source: Caselaw Access Project

author: CURLEY, J. SCHUDSON, J.

license: Public Domain

text:
    Steven Van Erden and Cherie Van Erden, Plaintiffs-Appellants, v. Joseph A. Sobczak, Defendant, American Family Mutual Insurance Company and City of Milwaukee, Defendants-Respondents, Badger Mutual Insurance, Intervenor.
    Court of Appeals

      No. 02-1595.

      Submitted on briefs January 7, 2004.

    Decided February 17, 2004.

    2004 WI App 40
    (Also reported in 677 N.W.2d 718.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the supplemental brief of Jonathan Cer-mele and Rachel L. Schneider of Eggert & Cermele, S.C., of Milwaukee.
    On behalf of the defendant-respondent American Family Mutual Insurance Company, the cause was submitted on the supplemental brief of James T Murray of Peterson, Johnson & Murray, S.C., of Milwaukee.
    A nonparty supplemental amicus curiae brief was filed by Robert L. Jaskulski of Domnitz, Mawicke & Goisman, S.C., of Milwaukee, and Charles David Schmidt of Cannon & Dunphy, S.C., of Brookfield, on behalf of the Wisconsin Academy of Trial Lawyers.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 5-12-04.

   CURLEY, J.

¶ 1. Steven and Cherie Van Erden appeal from the trial court's order granting summary-judgment and dismissing their declaratory judgment action against the City of Milwaukee, in which the Van Erdens sought a declaration that the City had a duty to offer underinsured motorist (UIM) coverage to Steven Van Erden, as a City employee, in accordance with Wis. Stat. § 632.32(4m)(a)1 (1999-2000). The Van Erdens also appeal from the trial court's order granting summary judgment and dismissing their declaratory judgment action against American Family Mutual Insurance Company (American Family), their automobile insurance carrier, in which they sought full UIM coverage under two policies, despite reducing and anti-stacking clauses in their insurance policies.

¶ 2. With respect to the City, the Van Erdens contend that, as a result of its obligation to provide uninsured motorist (UM) coverage for vehicles owned by the City and operated by its employees, pursuant to Wis. Stat. § 62.67, the City should be classified as "[a]n insurer writing policies" under Wis. Stat. § 632.32(4m)(a)l, and therefore, should be required to offer UIM coverage to its employees. With regard to American Family, the Van Erdens originally argued that the reducing clauses contained in both of the separately issued policies were ambiguous. The Van Erdens also claimed that the UIM policy issued to Steven was illusory because, as a result of an anti-stacking provision, they would never receive any of the UIM benefits under Steven's policy. In their most recently filed brief, they raise several additional arguments. Among them are claims that the declarations page is deficient and the policy is "complex and riddled with problems." Further, they submit that although the policy in Taylor v. Greatway Insurance Co., 2001 WI 93, 245 Wis. 2d 134, 628 N.W.2d 916, appears similar and was found to be unambiguous, the holding is not on point. They also adopt the argument of Wisconsin Association of Trial Lawyers (WATL), insisting that the reducing clause violates the dictates of Wis. Stat. § 632.32(5)(i).

¶ 3. Because the City is self-insured, it is not" [a]n insurer writing policies" subject to Wis. Stat. § 632.32(4m)(a)l. Moreover, Wis. Stat. § 62.67, which specifically applies to cities that are self-insured like Milwaukee, only requires UM coverage. We assume that if the legislature had intended to require that the City offer UIM coverage to its employees, it would have expressly stated so in § 62.67, amended § 62.67 to include UIM coverage when it amended § 632.32 to include subsection (4m), or passed a new statute requiring UIM coverage for City employees. Since not one of these actions was taken, we must conclude that the City, as a self-insurer, was not required to offer UIM coverage. We cannot usurp the legislature's function.

¶ 4. As for American Family's declarations page, although it does not contain a reference to or otherwise alert the policy holder of the UIM reducing clauses, the declarations page need not list every contingency regarding the reducing clause. Furthermore, the policy need not provide a definition of the term "endorsement," or alert the policy holder to its location, in order to be enforceable. Additionally, because the reducing clauses comply with Wis. Stat. § 632.32(5)(i) and clearly set forth the limits under both policies, whether one reads them individually or in the context of the entire policy, we conclude that they are not ambiguous. Finally, because the anti-stacking clause complies with Wis. Stat. § 632.32(5)(f) and clearly sets forth the limits of coverage for injuries suffered by a person in any one accident, we conclude that the coverage is not illusory. Accordingly, the trial court's decision is affirmed.

I. Background.

¶ 5. On November 22, 1998, Milwaukee Police Officer Steven Van Erden's squad car was struck broadside by a vehicle driven by Joseph Sobczak. Officer Van Erden suffered serious injuries. Through Badger Mutual Insurance Company (Badger Mutual), Sobczak carried an automobile liability insurance policy with liability limits of $25,000. Badger Mutual paid the full limits of the policy to Officer Van Erden and his wife, Cherie. The Van Erdens were also paid $159,496.33 in worker's compensation coverage by the City.

¶ 6. The Van Erdens then filed a claim for UIM coverage with their own insurance carrier, American Family. Both policies contained identical reducing and anti-stacking provisions. Based on the terms of the policies, American Family paid the Van Erdens $65,503.67 — the difference between the largest amount of UIM coverage under either policy ($250,000) and the aggregate payments made by Badger Mutual on behalf of Sobczak and the City (as Officer Van Erden's worker's compensation carrier) ($184,496.33).

¶ 7. On November 16, 2001, the Van Erdens filed a declaratory judgment action against the City and American Family. All parties moved for summary judgment. The trial court granted summary judgment in favor of the City and American Family.

II. Analysis.

¶ 8. This appeal involves issues decided pursuant to summary judgment. We apply the same summary judgment methodology as the trial court. Preloznik v. City of Madison, 113 Wis. 2d 112, 115-16, 334 N.W.2d 580 (Ct. App. 1983). Thus, our review of the circuit court's decision to grant summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987).

¶ 9. Summary judgment must be granted if the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. Rule 802.08(2). We must first determine whether the complaint states a claim. Green Spring Farms, 136 Wis. 2d at 315. If the plaintiff has stated a claim and the pleadings show the existence of factual issues, then we must examine whether the moving party has presented a defense that would defeat the claim. Preloznik, 113 Wis. 2d at 116. If the defendant has made a prima facie case for summary judgment, the court examines the pleadings, affidavits, depositions, answers to interrogatories* and admissions on file to determine whether a genuine issue exists as to any material fact, or whether reasonable conflicting inferences may he drawn from undisputed facts, therefore requiring a trial. Green Spring Farms, 136 Wis. 2d at 315.

A. The City is not obligated to provide UIM coverage.

¶ 10. We first confine our analysis within the summary judgment analysis to one issue: whether the City, which is a self-insured entity, is "[a]n insurer writing policies" under Wis. Stat. § 632.32(4m)(a)l, and, therefore, required to offer UIM coverage to its employees. Resolution of this issue involves the interpretation of both § 632.32(4m)(a)l and Wis. Stat. § 62.67.

¶ 11. "The interpretation and application of a statute present questions of law which we review de novo." State v. Volk, 2002 WI App 274, ¶ 34, 258 Wis. 2d 584, 654 N.W.2d 24. Thus, our interpretation of a statute begins with the language of the statute, and if the language is plain and unambiguous, we will apply it without further inquiry into extrinsic interpretive aids, see State v. T.J. International, Inc., 2001 WI 76, ¶ 20, 244 Wis. 2d 481, 628 N.W.2d 774, because "[i]f the language employed is clear and unambiguous, [it] is conclusive of legislative intent," see Cemetery Services, Inc. v. Department of Regulation & Licensing, 221 Wis. 2d 817, 825, 586 N.W.2d 191 (Ct. App. 1998). However,

"[i]f statutory language is ambiguous, that is, 'if reasonable minds could differ as to its meaning,' we look to the scope, history, context, subject matter, and purpose of the statute to help establish its proper interpretation." T.J., 244 Wis. 2d 481, ¶ 20 (citations omitted).

