employee of Allstate. These depositions revealed that, regardless of any error regarding an address, CT Corporation successfully transmitted the Paulson summons and complaint to Terry Darling at Allstate's Brookfield office. Annie Brink's deposition revealed that Allstate's own records indicated that Darling received the summons and complaint from CT Corporation in October of 1999.

¶ 8. The Paulsons moved for default judgment against Allstate and moved for an order finding that Allstate submitted "sham" affidavits. In a supporting . memorandum, the Paulsons asserted that Allstate submitted affidavits containing false information in support of its motion to enlarge time to answer and that Allstate's motion to dismiss all claims against Allstate was "frivolous." At a subsequent hearing, the Paulsons argued that Allstate's motion to dismiss was baseless, in violation of Wis. Stat. §§ 802.05 and 814.025. The Paulsons also argued that the affidavits supporting Allstate's motion to enlarge time contained factually unfounded statements not made in good faith, in violation of § 802.05.

¶ 9. The circuit court granted the Paulsons' motion for default judgment against Allstate with respect to liability, but denied the Paulsons' request for sanctions under Wis. Stat. §§ 802.05 and 814.025. The court explained its latter rulings by explaining that Attorney Whipple had not engaged in conduct that was "in any way unethical or inappropriate or a violation of the statute."

B. Discussion

¶ 10. The Paulsons contend the circuit court erred when it declined to sanction Allstate under Wis. Stat. §§ 802.05 and 814.025. As explained below, we remand for reconsideration of sanctions because we conclude the circuit court applied an erroneous legal standard.

¶ 11. Allstate argues that the Paulsons raise this issue for the first time on appeal, and therefore have waived it. Allstate contends that, although the Paul-sons' counsel argued before the circuit court that "affirmative" defenses were frivolous, counsel "never sought an order from the trial court sanctioning, as frivolous, Cheryl Schacht's motion to dismiss under § 814.025 and § 802.05, Stats." However, the record shows that the Paulsons' counsel requested relief under Wis. Stat. §§ 802.05 and 814.025 with respect to the affidavits and motions. Accordingly, we turn to the merits of the Paulsons' challenge.

¶ 12. A decision to award attorney fees under Wis. Stat. §§ 802.05 and 814.025(3)(b) is discretionary. See Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 546-49, 597 N.W.2d 744 (1999). We will sustain a discretionary act if we conclude the circuit court examined the relevant facts, applied a proper standard of law, and, using a rational process, reached a conclusion that a reasonable judge could reach. See Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 233, 594 N.W.2d 370 (1999). Whether the circuit court utilized the proper legal standard is a question of law we review de novo. See Three & One Co. v. Geilfuss, 178 Wis. 2d 400, 410, 504 N.W.2d 393 (Ct. App. 1993).

¶ 13. Wisconsin Stat. § 802.05 provides, in relevant part, that the signature of an attorney or a party on a pleading, motion, or other document constitutes a certification that such paper is well-grounded in fact. If the court determines that an attorney or party failed to make that necessary determination, the court may impose an appropriate sanction on the person who signed the paper or on the represented party or on both.

¶ 14. Pursuant to Wis. Stat. § 814.025(1) and (3)(b), costs and reasonable attorney fees "shall" be awarded to the "successful party" when a defense is "frivolous." A defense is "frivolous" when "[t]he party or the party's attorney knew, or should have known, that the [defense] was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."

¶ 15. Allstate suggests that Wis. Stat. § 814.025(3)(b) only covers legal arguments, not factual matters, because it refers to defenses and claims made "without any reasonable basis in law or equity [and that cannot] be supported by a good faith argument for an extension, modification or reversal' of existing law." However, § 814.025(3)(b) encompasses claims that are frivolous precisely because "knowledge of the relevant facts [that the party knew or should have known] would lead a reasonable party or attorney to conclude that [the claim] is frivolous." James A.O. v. George C.B., 182 Wis. 2d 166, 184, 513 N.W.2d 410 (Ct. App. 1994); see also Stoll v. Adriansen, 122 Wis. 2d 503, 515, 362 N.W.2d 182 (Ct. App. 1984) ("[T]he statute assumes and requires an adequate investigation of the facts and law.").

¶ 16. In denying the Paulsons' request for sanctions, the circuit court addressed only the conduct of Allstate's counsel and concluded she did nothing improper. The court observed that employees of Allstate, not counsel, executed the affidavits containing factual inaccuracies. However, as explained above, both Wis. Stat. § 802.05(l)(á) and Wis. Stat. § 814.025(3)(b) are also directed at the conduct of the party. Thus, the circuit court erred in its legal analysis by focusing solely on the conduct of Allstate's counsel. Moreover, remand is appropriate because the record strongly suggests sanctions are warranted.

¶ 17. The Paulsons obtained a default judgment against Allstate by expending considerable time and effort first fending off Allstate's motion to dismiss claims against Allstate and, second, defeating Allstate's claim of excusable neglect in support of its motion to enlarge time to answer. Counsel for the Paulsons demonstrated that the original motion to dismiss was groundless and that the subsequent motion to extend time to answer was based on a false assertion regarding service. The needless effort included contacting CT Corporation initially, deposing multiple employees of CT Corporation and Allstate, drafting several pleadings, and presenting arguments during court appearances.

¶ 18. At a minimum, the circuit court should have considered sanctioning Allstate under Wis. Stat. § 802.05(l)(a) because its employee, Jackie Chris-tiansen, submitted an affidavit falsely asserting that Allstate's Brookfield office did not have a record of having received the Paulson summons and complaint. It is undisputed that this was an incorrect statement, and it also appears undisputed that Allstate's own easily accessible records would have revealed the error if only the records had been checked. In the context of its default ruling against Allstate, the circuit court found "[t]here is really no viable explanation as to what specifically occurred that resulted in [the service information] not being forwarded on behalf of Allstate to the defense counsel."

¶ 19. We need not comment further on possible grounds for sanctions. We remand for reconsideration of the imposition of sanctions, consistent with this opinion.

II. Whether the Circuit Court Properly Excluded Evidence of Property Damages

A. Background

¶ 20. Peggy Paulson sought property damages, medical expenses, lost wages, and pain and suffering. Peggy's husband, Douglas, and her daughter, Michelle Wagner, alleged claims for loss of society, companionship, and loss of consortium. The Paulsons' vehicle insurer, Midwest Security Insurance Company, was named as a subrogee. The Paulsons' vehicle was initially repaired at a cost of $7,542.44 and returned to them. Midwest Security paid $7,042.44 for the repairs ($7,542.44 less a $500 deductible paid by the Paulsons).

¶ 21. Thereafter, Midwest Security negotiated with Schacht's insurer, Allstate. The two insurers agreed that Allstate would pay Midwest Security $4,929.71, an amount equal to 70% of the $7,042.44 Midwest Security had paid for repairs. Allstate paid this amount to Midwest Security to settle Midwest Security's potential subrogation claim.

¶ 22. The circuit court dismissed both Schacht and Midwest Security as parties. The court also granted the Paulsons' motion for default judgment against Allstate with respect to liability.

¶ 23. Allstate filed a motion in limine, seeking to prevent the Paulsons from introducing evidence of their property damages. At the hearing on that motion, Allstate argued that the Paulsons should be prohibited from introducing evidence supporting property damages in the amount of $8,105.93 because, Allstate reasoned, the Paulsons' insurer, Midwest Security, previously settled any claim for property damages with Allstate. The court agreed with Allstate's position, holding that the Paulsons had no claim for property damages apart from the $500 deductible.

¶ 24. At trial, the Paulsons presented evidence of Peggy's personal injuries, loss of consortium, costs associated with loss of use of the vehicle during repairs ($540), wage loss by Peggy ($231), and the deductible paid ($500). These damages and awards are not at issue in this case.

¶ 25. Despite the circuit court's pretrial ruling prohibiting evidence of property damages, Allstate did not object when Peggy testified that on October 1,1998, she returned to the dealership where her vehicle was repaired, complaining that the car was pulling to the right, and received a new steering box at a cost of $559. Peggy also testified that after the accident she had to have new brake rotors installed three times. When the Paulsons attempted to introduce testimony regarding diminution in value, Allstate objected and the court sustained that objection based on its pretrial ruling. However, the court did permit testimony in the form of an offer of proof, and both Peggy and her husband Douglas testified that the car was worth $10,500 prior to the accident, and $2,000 after. The circuit court instructed the Paulsons to make any further offer of proof in writing after the trial.

¶ 26. After trial, the Paulsons submitted affidavits repeating the assertion that the value of the vehicle was $10,500 prior to the collision, and $2,000 after. The Paulson affidavits also averred that the amount for initial repairs was $8,104 and that they subsequently paid $600 to replace the "rotors on the brakes" three times.

B. Discussion

¶ 27. On appeal, the Paulsons make two distinct arguments. First, they argue that, pursuant to the "collateral source rule," they are entitled to recover from Allstate the amount Midwest Security paid for the repair of the vehicle. In effect, the Paulsons argue they are entitled to receive the $7,042.44 from Allstate, even though Midwest Security paid this repair cost and even though Allstate paid Midwest Security for subrogation rights to this amount.

¶ 28. Second, the Paulsons claim that the $7,542.44 ($7,042.44 paid by Midwest Security plus the $500 deductible) is not the full measure of their property damages and, therefore, the court erred in preventing them from introducing evidence of damages that exceeded this amount.

¶ 29. We address these claims separately below, but first briefly set forth the nature of the collateral source rule and relevant principles of subrogation.

1. The Collateral Source Rule and Principles of Subrogation

¶ 30. Under the collateral source rule, a plaintiffs recovery may not be reduced by payments the plaintiff received from a source other than the tortfeasor. Koffman v. Leichtfuss, 2001 WI 111, ¶ 29, 246 Wis. 2d 31, 630 N.W.2d 201. The collateral source rule prevents any payments received by the plaintiff from "inuring to the benefit of a defendant-tortfeasor." Id. The supreme court stated in Koffman:

The rule is grounded in the long-standing policy decision that should a windfall arise as a consequence of an outside payment, the party to profit from that collateral source is "the person who has been injured, not the one whose wrongful acts caused the injury."

Id. (citation omitted). And in Ellsworth v. Schelbrock, 2000 WI 63, ¶ 7, 235 Wis. 2d 678, 611 N.W.2d 764, the supreme court explained that a tortfeasor who is legally responsible for a plaintiffs injuries or damages is not relieved of that obligation simply because the plaintiff had the foresight to arrange for benefits from a collateral source.

¶ 31. The interaction of the collateral source rule and subrogation has been a source of confusion. Koff-man, 2001 WI 111 at ¶ 33. Subrogation is explained in Koffman as follows:

By virtue and to the extent of payments made on behalf of another, a subrogated party obtains a right of recovery in an action against a third-party tortfeasor and is a necessary party in an action against such a tortfeasor. Subrogation exists to ensure that the loss is ultimately placed upon the wrongdoer and to prevent the subrogor from being unjustly enriched through a double recovery, i.e., a recovery from the subrogated party and the hable third party.

Id. (citations omitted).

2. The Paulsons' Claim for $7,042.44, Already Paid hy Midwest Security

¶ 32. The Paulsons claim that, under the collateral source rule, they are entitled to receive from Allstate the full $7,042.44 that Midwest Security paid for car repairs, even though the Paulsons are no longer obligated to pay that amount to the repair shop. Allstate contends that subrogation principles prohibit the Paulsons from receiving any of the $7,042.44 paid by Midwest Security. We reject the positions of both parties and break the dispute over this $7,042.44 amount into two parts: (1) the dispute over $4,929.71 paid by Allstate to Midwest Security to settle Midwest Security's subrogation claim, and (2) the dispute over the remaining $2,112.73.

¶ 33. As to the $4,929.71, we agree with Allstate that denying the Paulsons this amount is consistent with subrogation principles. To the extent Allstate paid Midwest Security to compensate Midwest for money Midwest paid for repairs to the Paulsons' vehicle, Allstate has already compensated the party with subrogation rights to the $4,929.71 of car repair expenses.

¶ 34. Additionally, a key facet of the collateral source rule is that a plaintiffs recovery cannot be reduced by payments or benefits from a source other than the tortfeasor. Koffman, 2001 WI 111 at ¶ 29. The corollary to this facet is that a tortfeasor, or the tortfeasor's insurer, should not be required to pay an amount twice. Here, Allstate, as the tortfeasor's insurer, has been held accountable for and paid $4,929.71.

¶ 35. As to the $2,112.73, we do not write on a clean slate. The dispute regarding this amount is akin to the dispute we resolved in Reed v. Bradley, 2000 WI App 165, 238 Wis. 2d 439, 616 N.W.2d 916. The pertinent facts in Reed are the same as those here, with one exception: Reed dealt with medical damages, while here we address property damages. However, as explained below, this difference does not dictate a different result.

¶ 36. The plaintiffs in Reed were injured in an automobile accident. The plaintiffs' medical expenses, in the amount of $2,978, were paid by their insurer. Id. at ¶ 1. The defendant's insurer negotiated a settlement with the plaintiffs' insurer in which the defendant's insurer paid about 75% of the medical expenses ($2,246) in exchange for assignment of its subrogation claim. Id. Following a trial, the plaintiffs were awarded the difference between what plaintiffs' insurer paid for medical expenses and what defendant's insurer paid for the assignment of subrogation rights ($2,978 - $2,246 = "some $731"). Id. at ¶ 2. The defendant's insurer appealed.