¶ 12. Wisconsin Stat. § 632.32(4m)(a)l provides:

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.

(Emphasis added.) Wisconsin Stat. § 62.67 states:

A 1st class city shall provide uninsured motorist motor vehicle Lability insurance coverage for motor vehicles owned by the city and operated by city employees in the course of employment. The coverage required by this section shall have at least the limits prescribed for uninsured motorist coverage under s. 632.32 (4) (a).

(Emphasis added.)

¶ 13. Despite the fact that Wis. Stat. § 62.67 deals exclusively with UM coverage,, the Van Erdens argue that, as a result of its obligation to provide UM liability coverage under § 62.67, the City should be considered "[a]n insurer writing policies" under Wis. Stat. § 632.32(4m)(a)l, and, therefore, has an obligation to offer UIM coverage to its employees. However, the argument as to whether a self-insured entity is "[a]n insurer writing policies" under § 632.32 has already been settled by this court in Classified Insurance Co. v. Budget Rent-A-Car of Wisconsin, Inc., 186 Wis. 2d 478, 521 N.W.2d 177 (Ct. App. 1994). In Classified, an employee of Budget Rent-A-Car was driving a Budget car when she was involved in a collision with an uninsured motorist. See id. at 480. Budget was self-insured under Wis. Stat. § 344.16 (1989-90). See id. The employee's insurer sued Budget for indemnification/contribution, but the trial court granted summary judgment to Budget, concluding that Budget, as a self-insured entity, was not required to provide UM coverage for occupants of its cars:

We conclude that § 632.32(4) (a), Stats., is inapplicable to Budget as a self-insured entity under § 344.16, Stats. We reach this conclusion based on our determination that § 632.32(4)(a) applies only to policies of insurance issued or delivered in Wisconsin. Budget is not an insurance company and has not issued a policy of insurance. See § 600.03(25), Stats, (defining insurance), § 600.03(27), Stats, (defining insurer), and § 600.03(35), Stats, (defining insurance policy). By merely obtaining a certificate of self-insurance pursuant to ch. 344, Budget did not transform itself into an insurance entity capable of issuing an insurance policy on behalf of the operators of its vehicles.

Id. at 483-84.

¶ 14. We also note that language in our recent decision of Prophet v. Enterprise Rent-A-Car Co., 2000 WI App 171, 238 Wis. 2d 150, 617 N.W.2d 225, applied the same logic to a similar situation involving UIM coverage. We concluded: "Classified still is persuasive authority for the proposition that, absent a specific statutory duty, self-insurers are not required to provide [uninsured motorist] or [underinsured motorist] coverage." Prophet, 238 Wis. 2d 150, ¶ 17 (emphasis and alterations in original) (citation omitted).

¶ 15. Thus, Wis. Stat. § 632.32(4)(a) and (4m)(a) are "inapplicable to ... a self-insured entity." See Classified, 186 Wis. 2d at 483. Accordingly, we conclude that although Wis. Stat. § 62.67 requires the City to provide UM coverage to its employees, § 62.67 does not transmute the City into "[a]n insurer writing policies" under § 632.32(4m)(a)l. Rather, because the City is a self-insured entity, § 632.32(4m)(a)l is inapplicable.

¶ 16. Moreover, if the legislature had intended to open the door wider and require the City to offer UIM coverage, it undoubtedly would have done so by either amending Wis. Stat. § 62.67 or adopting a similar statute dealing with UIM coverage. In the absence of such action on behalf of the legislature, it is clear that neither Wis. Stat. §§ 632.32(4m)(a)l nor 62.67 require the City to offer UIM coverage to its employees.

B. The declarations page is proper.

¶ 17. The Van Erdens now argue that the lack of information found on the declarations page creates "an illusion of coverage which builds false expectations on the part of a reasonable insured." They submit this occurs because:

It is precisely the seemingly straightforward nature of the declarations pages which create [sic] the illusion of coverage. [T]hey make no reference to the UIM limits of $100,000/$300,000 and $250,000/$500,000 being reduced in any fashion. [T]hey fail to alert the insured to reductions for payments made by either: a) a negligent underinsured motorist[;] b) a worker's compensation carrier[;] or c) a disability carrier. [T]hey fail to either provide a definition of the term "endorsement," or explain its significance. [T]hey fail to identify the location of the UIM endorsement. [A]nd most importantly, they fail to inform the insured in any manner, let alone "adequately" as required by Dowhower and Schmitz, that the policy limits are "arrived at by combining payment made from all sources."

(Citations omitted.) We disagree.

¶ 18. The Van Erdens point to no case law that requires the term "endorsement" to be defined or explained or that requires the declarations page to identify the location of the UIM endorsement. In our view, the meaning of the word "endorsement" in the insurance context is well-known. Indeed, WebsteR's Third New International Dictionary (Merriam Webster, Inc. 1993), includes within its definition for endorsement: "a provision added to an insurance contract altering its scope or application[.]" Id. at 749.

¶ 19. While the location of an endorsement is a factor to consider in determining whether the policy is "user-friendly," location on the declarations page is not mandatory. Here, the UIM coverage limit is listed under the word "endorsement" on the declarations page. As each policy's length including the endorsement is only thirteen pages, a policy holder can easily flip through the policy and find the clearly-labeled endorsement page at the end. We also note that following the declarations pages is a helpful index entitled "Quick Reference" that, with the exception of the endorsements, assists the reader in locating particular clauses in the policy.

¶ 20. With respect to their argument that the declarations page must alert the insured to payment reductions or inform the insured that the UIM coverage limits are arrived at by considering payments from other sources, again, no case law supports such sweeping requirements. The declarations pages do reference the upper limits of the UIM coverage, while the endorsements set forth a more detailed explanation of the UIM's limits of liability and the reductions for certain payments. As conceded by the Van Erdens, the declarations page is straightforward, although they contend it is not "informative." Yet, as observed in Folkman v. Quamme, 2003 WI 116, 264 Wis. 2d 617, 665 N.W.2d 857: "Courts cannot ask for an informative declarations page and then fault the insurer for failing to address every nuance and speculative interpretation of coverage that an insured might raise." Id., ¶ 56. Thus, we conclude that the declarations pages build neither false hopes, nor give the illusion of coverage.

C. The reducing clause is not ambiguous.

¶ 21. Next, we must determine whether the reducing clause contained in each of the separate policies is ambiguous. The Van Erdens claim that the clause is ambiguous because it does not clearly indicate that Steven's total UIM coverage ($250,000) would be reduced by his worker's compensation benefits ($159,496.33) and by Sobczak's liability insurance carrier payments ($25,000). The clause, contained in both policies issued to the Van Erdens, states:

The limits of this coverage will be reduced by:
1. A payment made or amount payable by or on behalf of any person or organization which may be legally hable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured motor vehicle.
2. A payment under the Liability coverage of this policy.
3. A payment made or amount payable because of bodily injury under any workers' compensation or disability benefits law or any similar law.

(Emphasis in original.)

¶ 22. "The construction or interpretation of an insurance policy presents a question of law to which we apply de novo review." Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 50, 255 Wis. 2d 61, 647 N.W.2d 223. "We first must determine whether the insurance contract is ambiguous. Words or phrases of an insurance contract are ambiguous if they are susceptible to more than one reasonable construction. Unambiguous language in an insurance contract must not be rewritten by construction." Id., ¶ 51 (citations omitted). Folkman instructs that, "[a]s a general rule, the language in an insurance contract is given its common, ordinary meaning, that is, what the reasonable person in the position of the insured would have understood the words to mean." 264 Wis. 2d 617, ¶ 17 (citations omitted). Stated differently, "[c]ourts will interpret the words of an insurance contract against the insured when the interpretation conforms to what a reasonable person in the position of the insured would have understood the words to mean." Id., ¶ 20.