¶ 37. As Allstate does here, the defendant's insurer in Reed claimed that awarding any portion of the amount already paid by plaintiffs' insurer constituted an improper double payment to the plaintiffs. We disagreed, explaining:

In our view, [plaintiffs' insurer's] agreement to settle its limited subrogation claim for less than its face value is analogous to the situation where a health care provider sets an injured plaintiffs broken bone for less than the reasonable cost.

Id. at ¶ 4. Thus, in Reed we likened the situation before us to the situation in which a tortfeasor is required to pay the fair market value of medical expenses, even where the plaintiff acquired the medical services for a lower cost. This approach to tortfeasor liability was subsequently reaffirmed in Koffman. Koffman, 2001 WI 111 at ¶ 26. Indeed, we find nothing in Koffman, or any other decision, that conflicts with our analysis in Reed.

¶ 38. We discern one possible pertinent difference between Reed and the facts here. The subject of subro-gation in Reed was medical expenses, while the subject of subrogation here is property damages. For the reasons that follow, we conclude this is not a difference that should produce a different result.

¶ 39. Generally speaking, the collateral source rule applies to property damages. See Ellsworth, 2000 WI 63 at ¶ 7 (quoting with approval the application of the collateral source rule to wages in Campbell v. Sutliff, 193 Wis. 370, 374, 214 N.W. 374 (1927), overruled on other grounds, Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 92, 102 N.W.2d 393 (1960)). See also Town of Fifield v. State Farm Mut. Auto. Ins. Co., 114 Wis. 2d 518, 521, 339 N.W.2d 348 (Ct. App. 1983), redd on other grounds, 119 Wis. 2d 220, 349 N.W.2d 684 (1984). However, the more specific question here is whether a particular application of the collateral source rule applies to property damage claims, that is, the rule that a tortfeasor is liable for the reasonable value of damages, even if the actual charge to the plaintiff was less. It is this latter, more specific application of the rule that Reed relies on as analogous.

¶ 40. With respect to medical services, it is now well established in Wisconsin that a plaintiff may recover from a tortfeasor the reasonable value of such services, even if the actual charge to the plaintiff was less. Koffman, 2001 WI 111 at ¶¶ 29-32, 47. As the Koffman court explained:

In the context of medical expense damages, the collateral source rule allows the plaintiff to seek recovery of the reasonable value of medical services without consideration of gratuitous medical services rendered or payments made by outside sources on the plaintiffs behalf, including insurance payments.

Id. at ¶ 30.

¶ 41. While the Koffman court spoke of the valuation of medical expense damages as a distinct legal principle, id. at ¶¶ 26-28, we find no suggestion in Koffman that there is something unique about medical expenses as compared with other damages. That is, we find nothing in Koffman suggesting that the requirement that a tortfeasor pay fair market value, regardless of the plaintiffs actual expense, applies only to medical expense damages. To the contrary, the Koffman court justified the application of the collateral source rule to medical expenses using only reasons that would apply equally to property damage claims. For example, the court held that a tortfeasor is liable for the fair market value of medical expenses, regardless of actual cost, to assure "that the liability of similarly situated defendants is not dependent on the relative fortuity of the manner in which each plaintiffs medical expenses are financed." Id. at ¶ 31.

¶ 42. Furthermore, the "Cost of Repair" rule is used in the standard jury instruction regarding damage to repairable personal property. Wisconsin JI — Civil 1804 instructs that one measure of damage is the "Cost of Repair" rule under which cost is measured by the "reasonable" cost of repairs, "not what may have been the actual cost."

¶ 43. Finally, we find no basis for drawing a distinction in terms of subrogation law. In Rimes v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263, 272, 316 N.W.2d 348 (1982), a case applying sub-rogation principles to medical expenses, the court expressly rejected the argument that a distinction should be made between property damage cases and personal injury cases. The Rimes court said this is a "distinction without a difference." Id.

¶ 44. Therefore, because in Reed we applied the rule requiring tortfeasors to pay the fair market value of medical expenses, regardless of assignment of subro-gation rights, and because we can detect no relevant distinction between the situation in this case and the situation in Reed, we follow Reed. Applied here, this means the Paulsons are entitled to at least $2,112.73 in additional damages (the $7,042.44 paid by Midwest Security for repairs reduced by the $4,929.71 Allstate paid Midwest Security).

3. Damages Beyond Those Paid by Midwest Security

¶ 45. The Paulsons also complain they were erroneously prohibited from introducing evidence of vehicle-related damages in excess of the $7,542.44 initial repair expense ($7,042.44 paid by Midwest Security plus the $500 deductible). Allstate does not dispute the general proposition that plaintiffs may recover from a tortfeasor damages not covered by the plaintiffs insurance company. This concession is appropriate. See Koffman, 2001 WI 111 at ¶ 43 (the creation of a subrogation interest does not "extinguish the insured's right to recover [from a tortfeasor] amounts above and beyond those paid by the insurer").

¶ 46. The parties also agree that plaintiffs in an automobile property damage case are entitled to either the reasonable cost of repairs or the diminution in fair market value of the vehicle, whichever is less. This agreement is in keeping with case law and the standard jury instruction. See Engel v. Dunn County, 273 Wis. 218, 222, 77 N.W.2d 408 (1956); Zindell v. Cent. Mut. Ins. Co., 222 Wis. 575, 583, 269 N.W. 327 (1936); Wis JI — Civil 1804; but see Nischke v. Farmers & Merchs. Bank & Trust, 187 Wis. 2d 96, 117-20, 522 N.W.2d 542 (Ct. App. 1994) (general rule inapplicable in property damage case involving environmental cleanup).

¶ 47. Regardless of the reason the circuit court excluded the evidence of additional repair costs during trial, Allstate contends on appeal that the Paulsons are not entitled to remand for the purpose of presenting such evidence because the Paulsons' offer of proof was insufficient. Allstate starts with the proposition that the $7,542.44 repair cost is less than the asserted diminished value and then argues that the pertinent question is whether the Paulsons' offer of proof contains admissible evidence of repair costs in addition to $7,542.44. Allstate asserts the offer of proof is inadequate because (1) the alleged additional repair costs were "relied upon solely to bolster [the Paulsons'] diminution in value claim," not as evidence of additional costs, and (2) even if the Paulsons did offer to testify about additional repairs, their testimony was inadmissible because they offered "no foundation" showing they were competent to testify that the brake repairs were necessitated by the collision with Schacht's vehicle.