¶ 23. Also, as Folkman observes: "Some ambiguity is unavoidable because words are unable to anticipate every eventuality. But other ambiguity is the result of the insurer's imperfect preparation of the policy." Id., ¶ 18. Of course, as we discuss later, unambiguous language may also be found ambiguous when read within the context of the entire policy.

¶ 24. With those rules in mind, we turn to the policies' reducing clauses. The Van Erdens argue that the reducing clauses violate the narrow exceptions for reducing UM and UIM coverage as set forth in Wis. Stat. § 632.32(5)(i). We are satisfied that the reducing clauses contained in both of the Van Erdens' policies comply with § 632.32(5)(i), which states:

A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.
3. Amounts paid or payable under any disability benefits laws.

The reducing clause in the policies reads:

The limits of this coverage will be reduced by:
1. A payment made or amount payable by or on behalf of any person or organization which may be legally liable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured motor vehicle.
2. A payment under the Liability coverage of this policy.
3. A payment made or amount payable because of bodily injury under any workers' compensation or disability benefits law or any similar law.

(Emphasis in original.) The Van Erdens have adopted an argument found in WATL's brief. They contend the clause is invalid because, in referencing the disability benefits, it adds to the language found in Wis. Stat. § 632.32(5)(i)3. We disagree.

¶ 25. As noted, the policies state: "A payment made or amount payable because of bodily injury under any workers' compensation or disability benefits law or any similar law." (Emphasis added.) The inclusion of the additional language does no disservice to the legislative intent. The wording merely acts as a catchall phrase for jurisdictions that may call their disability benefits law by another name. Moreover, that language is not in dispute here; Steven Van Erden received only worker's compensation benefits, not disability benefits. After reading the language of the reducing clauses, we conclude they are not ambiguous and they comply with Wis. Stat. § 632.32(5)(i).

¶ 26. Deciding that the language found in the reducing clause is unambiguous does not, however, end the matter. A policy clause can be unambiguous and yet become ambiguous because of the wording of other provisions in the policy. "Occasionally a clear and unambiguous provision may be found ambiguous in the context of the entire policy." Folkman, 264 Wis. 2d 617, ¶ 19.

¶ 27. In determining whether a policy contains any contextual ambiguity, courts are cautioned to read the policy as a whole: "There is a complementary principle to contextual ambiguity. Sometimes it is necessary to look beyond a single clause or sentence to capture the essence of an insurance agreement." Id., ¶ 21. Furthermore, "[t]he language of a policy should not be made ambiguous by isolating a small part from the context of the whole." Id.

¶ 28. The Van Erdens state that Taylor should not be considered in deciding whether there are any contextual ambiguities in the policies' UIM clauses because, while favorably construing an American Family automobile policy, the Taylor court did not find the automobile in question to be an underinsured automobile, and thus, the court never discussed the policy's reducing coverage language. Further, the Van Erdens also submit that there is no way of knowing whether the policies in Taylor are identical to those found here. While we assume the policies are different, we conclude that Taylor provides us with the tools to analyze the policy language.

¶ 29. In Taylor, the supreme court surveyed several major cases touching on UIM insurance coverage. The opinion went beyond simply noting that the auto involved in the controversy was not an underinsured auto:

We conclude that the language in each of American Family's policies at issue satisfies the requirements of Dowhower. Each policy clearly sets forth that Taylor purchased a fixed level of UIM recovery that is arrived at by combining payments from all sources, including payments from Hermanson's liability coverage ....

Taylor, 245 Wis. 2d 134, ¶ 25. Thus, in dicta, Taylor determined both that the UIM clause was Unambiguous and that there was no contextual ambiguity in the policy. Taylor also provides a helpful blueprint for deciding whether any contextual ambiguity exists in the policy.

The first page of each policy, the declarations page, fists the coverage limits of the policy, including the $50,000 limit for UIM coverage. The first page of each policy also includes an instruction to "please read your policy" that is located on the top of the page in bold letters. Page 3 of each policy includes an instruction for the insured to read the policy carefully. Pages 11 and 12 constitute the underinsured motorist coverage endorsement of both policies. The underinsured motorist endorsement of each policy instructs the insured to keep the endorsement with the rest of the policy. This instruction is on the top of the first page of the endorsement in bold letters. The definition for under-insured vehicle is located in both policies on page 1 of the endorsement. The reducing clause for UIM coverage is located in both policies on page 2 of the endorsement. When we read the whole policy carefully, as noted on the first and third pages, we find that the policy clearly sets forth that Taylor purchased a fixed level of UIM recovery that is arrived at by combining payments from all sources, including payments from Herman-son's liability coverage.

Id. (footnote omitted). We have applied a similar analysis to the Van Erdens' policies and found all the safeguards mentioned in Taylor to be present.

¶ 30. Additionally, as directed by Folkman:

The test for determining whether contextual ambiguity exists is the same as the test for ambiguity in any disputed term of a policy. That is, are words or phrases of an insurance contract, when read in the context of the policy's other language, reasonably or fairly susceptible to more than one construction? The standard for determining a reasonable and fair construction is measured by the objective understanding of an ordinary insured.

264 Wis. 2d 617, ¶ 29. Following Folkman's directive, after considering the entire policy, we conclude there is only one objectively reasonable construction. Consequently, we conclude that no contextual ambiguity exists. Thus, our reading of the Van Erdens' policies satisfies us that there is no ambiguity in the wording of the limit of liability provisions or any ambiguity when these provisions are read in conjunction with the entire policy.

¶ 31. Furthermore, the American Family reducing clause complies with the public policy of the legislature expressed in Wis. Stat. § 632.32(5)(i). See State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991) ("While legislative history cannot be used to demonstrate that a statute unambiguous on its face is ambiguous, there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous."). Legislative Memorandum 96-25 to 1995 Act 21, which amended § 632.32 to add subsections (4m) and (5)(f) through (5)(j), states that § 632.32(5)(i):

permits motor vehicle insurance policies to reduce the limit that is payable for uninsured or underinsured motorist coverage for bodily injury or death by payments received from other sources, such as the amounts paid by a person who is legally responsible for the bodily injury or death ... [or] the amounts paid or payable under the worker's compensation law.

¶ 32. The Van Erdens' policies clearly set forth that their UIM coverage would be fixed at a level of recovery that would be arrived at by combining payments made from the listed sources. Thus, under the declared public policy of the legislature, and given our conclusion that the reducing clause is unambiguous in the context of the whole policy, our inquiry is at an end.

D. The UIM coverage is not illusory.

¶ 33. Finally, the Van Erdens claim that their UIM coverage is illusory. They allege that they would never be able to use the UIM coverage under Steven's policy while both policies were in effect because, under the anti-stacking provision contained in each policy, they would always exhaust the higher UIM coverage limit contained in Cherie's policy. Thus, they conclude that the UIM coverage purchased under Steven's policy is illusory because no benefits would ever be paid.

¶ 34. The anti-stacking provision contained in each of the Van Erdens' policies states:

Two or More Cars Insured. The total limit of our liability under all policies issued to you by us shall not exceed the highest limit of liability under one policy.

(Emphasis in original.) This provision is unambiguous and complies with Wis. Stat. § 632.32(5)(f), which states:

A policy may provide that regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid the limits for any coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident.

¶ 35. As American Family's original brief explains, circumstances do exist which would permit Steven Van Erden to utilize his $100,000 limit. The reasoning expressed is sound. If Steven Van Erden were driving his own car and was struck by a driver with lesser insurance limits, he could only avail himself of his policy's UIM coverage, as he would not be entitled to his wife's higher limits due to an exclusion in her policy, which reads: "While occupying, when struck by, a motor vehicle that is not insured under this policy, if it is owned by you or any resident of your household." Thus, the UIM insurance Steven Van Erden carried was not illusory.

¶ 36. Moreover, the anti-stacking provision in question also comports with the legislative policy behind Wis. Stat. § 632.32(5)(f) contained in the Legislative Memorandum 96-25 to 1995 Act 21: "Section 632.32 (5) (f), Stats., as created by the Act, permits motor vehicle insurance policies to prohibit 'stacking' of uninsured or underinsured motorist coverage ... ." (Emphasis in original.) Therefore, we note that the anti-stacking provision contained in the Van Erdens' policies traces the language of § 632.32(5)(f).

¶ 37. Finally, we observe that the policy language found here is also altogether different than that found in Schmitz, in which the court deemed the American Merchant's policy "a maze that is organizationally complex and plainly contradictory." 255 Wis. 2d 61, ¶ 72. The effect of the reducing clause was made clear in the endorsement. The policy made reference to UIM coverage in the declarations page. Further, the endorsement contained no disingenuous or confusing language. Here, there is no contextual ambiguity as there are no inconsistent provisions, provisions that build false expectations, or provisions that produce reasonable alternative meanings. Therefore, we conclude the UIM policy coverage was neither ambiguous nor illusory.

¶ 38. Based upon the foregoing reasons, the trial court's orders are affirmed.

By the Court. — Orders affirmed.

SCHUDSON, J.

(concurring in part; dissenting in part).

¶ 39. I join in the Majority's analysis and conclusion affirming the dismissal of the Van Erdens' action against American Family. I depart, however, from the Majority's decision affirming the dismissal of their action against the City of Milwaukee.

¶ 40. The pivot point is certain. The parties agree that if the City was "[a]n insurer writing policies," see Wis. Stat. § 632.32(4m)(a)l, then the City was required to offer underinsured motorist coverage; if not, the City was not required to do so. Clearly, Wisconsin case law, statutes, and common sense establish that the City was acting as "[a]n insurer writing policies" and, therefore, was required to offer underinsured motorist coverage to Officer Van Erden.

¶ 41. In Millers National Insurance Co. v. City of Milwaukee, 184 Wis. 2d 155, 516 N.W.2d 376 (1994), the supreme court, determining whether the City of Milwaukee was required to provide uninsured motorist coverage to one of its police officers, used a sound, common sense approach: "The City may purchase third-party insurance, it may form a municipal insurance mutual..., it may rely upon self-insurance, or any other lawful means to provide the UM insurance coverage. However, regardless of which means the City chooses to provide insurance, the obligation is the same." Id. at 166 (emphasis added). The supreme court concluded that, "[b]y electing to self-insure," the City had "effectively placed itself in the insurance business" and, therefore, was "responsible for the same liabilities that would attach to third-party insurers covering that same risk." Id. at 167.

¶ 42. Quite reasonably, therefore, the Van Erdens argue that the City, by creating what it calls an "Uninsured Motorist Self-Insurance Plan" as its means of regulating payment of UM benefits, has become an "[ijnsurer writing policies." After all, they contend, while not denominated a "policy," the City's "Plan" carries the attributes of an insurance policy:

The "Plan"... regulates how, when and to whom the City will pay damages; defines who is covered, an uninsured vehicle and motor vehicle accident; sets the City's limits of liability; regulates the effect of other insurance on the City's obligation to pay; sets forth the City's right to maintain a [Wis. Stat. § 102.29 third party liability claim]; regulates when and how disputes over payments would be arbitrated; provides the City a right of subrogation; [and] provides the applicable law, forum and severability of the "Plan's" provisions in the event of dispute.

(Citations omitted.) Thus, the Van Erdens maintain, the City should not be allowed to escape its obligation to its employees simply by mere artifice. I agree.

¶ 43. Millers National and common sense provide more than enough to sustain the Van Erdens' claim. But our statutes provide considerably more support. Among others, the Van Erdens invoke: (1) Wis. Stat. § 600.03(4), defining a" 'blanket insurance policy'" as "a group policy covering unscheduled classes of persons, with the persons insured to be determined by definition of the class with or without designation of the persons covered but without any individual underwriting"; and (2) Wis. Stat. § 600.03(23), defining "[a] 'group insurance policy'" as "a policy covering a group of persons, and issued to a policyholder in behalf of the group for the benefit of group members who are selected under procedures defined in the policy or agreements collateral thereto, with or without members of their families or dependents." The City's "Plan," the Van Erdens contend, may constitute a "policy" under either or both of these provisions. Significantly, the City offers no response to their arguments based on these statutes. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted).

¶ 44. And perhaps most critically, Wis. Stat. § 600.03(35) defines an insurance " '[p]olicy'" as "any document other than a group certificate used to prescribe in writing the terms of an insurance contract, including endorsements and riders and service contracts issued by motor clubs." The City, however, contends that its "Plan" is not a "policy" under the statute because it was not created through offer and acceptance, and with consideration. In their amicus curiae brief, however, the Milwaukee Police Association (MPA) and the Milwaukee Police Supervisors Organization (MPSO) correctly counter:

The contractual elements of offer, acceptance, and consideration are all present. The City offers the UM Plan to MPA and MPSO members because it is part of the package of benefits for City employees who drive city-owned vehicles in the course of their employment. Potential City employees accept this offer when they accept employment with the City. Employees give the City consideration for the insurance contract by working for the City. Also, if the City did not provide this benefit, City employees' unions might bargain for increases in other types of compensation, such as salary. By providing these insurance benefits, consideration flows from the City to the employees.

Thus, the City's "Plan" is indeed a " 'policy'" — a "document ... used to prescribe in writing the terms of an insurance contract." See Wis. Stat. § 600.03(35).

¶ 45. Failing to even mention the supreme court's decision in Millers National, the Majority primarily relies on this court's decisions in Classified Insurance Co. v. Budget Rent-A-Car of Wisconsin, Inc., 186 Wis. 2d 478, 521 N.W.2d 177 (Ct. App. 1994), and Prophet v. Enterprise Rent-A-Car Co., 2000 WI App 171, 238 Wis. 2d 150, 617 N.W.2d 225. Neither case, however, offers much guidance here and, certainly, neither case controls. Evolving from significantly different circumstances, both cases addressed whether Wisconsin's statutes required that out-of-state rental car agencies, holding certificates of self-insurance, provide uninsured motorist coverage. See Classified, 186 Wis. 2d at 483-84; Prophet, 238 Wis. 2d 150, ¶ 18. Here, however, we are considering a completely different issue: whether a self-insured in-state party's "Plan" constitutes a "policy" triggering its statutory obligation to offer UIM coverage to its employees.

¶ 46. As the supreme court declared: "The fact that the City is self-insured does not diminish its obligation .... In this context, self-insurance is considered another form of insurance .... [T]he City has effectively placed itself in the insurance business." Millers National, 184 Wis. 2d at 166-67. The City's "Plan" walks and squawks like a "policy" duck. Swimming in the insurance pond, the City is "[a]n insurer writing policies." Thus, the City was required to meet its corresponding obligation to offer UIM coverage to Officer Van Erden under Wis. Stat. § 632.32 (4m)(a)l. Accordingly, on this aspect of the appeal, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Following the release of Van Erden v. Sobczak, 2003 WI App 57, 260 Wis. 2d 881, 659 N.W.2d 896, vacated by 2003 WI 129, 265 Wis. 2d 414, 668 N.W.2d 735, a petition for review was filed on behalf of the plaintiffs-appellants-petitioners, the Van Erdens. Our supreme court granted the petition for review, summarily vacated this court's decision and remanded it with instructions that we should consider our decision in light of Folkman v. Quamme, 2003 WI 116, 264 Wis. 2d 617, 665 N.W.2d 857. Van Erden, 265 Wis. 2d 414. We have done so. After the remand, we permitted additional briefs to be filed concerning the issues involving American Family. Both the Van Erdens and American Family elected to file additional briefs. Also, an amicus curiae brief was filed by the Wisconsin Association of Trial Lawyers (WATL).