¶ 48. As to Allstate's first argument, we disagree that the offer of proof addressed only diminution in value. As recited in the affidavits, both Peggy and Douglas were prepared to testify that the initial repairs cost $8,104 and that they later paid $600 to replace the "rotors on the brakes" three times. The total of these two amounts, $8,704, exceeds the $7,542.44 initial repair expense.

¶ 49. Allstate's remaining argument is that the Paulsons' proffered testimony is inadmissible because the record does not show that the Paulsons are competent to testify that the brake repairs were necessitated by the collision. We agree with Allstate that expert testimony is necessary on subjects outside the realm of ordinary experience. See Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969). But we do not agree that an expert is always needed to establish whether automobile repairs are necessitated by a particular collision.

¶ 50. "The requirement of expert testimony is an extraordinary one, and [should be] applied by the trial court only when unusually complex or esoteric issues are before the jury." White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989). "In everything pertaining to the ordinary and common knowledge of mankind jurors are supposed to be competent, and peculiarly qualified to determine the connection between the cause and effect established by common experience, and to draw the proper conclusions from the facts before them; and if the matter can be decided from ordinary experience and knowledge, the [jurors] are allowed to decide it unaided.. . ." Cramer, 45 Wis. 2d at 153 (citations omitted); see, e.g., State v. Serebin, 119 Wis. 2d 837, 861, 350 N.W.2d 65 (1984) (expert witness not required to demonstrate that residents' weight loss was caused by nursing home's reduction in food portions and available staff); Finken v. Milwaukee County, 120 Wis. 2d 69, 78, 353 N.W.2d 827 (Ct. App. 1984) (expert witness not required to prove a twelve-year-old boy's emotional distress was caused by beating); cf. Johnson v. Heintz, 61 Wis. 2d 585, 590-92, 213 N.W.2d 85 (1973) (expert testimony necessary to demonstrate injuries incurred in a car accident caused a person to fall some four and a half years after the car accident).

¶ 51. Although causation regarding vehicle damage is not always within the realm of ordinary juror experience, we conclude that expert testimony is not required in this case. Peggy Paulson was driving a seven-month-old Saturn automobile when she was hit by Schacht's vehicle. The crash was described in testimony as "severe," and Peggy's air bag deployed. Douglas Paulson testified that when he viewed their car at the scene, he thought the car was a "total loss." The Paulsons' offer of proof can be read as an assertion that the brake problem was first present when the car was returned after the initial repair. Given the vehicle's age, the crash severity, and the sequence of events, the proffered evidence is sufficient to support a finding that the collision caused the brake problem.

¶ 52. Therefore, when viewed in context, the Paulsons' offer of proof was sufficient. Because Allstate has not suggested any other reason why the Paulsons should be prohibited from presenting such evidence, we remand for a new trial on car repair damages exceeding $7,542.44.

III. Costs and Fees under Wis. Stat. § 814.04(2)

A. Background

¶ 53. There are three plaintiffs in this action: Peggy Paulson, Douglas Paulson, and Peggy's daughter Michelle Wagner. After trial, the Paulsons submitted a "bill of costs and fees" requesting statutory attorney fees, pursuant to Wis. Stat. § 814.04(l)(a). The "bill" also identified additional costs available under § 814.04(2), totaling $1,875.96. The Paulsons requested that these § 814.04(2) disbursements be paid by Allstate four times: once to Peggy, once to Michelle, and twice to Douglas. The Paulsons requested double costs for Douglas pursuant to Wis. Stat. § 807.01(3), because his underlying award exceeded his settlement offer.

¶ 54. Allstate argued before the circuit court that the Paulsons' § 814.04(2) disbursements should only be taxed twice: once to compensate the Paulsons for their out-of-pocket disbursements and a second time because Douglas was entitled to double costs pursuant to Wis. Stat. § 807.01(3). Deducting one $59.85 item, Allstate agreed that it should pay $1,816.11 once to the Paul-sons, and then $1,816.11 again to Douglas to fulfill its obligation under § 807.01(3). Thus, Allstate contended it should pay $3,957.22 in costs, representing $325 in attorney fees and $3,632.22 in § 814.04(2) disbursements.

¶ 55. The circuit court issued a written order concluding that each of the Paulsons were separately entitled to statutory attorney fees, with Douglas receiving double attorney fees. Regarding the Paul-sons' § 814.04(2) disbursements, however, the court rejected both the Paulsons' request and the approach suggested by Allstate. The circuit court concluded that each of the Paulsons should be awarded one-third of these disbursements, except that Douglas's one-third should be doubled. In the final judgment, the circuit court awarded $2,826.28 in total costs, including $325 in undisputed attorney fees. It is readily apparent that the circuit court accepted the full amount of § 814.04(2) disbursements asserted by the Paulsons, $1,875.96, and divided this amount in thirds. Thus, the court awarded $625.32 to Peggy and Michelle and double this amount to Douglas.

B. Discussion

¶ 56. The Paulsons argue that Wis. Stat. § 814.04(2) authorizes multiple awards for the same disbursement to multiple plaintiffs in the same action. They rely on Gospodar v. Milwaukee Automobile Insurance Co., 249 Wis. 332, 24 N.W.2d 676 (1946), and Zintek v. Perchik, 163 Wis. 2d 439, 471, 471 N.W.2d 522 (Ct. App. 1991), overruled on other grounds, Steinberg v. Jensen, 194 Wis. 2d 439, 534 N.W.2d 361 (1995), for the proposition that when multiple plaintiffs consolidate their respective causes of action in a single complaint, regardless whether the compulsory joinder statute applies, each plaintiff may recover costs as if he or she had brought suit individually. Thus, the Paulsons assert, the circuit court erred when it failed to award each of them the full amount of the § 814.04(2) disbursements.

¶ 57. Allstate responds that the circuit court correctly rejected the Paulsons' request by relying on Gospodar. Allstate points out that the Paulsons were required to bring their claims in a single action because of the compulsory joinder statute, Wis. Stat. § 803.03(2). In Allstate's view, the circuit court properly concluded that the policy reason for permitting multiple attorney fees to multiple plaintiffs who bring a single lawsuit, as set forth in Gospodar, does not apply here because, unlike the plaintiffs in Gospodar, Douglas and Michelle could not have brought separate lawsuits.

¶ 58. The question presented requires that we construe Wis. Stat. § 814.04(2), a task we perform without deference to the circuit court. See DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids, such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248. The application of a statute to undisputed facts is a question of law which we review de novo. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989).