       American Family issued separate policies to Steven and Cherie.

       The Van Erdens argue that the inclusion of what they term an "unlawful exclusion," pursuant to the holding in Blazekovic v. City of Milwaukee, 2000 WI 41, 234 Wis. 2d 587, 610 N.W.2d 467, is a reason to not enforce the policy. We decline to address this issue as American Family has not raised as a defense the fact that Steven Van Erden was driving a non-owned emergency-type vehicle when the accident occurred. Thus, we follow the Folkman directive that "inconsistencies in the context of a policy must be material to the issue in dispute and be of such a nature that a reasonable insured would find an alternative meaning." Folkman, 264 Wis. 2d 617, ¶ 32.

       However, some recent decisions from our supreme court involving statutory construction seem to suggest that this standard has been "relaxed," i.e., extrinsic aids have been employed without an explicit determination of ambiguity. For example, in Village of Lannon v. Wood-Land Contractors, Inc., 2003 WI 150, 267 Wis. 2d 158, 672 N.W.2d 275, the supreme court indicated: "[w]hen interpreting a statute, our purpose is to discern legislative intent. To this end, we look first to the language of the statute as the best indication of legislative intent. Additionally, we may examine the statute's context and history." Id., ¶ 13 (citations omitted). In a prior case, in which the supreme court did not explicitly determine the statute in question to be ambiguous, Justice Patience D. Roggensack noted in her concurrence:
      I write separately to point out that the majority opinion's statutory analysis ... is a departure from that which has been this court's mode of statutory analysis and that it is not one that the court has discussed and decided to adopt.
      The majority opinion employs the analytic framework for a statute that is ambiguous, while purposely not analyzing whether [the statute] is ambiguous. This is a change in our traditional analysis .... I offer no opinion about whether our mode of statutory analysis ought to be changed. However, when we change the statutory analysis in a majority opinion without explaining that the majority of the court has not decided to change its analysis, we lead our readers to conclude that we have changed.

        Hubbard v. Messer, 2003 WI 145, ¶¶ 44, 46, 267 Wis. 2d 92, 673 N.W.2d 676 (Roggensack, J., concurring).

       Indeed, we suspect the Van Erdens' policies are identical to the one approved in Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 25, 245 Wis. 2d 134, 628 N.W.2d 916, as both cases deal with a standard American Family automobile insurance policy. Nevertheless, we will assume they are different for analysis purposes.

       Cherie Van Erden's policy contained UIM limits of $250,000 per person and $500,000 per accident, while Steven's limits were $100,000 per person and $300,000 per accident.


author: PETERSON, J.

text:
    Duane D. Betterman, Plaintiff-Respondent, v. Fleming Companies, Inc., Defendant-Appellant.
    Court of Appeals

      No. 02-2617.

      Submitted on briefs January 6, 2004.

    Decided February 17, 2004.

    2004 WI App 44
    (Also reported in 677 N.W.2d 673.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Eric J. Magnuson and Daniel Q. Poretti of Rider, Bennett, Egan & Arundel, LLP, Minneapolis.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kyle H. Torvinen, Kristin M. Watson and Tony Breidenbach of Hendricks, Knudson, Gee & Torvinen, S.C., Superior.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Fleming Companies, Inc., appeals a judgment awarding compensatory and punitive damages to Duane Betterman. Betterman, who worked for Fleming, suffered a mental breakdown at work. He claimed that during his recovery, Fleming falsely assured him that he had a job waiting. Fleming argues: (1) an employee cannot sue an employer for intentional misrepresentation; (2) the existence of a contractual relationship bars a claim for promissory estoppel; (3) the court made numerous errors in computing compensatory damages; and (4) the punitive damages award is excessive. We affirm the judgment.

BACKGROUND

¶ 2. Betterman worked for Fleming and its predecessors for over thirty-one years. Eventually, he was promoted to the position of pricing coordinator. In 1996, Fleming restructured. Betterman's responsibilities increased and he reported to multiple supervisors in different parts of the country. Each supervisor insisted his or her work was a priority. Betterman began working in excess of eleven hours per day, plus weekends.

¶ 3. On February 21, 1997, Betterman suffered a mental breakdown at work. He was admitted to St. Luke's Hospital in Duluth where he was diagnosed with a major depressive disorder and anxiety related to his job.

¶ 4. Fleming's human resources manager, Susan Morrison, sent Betterman forms to fill out for leave under the Family and Medical Leave Act (FMLA). The forms stated Fleming's leave policy that after FMLA leave was exhausted, an employee could go on paid medical leave for approximately fourteen weeks. Then the employee could either go back to work or resign and receive long-term disability benefits. MetLife, Fleming's disability insurance carrier, would provide the long-term disability benefits. The employee would be terminated if he or she did not return to work immediately following the leave of absence.

¶ 5. Betterman met with Morrison on February 27 to discuss the forms. The application for leave of absence consisted of eleven pages. The first part, slightly over three pages long, was entitled "Associate to Complete." It ended with a signature block. The next six pages were entitled "Associate Support Representative to Complete." The third part was for management signatures. The last page, which was to be signed by the employee, was the "Acceptance of Terms of Leave by Associate."

¶ 6. Betterman signed the first part of the application in Morrison's office. Morrison then turned to the last page and told Betterman he needed to sign there as well. Betterman indicated he had not read the section entitled "Associate Support Representative to Complete." There was language in this section indicating that Betterman would be terminated if he did not return to work after his long-term benefits expired. Betterman testified that Morrison said, "Don't worry about it, it don't [sic] pertain to you at this time, don't worry about it. I just need to have that signed so I can continue to send you your paychecks while you're on this leave." Betterman then signed the last page. Morrison never told Betterman about the language indicating he would be resigning.

¶ 7. On April 1, 1997, Fleming sent Betterman a letter stating that long-term disability benefits would begin on August 21, 1997. This is the day Fleming considered Betterman's employment to be terminated, pursuant to its policy.

¶ 8. Betterman testified that after his breakdown he went to Fleming several times. He stated he had conversations with Morrison; with John Sorci, his supervisor; and with Perry Flemmen, the general manager. Betterman testified that he spoke to each of these people about returning to work when he was well again. He stated no one ever told him that he was terminated. For example, Sorci told him, "Duane, don't worry about your job, don't worry about work. He said, you just get better, and when you get better, when you get your release from the doctor, then we'll worry about that." Betterman also stated that Flemmen told him that he would report to Flemmen when he returned to work.

¶ 9. In November 1997, Betterman decided to take funds out of his 401(k) but the fund manager told him he could not withdraw funds because Fleming notified the fund that Betterman was terminated. Consequently, Betterman would either need to take all the money out of his 401(k) or none at all. Betterman then called Morrison, who assured him that he was not terminated and that she would take care of the problem. Betterman contacted the fund several times and was told each time that he was terminated. Eventually, Betterman rolled his 401(k) over into a different account.

¶ 10. In April 1998, MetLife notified Betterman that his disability benefits would terminate on May 21. Betterman went to Fleming to see about returning to work. Morrison told him he would need a letter from a doctor authorizing his return to work. Betterman's psychologist, Dr. Ellen Halverson, wrote a letter stating that Betterman could return to work with limitations. According to Betterman, Morrison said she would send the letter to corporate headquarters to "find out where they're going to start you and what is going to happen."

¶ 11. Betterman then received a letter from Fleming that stated he had not been an employee since August 21, 1997, pursuant to Fleming's leave policy. Betterman testified he did not know he had been terminated until he received this letter.

¶ 12. Betterman first looked for other employment in June 1999. He contacted a friend who owned a grocery store and began working there in July. His long-term disability benefits terminated on August 22, 1999.

¶ 13. Betterman filed suit against Fleming alleging discrimination because of his disability, intentional misrepresentation and promissory estoppel. A six-day trial began on January 14, 2002. The jury determined that Fleming did not discriminate against Betterman. However, the jury did find that Fleming intentionally misrepresented to Betterman that he could return to work. The jury also concluded that Fleming made an express promise to Betterman that he would be employed at Fleming. The jury found that Fleming acted with malice or intentionally disregarded Betterman's rights and awarded Betterman punitive damages of $300,000.

¶ 14. Pursuant to a stipulation, the court conducted a bench trial to determine compensatory damages. The court determined Betterman was entitled to $255,666 for loss of wages, loss of social security benefits, loss of investment income and loss of health insurance benefits.

STANDARD OF REVIEW

¶ 15. Our review of a jury's verdict is narrow. We will sustain a jury verdict if there is any credible evidence to support it. Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979). In applying this narrow standard of review, we consider the evidence in a light most favorable to the jury's determination. Id. It is the jury's role, not an appellate court's, to balance the credibility of witnesses and the weight given to the testimony of those witnesses. Id. To that end, we search the record for credible evidence that sustains the jury's verdict, not for evidence to support a verdict that the jury could have reached but did not. Gonzales v. City of Franklin, 137 Wis. 2d 109, 134, 403 N.W.2d 747 (1987).

¶ 16. The standard of review in this case is even more stringent because the circuit court approved the jury's verdict by denying Fleming's motions after the verdict. We afford special deference to a jury determination in those situations in which the trial court approves the jury's finding. Kuklinski v. Rodriguez, 203 Wis. 2d 324, 331, 552 N.W.2d 869 (Ct. App. 1996). In such cases, we will not overturn the jury's verdict unless "there is such a complete failure of proof that the verdict must be based on speculation." Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979).

DISCUSSION

Intentional misrepresentation

¶ 17. Fleming argues that Wisconsin law does not allow an employee to sue an employer for intentional misrepresentation. Instead, Fleming contends that Bet-terman can only have a claim based on contract. Fleming cites two cases in support of its argument, Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998), and Mackenzie v. Miller Brewing Co., 2001 WI 23, 241 Wis. 2d 700, 623 N.W.2d 739.

¶ 18. In the first case, Tatge filed a claim for intentional misrepresentation against his employer. Tatge argued his supervisor told him nothing would happen if Tatge refused to sign a covenant not to compete. Tatge refused to sign the covenant and was subsequently terminated as a result. Tatge, 219 Wis. 2d at 103-04. The supreme court stated:

We cannot overlook the fact that Tatge's misrepresentation claim finds its lifeline in the improper performance of an employment contract. In other words, Tatge argues that [his employer's] alleged misrepresentation that Tatge would be terminable only for good cause tainted his subsequent termination from employment without good cause.

Id. at 107. A breach of an employment contract is not actionable in tort. Id. Thus, Tatge did not have a valid claim for misrepresentation, but only breach of contract. Id. at 107-08.

¶ 19. In the second case, Mackenzie was an at-will employee whose supervisor told him the company's reorganization would not affect his position grade level. However, the company did later downgrade employees. Mackenzie sued for intentional misrepresentation. Mackenzie, 241 Wis. 2d 700, ¶ 14-15. Following its holding in Tatge, the supreme court stated that "no duty to refrain from misrepresentation exists independently of the performance of the at-will employment contract." Mackenzie, 241 Wis. 2d 700, ¶ 15 (citing Tatge, 219 Wis. 2d at 108). Thus, like Tatge, Mackenzie did not have a claim for misrepresentation.

¶ 20. Fleming contends the facts here are similar to those in Tatge and Mackenzie and therefore Betterman's claim for intentional misrepresentation should be dismissed. However, there is an important distinction between this case and Tatge and Mackenzie. In those cases, the misrepresentations were made while Tatge and Mackenzie were still employed by their respective employers. The misrepresentations made by Fleming to Betterman were made after he was terminated. In fact, the Tatge court stated that if "no employment relationship existed at the time of the misrepresentations, any duty to refrain from misrepresentation must have existed independently from the performance of [the] employment contract." Tatge, 219 Wis. 2d at 109. Consequently, the rule barring intentional misrepresentation claims where there is an at-will contract does not apply when there is no employment relationship.

¶ 21. Hartwig v. Bitter, 29 Wis. 2d 653, 139 N.W.2d 644 (1966), a case cited in Tatge, is instructive. There, an employer made misrepresentations in order to induce prospective employees to work for the employer. Id. at 655. The supreme court allowed an intentional misrepresentation claim because no employment relationship existed at the time of the misrepresentations. Id. at 658; Tatge, 219 Wis. 2d at 109. Here, Betterman was terminated on August 21, 1997. After that time, when Betterman called about his 401(k), Morrison assured him he was not terminated. Further, Morrison implied. Betterman was still employed at Fleming when she asked Betterman for a doctor's authorization for him to return to work.

¶ 22. Other employees also assured Betterman he would have a job at Fleming. Sorci, his supervisor, assured him he was still employed, as did Flemmen, the general manager. Fleming argues Betterman cannot prove exactly when these conversations took place, or even that they took place at all. However, Betterman testified that he visited Fleming several times throughout 1997 and 1998. The jury could therefore conclude that Sorci's and Flemmen's statements occurred after August 21, 1997. Whether and when the statements took place was a credibility determination. Meurer, 90 Wis. 2d at 450.

¶ 23. Fleming argues, however, that even if Bet-terman does have a claim for intentional misrepresentation, the evidence does not support the jury's verdict. Three elements are necessary to prove intentional misrepresentation: (1) the statement of fact must be false; (2) the statement must be made with the intent to defraud and for the purpose of inducing the other party to act; and (3) the other party must rely on the false statement to his or her detriment. First Credit Corp. v. Myricks, 41 Wis. 2d 146, 149, 163 N.W.2d 1 (1968).

¶ 24. Fleming's arguments essentially ignore our standard of review and argue credibility and weight determinations. Fleming first contends there is no credible evidence of specific false statements. It argues the statements by Morrison and others were merely broad and vague assurances. However, Fleming terminated Betterman on August 21, 1997. After that time, Betterman spoke to Morrison about returning to work and Morrison never told him he was terminated. In fact, Morrison specifically told Betterman that he was not terminated when he asked about his 401(k). Morrison testified that she knew he was terminated but did not tell him because she did not think it was her responsibility to do so. Thus, what Morrison told Bet-terman was false. Similarly, Sorci's and Flemmen's statements were false.

¶ 25. Second, Fleming argues there is no evidence of intent to deceive Betterman. Intent requires that the statement was untrue or made with reckless disregard as to whether it was true. See Ollerman v. O'Rourke Co., 94 Wis. 2d 17, 25, 288 N.W.2d 95 (1980). Fleming maintains Morrison and other supervisors were merely concerned with Betterman's well-being. Fleming therefore claims no statements were made with any intent to deceive Betterman. However, Morrison and others knew Betterman was terminated and yet assured him he was not. Because they knew the statements were untrue, intent may be inferred. See Polley v. Boehck Equip. Co., 273 Wis. 432, 436, 78 N.W.2d 797 (1956).