¶ 59. The Paulsons do not discuss the language of Wis. Stat. § 814.04(2). In particular, they do not suggest why the language of that statute authorizes multiple awards for the same costs in the same lawsuit and they do not assert that the statute is ambiguous. Our own review discloses no ambiguity. There is nothing in the language of the statute suggesting that it authorizes multiple awards for the same disbursement to multiple plaintiffs in the same action. On its face, § 814.04(2) simply identifies and authorizes a court to award various out-of-pocket costs while placing upper limits on some of these costs.

¶ 60. As noted above, the parties do discuss Gos-podar and Zintek. However, these cases address the propriety of awarding multiple statutory attorney fees under Wis. Stat. § 814.04(1), they do not address § 814.04(2) disbursements.

¶ 61. The attorney fees subsection, Wis. Stat. § 814.04(1), specifies a set amount for attorney fees, rangingfrom $15.00 to $100.00, depending on the amount of recovery. These fixed amounts apply regardless whether multiple plaintiffs employ a single attorney, and regardless of actual attorney fees. The statute is not designed to reimburse actual out-of-pocket attorney costs. At the same time, under Gospodar and Zintek, when there are multiple plaintiffs in a single action, attorney fees are multiplied. Gospodar, 249 Wis. at 339-39a; Zintek, 163 Wis. 2d at 471-72. This is a sensible interpretation of § 814.04(1) because additional plaintiffs invariably cause some amount of additional attorney work. In any event, attorney fees in subsection (1) are determined solely by the amount in controversy. In contrast, subsection (2) of § 814.04 ties awards to actual out-of-pocket costs, while sometimes placing an upper limit on certain costs. Because subsection (2) speaks of actual out-of-pocket expenditures, we see no reason to ignore the plain language of the statute and multiply costs for each additional plaintiff. Thus, the structure of subsections (1) and (2) differ, and we are not bound by prior interpretations of subsection (1).

¶ 62. Accordingly, we hold that when, as here, multiple plaintiffs are required to bring their claims in a single action pursuant to the compulsory joinder statute, Wis. Stat. § 814.04(2) does not authorize multiple awards for the same disbursement to multiple plaintiffs.

IV. Summary

¶ 63. In summary, we reverse and remand for reconsideration the circuit court's decision denying the Paulsons' request for sanctions under Wis. Stat. §§ 802.05 and 814.025. We reverse the circuit court's decision that the Paulsons are not entitled to recover from Allstate any part of the $7,042.44 previously paid by Midwest Security. In this respect, we direct the circuit court to award the Paulsons $2,112.73 ($7,042.44 paid by Midwest Security for repairs reduced by $4,929.71 Allstate paid Midwest Security). We also reverse the circuit court's decision prohibiting the Paul-sons from presenting evidence of damages exceeding $7,542.44 (the amount paid by Midwest Security plus the deductible paid by the Paulsons) and remand for further proceedings consistent with section II.B.3. of this opinion. We affirm the circuit court in all other respects.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       At one point in its appellate brief, Allstate seems to argue that it should not be sanctioned for the motion to dismiss because the motion was filed by Schacht, not Allstate. However, it is apparent that Attorney Whipple was acting on Allstate's behalf, not Schacht's, when she filed the motion to dismiss claims against Allstate. Allstate does not suggest, and we cannot conceive of, any way in which the dismissal motion benefited Schacht.

       WISCONSIN Stat. § 802.05(1) (a) states, in relevant part:
      The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If the court determines that an attorney or party failed to read or make the determinations required under this subsection before signing any petition, motion or other paper, the court may, upon motion or upon its own initiative, impose an appropriate sanction on the person who signed the pleading, motion or other paper, or on a represented party, or on both. The sanction may include an order to pay to the other party the amount of reasonable expenses incurred by that party because of the filing of the pleading, motion or other paper, including reasonable attorney fees.

       WISCONSIN Stat. § 814.025 states, in relevant part:
      (1) If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.
      (3) In order to find an action, special proceeding, counterclaim, defense or cross complaint to be frivolous under sub. (1), the court must find one or more of the following:
      (b) The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

       Allstate has not argued that its motions are not covered by Wis. Stat. § 814.025 and, consequently, we do not resolve the matter. However, because we remand this case, we direct the parties' attention to Gardner v. Gardner, 190 Wis. 2d 216, 245, 248-51, 527 N.W.2d 701 (Ct. App. 1994); Schaefer v. Northern Assurance Co. of America, 182 Wis. 2d 148, 162-63, 513 N.W.2d 615 (Ct. App. 1994); Gagnow v. Haase, 149 Wis. 2d 542, 545-46, 439 N.W.2d 593 (Ct. App. 1989); and Wengerd v. Rinehart, 114 Wis. 2d 575, 578-83, 338 N.W.2d 861 (Ct. App. 1983).

       The parties do not address the discrepancy between the $8,104 repair cost asserted by the Paulsons in their affidavits and the $7,542.44 repair amount referred to elsewhere in the briefs and in the record. However, it appears the $8,104 amount was arrived at by adding the steering box expense, $559, which Peggy testified about at trial, to the $7,542.44 figure. Regardless, because the Paulsons' affidavits assert the $8,104 figure, we will assume they are prepared to present evidence supporting or explaining that amount.

       WISCONSIN Stat. § 807.01(3) provides:
      After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.
      Wisconsin Stat. § 814.04 provides, in relevant part:
      (1) ATTORNEY FEES, (a) When the amount recovered or the value of the property involved is $1,000 or over, attorney fees shall be $100; when it is less than $1,000 and is $500 or over, $50; when it is less than $500 and is $200 or over, $25; and when it is less than $200, $15.
      (2) DISBURSEMENTS. All the necessary disbursements and fees allowed by law; the compensation of referees; a reasonable disbursement for the service of process or other papers in an action when the same are served by a person authorized by law other than an officer, but the item may not exceed the authorized sheriffs fee for the same service; amounts actually paid out for certified copies of papers and records in any public office; postage, telegraphing, telephoning and express; depositions including copies; plats and photographs, not exceeding $50 for each item; an expert witness fee not exceeding $100 for each expert who testifies, exclusive of the standard witness fee and mileage which shall also be taxed for each expert; and in actions relating to or affecting the title to lands, the cost of procuring an abstract of title to the lands. Guardian ad litem fees shall not be taxed as a cost or disbursement.

       The $59.85 item was for "Certified copies: medical records." In the circuit court, Allstate relied on Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138, 148, 549 N.W.2d 714 (1996), to assert that this cost is not allowed. The Paulsons responded that it is an allowable cost, citing Seltrecht v. Bremer, 214 Wis. 2d 110, 124-25, 571 N.W.2d 686 (Ct. App. 1997). We do not address the question because the circuit court's final order includes this amount and Allstate has not complained.