¶ 26. Third, Fleming argues there is no evidence that Betterman detrimentally relied on the misstatements. It contends that Betterman never turned down other employment based on these statements. Fleming maintains Betterman's only reliance was tailoring his therapy toward returning to work and remodeling the deck on his home. Fleming argues Betterman would have worked to improve his mental health regardless of the misstatements. Further, Betterman's health care providers advised him to do home improvement projects as therapy. Therefore, to the extent Betterman relied on the misstatements, Fleming concludes the reliance was not detrimental.

¶ 27. However, the sole focus of Betterman's treatment was geared toward returning to work. As the trial court noted:

There is sufficient evidence from which a jury could conclude that he relied upon returning to work in the manner in which he sought treatment and in how he dealt with his family and friends and made plans. To suggest that he would have done the same things regardless of whether he knew he was terminated or not is not persuasive in light of this record.

The jury also found detrimental reliance on Betterman's remodeling of his deck. Betterman testified he spent the money on the project in reliance on Fleming's assertions that he had a job waiting for him. The jury believed Betterman's testimony and concluded it was likely he would not have incurred the project's cost had he known he was terminated.

Promissory estoppel

¶ 28. Fleming also argues that Betterman's promissory estoppel claim cannot stand. However, the circuit court did not assess damages on the promissory estop-pel claim and, therefore, we do not address it.

Compensatory damages

¶ 29. Fleming argues the court improperly awarded compensatory damages. When reviewing a damage award, we must consider evidence most favorable to the award, and sustain it if there is any credible evidence to support it. Roach v. Keane, 73 Wis. 2d 524, 539, 243 N.W.2d 508 (1976).

¶ 30. The measure of damages for intentional misrepresentation is the benefit of the bargain. Skrupky v. Elbert, 189 Wis. 2d 31, 47, 526 N.W.2d 264 (Ct. App. 1994); Lundin v. Shimanski, 124 Wis. 2d 175, 195, 368 N.W.2d 676 (1985). Under the benefit of the bargain rule, a plaintiff is entitled to damages equivalent to what the plaintiff would have received if the representation had been true. Skrupky, 189 Wis. 2d at 47.

¶ 31. Fleming argues that the misrepresentation occurred in November 1997 when Betterman spoke to Morrison about his 401(k) and Morrison failed to tell Betterman he was terminated. Yet, the court awarded damages for lost wages beginning not in November 1997, but in May 1998. Fleming maintains that the damages are not related to the November 1997 misrepresentation. However, if the representation had been true, Betterman would have begun working again in May 1998, which is when Dr. Halverson authorized his return to work.

¶ 32. Fleming argues, however, that Betterman was not able to return to work. Fleming contends none of Betterman's doctors testified that Betterman was able to return to his former position. Again, Fleming is simply disputing the evidence. Dr. Halverson specifically released him to work, though with limitations. She also testified that Betterman could have returned to his previous job "if the expectations on him had been clearer."

¶ 33. Further, Fleming argues Betterman never pursued alternate employment when he realized he was terminated. The court recognized this when it made its compensation award, stating, "[Betterman's] job search efforts in January and February of 1999 were minimal at best and were not substantial until finding part-time work with [the grocery store]. . . . [H]is job efforts during this period of time were not reasonable." The court therefore reduced the wage loss calculation by $10,000. Thus, there is sufficient evidence to support the court's award for wage loss.

¶ 34. Next, Fleming argues Betterman's wage loss must be offset by the amount he received in long-term disability payments. This argument requires examination of the collateral source rule. Under the rule, a plaintiffs recovery cannot be reduced by payments the plaintiff receives from other sources. Koffman v. Leichtfuss, 2001 WI 111, ¶ 29, 246 Wis. 2d 31, 630 N.W.2d 201. The collateral source rule was developed not to provide the injured party with a windfall, but instead to prevent tortfeasors from escaping their obligations to compensate an injured party merely because a collateral source also compensated the injured party. Id., ¶ 29 (citing Ellsworth v. Sehelbrock, 2000 WI 63, ¶ 7, 235 Wis. 2d 678, 611 N.W.2d 764). In Ellsworth, 235 Wis. 2d 678, ¶ 7, the supreme court explained that a tortfeasor who is legally responsible for a plaintiffs damages is not relieved of that obligation simply because the plaintiff had the foresight to arrange for benefits from a collateral source. We therefore must determine whether the collateral source rule applies in this case.

¶ 35. Fleming argues the collateral source rule does not apply here because Betterman's long-term disability benefits were in effect paid by Fleming. Fleming asserts that although it had no duty to do so, it paid 100% of the cost of maintaining the disability policy through MetLife.

¶ 36. However, our supreme court has stated that the collateral source rule applies to benefits earned by employees as part of their compensation. Salveson v. Douglas County, 2001 WI 100, ¶ 56, 245 Wis. 2d 497, 630 N.W.2d 182. Here, the circuit court found that the right to disability payments was "part of an overall benefits package which was part of [the plaintiffs] salary which was intended to attract qualified people to this position."

¶ 37. The seventh circuit made a similar ruling in EEOC v. O'Grady, 857 F.2d 383 (7th Cir. 1988), a case dealing with pension benefits, which Salveson cites. The seventh circuit stated: "the pension benefits may be viewed as earned by the claimants and therefore not paid by the employer at all. Like an insurance policy provided by an employer, the pension benefits here were part of the claimants' compensation." Id. at 391 (citing In re Air Crash Disaster, 803 F.2d 304, 308 (7th Cir. 1986) ("[insurance was as much a part of the compensation [the former employee] received from his employer as were his salary, fringe benefits, and pension benefits.").

¶ 38. Here, the disability benefits were part of Betterman's compensation. As the circuit court stated, the benefit was "part of an overall benefit package which was part of his salary which was intended to attract qualified people to this position." Thus, the fact that Fleming paid the premium on the MetLife disability policy is only important insofar as it represented part of Betterman's compensation.

¶ 39. Finally, Fleming argues the court improperly awarded damages for lost investment income and reduced social security benefits. We must sustain a damages award if there is any credible evidence that under any reasonable view supports it and removes the issue from the realm of conjecture. Kersten v. H.C. Frange Co., 186 Wis. 2d 49, 59, 520 N.W.2d 99 (Ct. App. 1994).

¶ 40. The court awarded Betterman $34,433 for lost investment income because Betterman was unable to make voluntary investments into his 401(k), and moreover, was forced to withdraw $1,500 a month from his 401(k). Fleming contends that at the time of the misrepresentation by Morrison regarding his 401(k), Betterman had already made the decision to withdraw funds. Therefore, Fleming argues, the award for lost investment income did not result from Fleming's misrepresentations. Further, Fleming argues that the award is speculative because there is no evidence to support a 10% rate of return.

¶ 41. However, had Betterman been able to return to work at Fleming, he would have continued investing in his 401(k) and received a return on that investment. Therefore, the lost income was a direct result of Fleming's misrepresentations. Additionally, the court's use of a 10% rate of return was appropriate. The court has discretion to fix a reasonable rate of return. Hawes v. Germantown Mut. Ins. Co., 103 Wis. 2d 524, 532-33, 309 N.W.2d 356 (Ct. App. 1981).

¶ 42. The court also awarded Betterman $12,445 for estimated loss of social security benefit payments because Betterman began receiving the payments at age sixty-two rather than sixty-five. Fleming again maintains Betterman's decision was not a result of any misrepresentation by Fleming. However, if Betterman had returned to work at Fleming, he would not have had to take his social security payments early. This was again a result of Fleming's misrepresentations that Betterman had a job waiting for him.

Punitive damages

¶ 43. Fleming argues the award of punitive damages was excessive. An award of punitive damages is within a jury's discretion. Jacque v. Steenberg Homes, 209 Wis. 2d 605, 626, 563 N.W.2d 154 (1997). Nevertheless, a trial court may reduce punitive damages if the award is so clearly excessive as to indicate that the award was the product of passion or prejudice. Id. On review, we construe the evidence most favorably to the jury's verdict. Durham v. Pekrul, 104 Wis. 2d 339, 349, 311 N.W.2d 615 (1981).