       Allstate does not dispute the amount of attorney fees awarded under Wis. Stat. § 814.04(l)(a): $100 to Peggy, double that amount to Douglas pursuant to Wis. Stat. § 807.01(3), and $25 to Michelle.

       While Gospodar uses the term "costs," the briefing in that case and subsequent decisions make clear that the item of cost at issue was statutory attorney fees under the predecessor statute to Wis. Stat. § 814.04(1). The applicable statute in Gospodar was Wis. Stat. § 271.04 (1943), the predecessor to § 814.04. Under § 271.04(1) and (2), "costs" were defined as "fees" and "disbursements" respectively. Although the legislature changed the word "fees" in § 271.04(1) to "attorney fees" in § 814.04(1), substantively the text of subsection (1) remains the same. Indeed, in both Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 577 N.W.2d 617 (1998), and Zintek v. Perchik, 163 Wis. 2d 439, 471 N.W.2d 522 (Ct. App. 1991), the supreme court and this court indicated that Gospodar applies to attorney fees. See Gorton, 217 Wis. 2d at 513; Zintek, 163 Wis. 2d at 471-72.

       This is a compulsory joinder case and our holding is limited to that situation. We express no opinion on the application of Wis. Stat. § 814.04(2) to non-compulsory joinder cases. We also note an issue the parties might have raised, but have not. The parties agree that Douglas should be awarded double his § 814.04(2) disbursements, pursuant to Wis. Stat. § 807.01(3). The question remains — What amount should be doubled? Allstate agreed before the circuit court that all § 814.04(2) disbursements could be doubled. However, the circuit court divided the plaintiffs' § 814.04(2) disbursements in thirds, awarded one-third to each, and then doubled Douglas's one-third. This method resulted in a total out-of-pocket-costs award to the Paulsons of about $1,100 less than agreed to by Allstate. The Paulsons have not attempted to show that the circuit court's approach violates the statutes and the parties have not briefed the issue. We affirm the circuit court's award in this respect, but express no opinion on the propriety of its methodology.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Thomas P. Sterzinger, Defendant-Appellant.

    Court of Appeals

      No. 01-1440-CR.

      Submitted on briefs January 11, 2002.

      Decided June 27, 2002.

    2002 WI App 171
    (Also reported in 649 N.W.2d 677.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and' Deininger, JJ.

       Petition to review denied 9-26-02.

   DEININGER, J.

¶ 1. A jury found Thomas Sterz-inger guilty of fleeing an officer, contrary to Wis. Stat. § 346.04(3) (1999-2000), after he failed to obey a police officer's signal to stop his vehicle. Sterzinger claims the instructions given to the jury regarding the elements of the offense were deficient in that they failed to specify that in order to find him guilty, the jury must be convinced: (1) that he actually interfered with or endangered the operation of another vehicle or pedestrian; and (2) that he did so knowingly. He also argues that the evidence at trial was insufficient to convict him of the offense.

¶ 2. We conclude, however, that the scienter requirement of Wis. Stat. § 346.04(3) applies only to the first element of the offense, that a driver "knowingly flee or attempt to elude" an officer. We also conclude that the statute does not require the operator of a fleeing vehicle to actually interfere with or endanger identifiable vehicles or persons; he or she need only drive in a manner that creates a risk or likelihood of that occurring. Finally, we conclude. that the State produced sufficient evidence to sustain the jury's guilty verdict. Accordingly, we affirm the appealed judgment of conviction and the order denying postconviction relief.

BACKGROUND

¶ 3. A Town of Owen police officer activated the siren and flashing lights of his marked squad car after observing Sterzinger's pickup truck commit a possible traffic violation. Sterzinger continued to drive his truck on town roads, rolling through two posted stop signs but generally obeying posted speed limits. While the officer pursued Sterzinger with lights and siren activated on a two-way gravel road, an oncoming truck pulled to the side of the road and a woman pushing a stroller steered the stroller into a ditch as the two vehicles passed. Sterzinger eventually pulled into his own driveway where the officer placed him under arrest.

¶ 4. The State charged Sterzinger with felony fleeing from an officer. See Wis. Stát. §§ 346.04(3) and 346.17(3)(a). The case was tried to a jury, and the court instructed jurors as follows regarding the elements of the offense:

Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following two elements were present:
The first element requires that the defendant operated a motor vehicle on a highway after receiving a visual or audible signal from a marked police vehicle. The second element requires the defendant knowingly attempted to elude a traffic officer by willful disregard of the visual or audible signal so as to, A, interfere with or endanger other vehicles in an attempt to elude or, B, by increasing the speed of the vehicle in an attempt to elude.

Sterzinger did not object to the giving of this instruction. The jury found him guilty and the court imposed a stayed prison sentence and placed Sterzinger on probation. He moved for postconviction relief seeking a new trial in the interest of justice or because his counsel was ineffective in failing to object to the jury instructions. The trial court denied Sterzinger's motion and he appeals the judgment of conviction and the order denying postconviction relief.

ANALYSIS

¶ 5. The principal issue in this appeal is one of statutory interpretation, a question of law which we decide de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The language at issue is the following:

No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by wilful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians ....

Wis. Stat. § 346.04(3).

¶ 6. Sterzinger argues that the scienter or mens rea requirement of the statute applies to both "flee or attempt to elude" and "interfere with or endanger." That is, he claims that it is not enough for the State to show that he knowingly disobeyed an officer's signal by fleeing or attempting to elude the officer, but that it must also prove that he knowingly interfered with or endangered another vehicle or person. Sterzinger also argues that Wis. Stat. § 346.04(3) requires actual interference with or endangerment of the police vehicle or other identified vehicles or pedestrians, as opposed to simply creating a risk of such interference or endangerment.

¶ 7. We first address what the statute requires the State to prove a defendant knew in order to convict him of felony fleeing under Wis. Stat. § 346.04(3). There is no dispute that the statute plainly requires knowledge in the first element ("knowingly flee or attempt to elude"), and thus, the legislature did not intend to create a "strict liability" felony offense. See Wis. Stat. § 939.23(1) ("When criminal intent is an element of a crime in chs. 939 to 951, such intent is indicated by the term 'intentionally', the phrase 'with intent to', the phrase 'with intent that', or some form of the verbs 'know' or 'believe'."). We agree with the State's contention that Sterzinger offers very little in the way of support for his claim that the statute requires both a knowing "attempt to elude" an officer and a knowing interference with or endangerment of another vehicle or person.

¶ 8. Sterzinger's reliance on State v. Olson, 175 Wis. 2d 628, 498 N.W.2d 661 (1993) is misplaced. The supreme court noted in Olson that" '[t]o inflict substantial punishment on a person who is innocent of any intentional or negligent wrongdoing offends the sense of justice and is ineffective.'" Id. at 637 (quoting State v. Collova, 79 Wis. 2d 473, 486, 255 N.W.2d 581 (1977)). Because Wis. Stat. § 346.04(3) requires that a defendant knowingly flee in willful disregard of an officer's signal, the specter of imprisoning someone who was unaware that he or she engaged in unlawful conduct is simply not present. In short, Olson and Collova provide no support for a claim that in a multiple-element offense, knowledge or intent is required with respect to each element.

¶ 9. Tellingly, Sterzinger makes no argument that the phrasing or structure of the statutory language supports his interpretation, perhaps because it does not. For purposes of analysis, we separate the relevant language of Wis. Stat. § 346.04(3) into three parts, each expressing a distinct thought or idea:

(1) No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle,
(2) shall knowingly flee or attempt to elude any traffic officer,
(3) by wilful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians.

The first segment requires that a vehicle be operated after receipt of a signal from an officer, which constitutes the first element of the offense. See Wis JI— Criminal 2630. The second segment encompasses a knowing act (fleeing or attempting to elude the officer), which results in criminal liability under the statute if it is accompanied by one of three additional facts, the first of which is set forth in the third segment. This segment expresses the requirement that the operator's "wilful. . . disregard" of the officer's signal be done in a manner "so as to interfere with or endanger" another vehicle or person.

¶ 10. Sterzinger claims that we must read the statute in such a way that the word "knowingly" performs double duty, i.e., that it not only modifies the immediately adjacent "flee or attempt to elude," which it plainly does, but that it also hovers above the intervening nineteen words and reinserts itself in the following location: "so as to [knowingly] interfere with or endanger." We agree with the State that this reading is strained and implausible, and we decline to adopt it. See Trott v. DHFS, 2001WI App 68, ¶ 15, 242 Wis. 2d 397, 626 N.W.2d 48 (rejecting an interpretation of a rule as "not plausible in light of the regulation's plain language and framework"); Maxey v. Racine Redevelopment Auth., 120 Wis. 2d 13, 20, 353 N.W.2d 812 (Ct. App. 1984) (noting that when construing statutes, courts will avoid "unrealistic and unreasonable" interpretations).

¶ 11. Our conclusion that "knowingly" in Wis. Stat. § 346.04(3) applies to only "flee or attempt to elude," and not to "interfere with or endanger," is consistent with the Criminal Jury Instruction Committee's reading of the statute. See Wis JI— Criminal 2630. Our interpretation also finds support in State v. Van Meter, 72 Wis. 2d 754, 242 N.W.2d 206 (1976). We acknowledge that Van Meter did not involve either the issue of scienter or any dispute over the proper interpretation of the statute. Nonetheless, in its analysis the court said this:

The violated statute requires . . . that he knowingly fled or attempted to elude the traffic officer by wilful or wanton disregard of the signal, so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicle or pedestrians.

Id. at 759. By placing a comma before "so as to interfere with or endanger," the supreme court indicated that it too reads the statute as confining "knowingly" to the act of fleeing.

¶ 12. Sterzinger next claims that the statute requires the State to prove that by fleeing in willful disregard of an officer's signal, a defendant actually interfered with or endangered either the officer, his or her squad car, or some other, identifiable person or vehicle. The phrase "so as to" is not defined in Wis. Stat. § 346.04(3) or Wisconsin case law. A dictionary definition of the phrase "so as" is "with the result or purpose." "Result" implies that an actual interference with or endangerment of others must occur, but "purpose" connotes an outcome that is intended or likely, but not necessarily certain, to occur. We conclude therefore that the statute is ambiguous because reasonably well-informed persons could read it to require that the defendant's conduct actually interfere with or endanger other persons or vehicles, while others could conclude that conduct which creates a risk or likelihood of interference or endangerment is sufficient. See Setagord, 211 Wis. 2d at 406.

¶ 13. Because Wis. Stat. § 346.04(3) is ambiguous regarding whether other vehicles or persons must actually be interfered with or endangered, or whether an incident of fleeing need only be shown to create that likelihood, we may turn to extrinsic materials to assist us in ascertaining the legislature's intent. Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25-26, 559 N.W.2d 563 (1997). Sterzinger points out that in several criminal statutes, where the legislature intends to penalize conduct that merely creates a risk of harm to others, it has said so expressly. See, e.g., Wis. Stat. §§ 940.19(6); 941.10(2); 943.70(3)(b)4. We agree that the legislature could have more clearly stated its intent in Wis. Stat. § 346.04(3) by choosing language other than the ambiguous phrase "so as to." But, we conclude that its use of more precise language in other chapters does not necessarily mean that the legislature did not intend to penalize risk-creating conduct in § 346.04(3). We also conclude that it is more instructive to examine the legislature's use of "so as to" in other sections of Wis. Stat. ch. 346 ("Rules of the Road") rather than to base our interpretation on the legislature's use of different language in another chapter of the statutes.

¶ 14. The phrase "so as to" is found in several other sections of Wis. Stat. ch. 346, and unfortunately, these other traffic statutes could lend support to either interpretation. For example, under Wis. Stat. § 346.33(1) and (2), operators are prohibited, under certain circumstances, from turning a vehicle "so as to proceed in the opposite direction" on a highway. The use of the phrase in § 346.33 seems to plainly prohibit an actual result — proceeding in the opposite direction. It would make little sense to read these provisions as meaning operators may not turn their vehicles in such a way as to "create the risk or likelihood" that their vehicles will proceed in the opposite direction.

¶ 15. On the other hand, Wis. Stat. § 346.505(2) (b) prohibits persons from parking or stopping their vehicles, "temporarily or otherwise," on "any portion of a street, highway or parking facility so as to obstruct, block or otherwise limit the use of a space reserved for physically disabled persons. We conclude that in § 346.505 it would not make sense for the phrase to mean that an officer may not ticket an offending vehicle unless a disabled person is actually prevented from using the designated space. It is more reasonable to conclude that a violation occurs under § 346.505 when a vehicle is so situated that it creates a risk or likelihood that an eligible vehicle would be denied access to the space.

¶ 16. Thus, an examination of other Wisconsin traffic statutes employing the phrase "so as to" does not necessarily enlighten us as to what the legislature intended when it employed the phrase in Wis. Stat. § 346.04(3). Sterzinger urges us to apply the "rule of lenity," resolving any doubt or ambiguity in his favor by adopting his interpretation that in order to convict him the State must show that his fleeing actually interfered with or endangered an identifiable person or vehicle. We decline to do so because we agree with the State that Sterzinger's interpretation leads to an unreasonable result, one which the legislature could not have intended. The rule of lenity (or of "strict construction" of penal statutes) is " 'not violated by taking the commonsense view of the statute as a whole and giving effect to the object of the legislature, if a reasonable construction of the words permits it.'" State v. Kittilstad, 231 Wis. 2d 245, 267, 603 N.W.2d 732 (1999) (citation omitted). That is the case here.

¶ 17. We conclude that the State's interpretation meets the test expressed in Kittilstad. That the legislature's purpose in creating Wis. Stat. § 346.04(3) was to penalize risk-creating behavior is demonstrated by the alternative factors that can render a fleeing episode criminal under the statute — increasing the speed of the vehicle, or extinguishing its lights, in an attempt to flee or elude. {See footnotes 2 and 3.) Neither of the latter alternatives require that another person or vehicle be interfered with or endangered. Increasing a vehicle's speed or extinguishing its lights while fleeing or attempting to elude an officer present obvious and inherent safety risks which the legislature deemed sufficient for the imposition of criminal liability. It is reasonable, therefore, to infer that the legislature similarly intended to punish risk-creating behavior in the first, more general alternative, fleeing "so as to interfere with or endanger" other persons or vehicles.

¶ 18. Support for this conclusion is also to be found in the State of Wisconsin Criminal Penalties Study Committee Final Report, dated August 31, 1999, which gives the following explanation for the 1993 legislative amendment which upgraded the offense of fleeing an officer from a misdemeanor to a felony:

Until 1994 an act of fleeing that did not result in injury or property damage was a misdemeanor offense. In that year the misdemeanor was elevated to a 2-year felony. Doubtless this occurred because some fleeing episodes, though not resulting in injury or property damage, nonetheless pose great threats to the safety of officers and others and thus deserve felony treatment.

Criminal Penalties Study Committee Final Report, Part II, D.4.d., at 57 (footnotes omitted). Although Sterz-inger cites this passage in support of his claim that identifiable individuals must actually be threatened, we are persuaded otherwise. The committee's conclusion that the legislature's intent was to penalize conduct which "pose[d] great threats to the safety of officers and others" in fact supports the State's interpretation that a risk or likelihood that others might be endangered by the defendant's conduct is sufficient for a conviction.

¶ 19. We thus conclude that the trial court did not err in its interpretation of Wis. Stat. § 346.04(3), and accordingly, the instructions it gave the jury regarding the elements of the offense were not an erroneous statement of the law. There is no basis, therefore, for us to set aside the verdict, either on account of the failure of Sterzinger's counsel to object to the instructions or in the interest of justice.

¶ 20. Finally, Sterzinger claims that the State did not present sufficient evidence to sustain the jury's guilty verdict. We disagree. As we have discussed, the State was not required to show that Sterzinger actually interfered with or endangered other identifiable vehicles or persons, contrary to the premise on which Sterzinger's challenge to the sufficiency of the evidence rests. The arresting officer testified that Sterzinger rolled through two stop signs, and that he drove down the center of a two-lane gravel road while attempting to elude the officer. The officer also testified that a woman with a stroller took to a ditch, and an oncoming truck pulled over, as Sterzinger's truck and the officer's squad car approached and passed.

¶ 21. Sterzinger argues that, under Wis. Stat. § 346.19, the truck driver was required to pull over for the squad car because it was giving an audible signal, and that both the oncoming truck and the pedestrian were responding to the squad car's siren and lights, not to Sterzinger's operation of his vehicle. We emphasize again, however, that the presence or actions of specific vehicles and pedestrians are irrelevant to the State's case and its burden of proof. What the State needed to convince the jury of is that Sterzinger's actions in fleeing from the officer were likely to interfere with or endanger other persons or vehicles, including the officer and his squad car.

¶ 22. We conclude that the State presented sufficient evidence to satisfy its burden. The State presented testimony from which the jury could reasonably infer that Sterzinger knowingly fled from the officer, willfully disregarding signals from the officer's marked squad car, and in so doing, operated his vehicle in a manner likely to interfere with or endanger other vehicles or pedestrians. Moreover, the State produced evidence that at least one motorist and one pedestrian were likely endangered or interfered with, although proof of those facts was not required. We are satisfied that the testimony the State presented at trial meets the test set forth in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990).

[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the. evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

Id. at 507 (citations omitted).

¶ 23. We note in closing Sterzinger's concern that our conclusions effectively eliminate any distinction between the felony offense described in Wis. Stat. § 346.04(3) and the non-criminal, forfeiture offense set forth in subsection (1) of the statute. We disagree. In addition to proving the facts necessary to establish the first two "segments" of the statute which we identified above (operation after receipt of an officer's signal, and knowingly fleeing or attempting to elude the officer), the State must also convince the jury, beyond a reasonable doubt, that in the course of fleeing or attempting to elude the officer, the defendant did one of three things — increased the vehicle's speed, extinguished its lights, or operated the vehicle in a manner likely to interfere with the operation of either the police vehicle or another vehicle or to endanger a vehicle, the officer or a pedestrian.

By the Court — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. The text of Wis. Stat. § 346.04(3) is quoted below in the analysis section of this opinion.

       As an alternative to proving that a driver attempted to elude a traffic officer "by wilful or wanton disregard of such signal so as to interfere with or endanger" other vehicles or persons, the State may show that the driver either increased the speed of his vehicle or extinguished its lights "in an attempt to elude or flee." Wis. Stat. § 346.04(3). The State did not rely on either alternative element at trial and the parties do not discuss them on appeal.

       The two alternative facts are "increas[ing] the speed of the operator's vehicle" or "extinguishing] the lights of the vehicle" in an attempt to elude or flee. Wis. Stat. § 346.04(3). See footnote 2 above.

       The RaNdom House DiCtionaey of the English Language 1809-10 (2d ed. 1987).

        See id. at 1570, "purpose" means "an intended or desired result; end; aim; goal."

       As the trial court noted in its decision, it is not reasonable to posit a legislative intent "to allow people to go flying down the road in disregard of stop signs or high rates of speed or whatever it might be, and then at the end of a chase for ten miles say, 'Gee, I happened to be lucky.'"

       The failure to object to the instructions precludes a claim of trial court error. State v. Schumacher, 144 Wis. 2d 388, 409, 424 N.W.2d 672 (1988). As the State concedes, however, we might grant Sterzinger relief if we were to conclude that his counsel rendered ineffective assistance by not objecting, or by way of our discretionary reversal authority under Wis. Stat. § 752.35. As we have discussed, the instructions were not erroneous so no further analysis under either claim is required.

       Subsection (1) prohibits a failure or refusal "to comply with any lawful order, signal or direction of a traffic officer." Wis. Stat. § 346.04(1). The penalty for violating this subsection is a forfeiture of $20 to $100. Wis. Stat. § 346.17(1).