¶ 44. When determining whether an award of punitive damages is excessive, we must consider the reasonableness of the award in light of the case facts. Management Computer Servs. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 194, 557 N.W.2d 67 (1996). Factors a court looks at are: "(1) evil intent deserving of punishment or of something in the nature of special ill-will; or (2) wanton disregard of duty; or (3) gross or outrageous conduct." Trinity Evangelical Church v. Tower Ins. Co., 2003 WI 46, ¶ 45, 261 Wis. 2d 333, 661 N.W.2d 789.

¶ 45. Fleming first argues that the misrepresentations were not made with evil intent. It maintains it did not act unlawfully, as evidenced by the jury's verdict rejecting Betterman's discrimination claim. Further, Fleming argues Betterman did not establish it disregarded a known duty, nor that its conduct was gross or outrageous. However, Morrison and others assured Betterman he would have a job when he got well, even though they knew he had been terminated. There were multiple opportunities for someone to tell Betterman the truth, yet no one did. The jury could have reasonably found that, under the circumstances, Fleming's representations were outrageous.

¶ 46. Second, Fleming contends Betterman suffered no demonstrable harm from the misrepresentations and therefore the punitive damages are excessive compared to compensatory damages. While there must be a reasonable relationship between the amount of compensatory and punitive damages, there is no multiplier or fixed ratio of compensatory to punitive damages. Management Computer Servs., 206 Wis. 2d at 194. Betterman was awarded $255,666 compensatory damages and $300,000 punitive damages. This is a ratio of 1.17:1. The United States Supreme Court has stated that single digit multipliers are most appropriate. State Farm Mut. Auto. Ins. Co v. Campbell, 538 U.S. 408 (2003). However, the Wisconsin Supreme Court has recently upheld a ratio as high as 7:1. See Trinity Evangelical Church, 2003 WI 46, ¶ 65. Betterman's damage award is not excessive.

¶ 47. Finally, Fleming argues the jury's award of punitive damages could only have been a result of passion after the jury heard the circumstances surrounding Betterman's breakdown. Fleming contends the jury merely felt sorry for him and therefore awarded punitive damages. There is no support in the record for this bald assertion. Fleming's argument is the product of its own imagination rather than any record evidence.

By the Court. — Judgment affirmed.

       Betterman's supervisors were located in Wisconsin, Oregon, Oklahoma, and Minnesota.

       Betterman had successfully appealed MetLife's decision that his long-term disability benefits terminated on May 21, 1998. Thus, his benefits were extended from May 21, 1998, through August 22, 1999.

       Sorci testified that his conversation with Betterman took place before Betterman was terminated. Flemmen denied having the conversation Betterman testified they had regarding who Betterman would report to when he returned to work.

       Instead of making plans for retirement, Betterman did work-related therapy, including occupational therapy and participating in groups directed toward setting goals, reducing stress, and learning assertiveness. Betterman, his family, his friends, and his therapist all stated Betterman specifically directed his therapy towards returning to work.

       The court did not award damages for promissory estoppel because they would have been the same as for intentional misrepresentation and therefore duplicative.


author: CANE, C.J.

text:
    In re the Commitment of Jesse J. Madison: State of Wisconsin, Petitioner-Respondent, v. Jesse J. Madison, Respondent-Appellant.

    Court of Appeals

      No. 02-3099.

      Submitted on briefs December 23, 2003.

    Decided February 24, 2004.

    2004 WI App 46
    (Also reported in 678 N.W.2d 607.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Gary A. Freyherg, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 4-20-04.

   CANE, C.J.

¶ 1. Jesse Madison appeals from a judgment finding he is a sexually violent person, from a commitment order, and from an order denying motions after verdict. Madison argues the trial court erred by giving the jury a general verdict form because he has a statutory and constitutional right to a special verdict form. We affirm the judgment and orders.

Background

¶ 2. The State filed a petition to detain Madison on the ground that he was a sexually violent person, as defined in Wis. Stat. ch. 980. The matter was set for trial. At the jury instructions conference, Madison requested the court to submit a special verdict to the jury, such as those used in Wis. Stat. ch. 51 commitments. The trial court denied the request and submitted the standard general verdict for ch. 980 cases contained in Wis JI — Criminal 2503. The jury later found Madison was a sexually violent person and Madison was committed. This appeal follows the trial court's denial of motions after verdict.

Discussion

¶ 3. Madison first claims that he has a statutory right to a special verdict under Wis. Stat. § 805.12(1). See State v. Rachel, 224 Wis. 2d 571, 575, 591 N.W.2d 920 (Ct. App. 1999) (Wis. Stat. ch. 980 proceedings are civil in nature and, therefore, the rules of civil procedure apply). Section 805.12(1) states, "Unless it orders otherwise, the court shall direct the jury to return a special verdict." Because special verdicts are "the rule and not the exception" in civil cases, Madison argues the trial court erred by giving a general verdict. See Milwaukee & Suburban Transp. Corp. v. Milwaukee County, 82 Wis. 2d 420, 450, 263 N.W.2d 503 (1978). We disagree.

¶ 4. In A.E. v. State, 163 Wis. 2d 270, 275, 471 N.W.2d 519 (Ct. App. 1991), we held that the opening phrase of Wis. Stat. § 805.12(1), "Unless it orders otherwise," gives the trial court broad discretion to determine the form of the verdict and that it is not per se improper to submit a general verdict. Thus, although the statutes suggest the trial court-submit a special verdict to the jury, it remains within the trial court's discretion whether to submit a special or general verdict. Therefore, we reject Madison's argument that, under § 805.12(1), the trial court must submit a special verdict.

¶ 5. Alternatively, Madison argues that he has a constitutional right, on equal protections grounds, to a special verdict. See Wis. Const, art. I, § 1. This equal protection argument stems from an alleged disparate application of special verdicts, under Wis. Stat. § 805.12(1), in Wis. Stat. chs. 51 and 980 cases. Persons committed under ch. 980 and those committed under ch. 51 are similarly situated for an equal protection analysis. State v. Post, 197 Wis. 2d 279, 318-19, 541 N.W.2d 115 (1995).

¶ 6. Madison notes that while Wisconsin's jury instructions provide a general verdict for a Wis. Stat. ch. 980 commitment, Wis JI — Criminal 2503, a special verdict is provided for Wis. Stat. ch. 51 commitments, Wis JI — Civil 7050. From this fact alone, Madison claims ch. 980 respondents are "systematically de-priv[ed] of special verdicts" and that this constitutes an equal protection violation. Furthermore, because we previously observed that "it is much more difficult to commit a person under [chapter] 980 than it is to commit someone under chapter 51," State v. Williams, 2001 WI App 263, ¶ 14, 249 Wis. 2d 1, 637 N.W.2d 791, Madison claims that it is inconsistent to submit general verdicts in ch. 980 cases because they make it easier for a jury to return a verdict in favor of commitment. Therefore, given this disparity, Madison argues he was denied equal protection.

¶ 7. We reject the equal protection argument for two reasons. First, Madison has not provided any evidence of his allegation that ch. 980 respondents are routinely deprived of special verdicts. Second, he has not provided any evidence or authority to support the otherwise speculative proposition that general verdicts are more likely to result in commitments than special verdicts.

¶ 8. First, Madison has not established a systematic deprivation of special verdicts for persons in Wis. Stat. ch. 980 proceedings as compared to persons in Wis. Stat. ch. 51 proceedings. At most, he has shown that the criminal and civil jury instruction committees merely recommend different verdict forms (a general verdict for ch. 980 and a special verdict for ch. 51). This, however, is not evidence of a systematic deprivation. If anything, there is a suggestion in the record to the contrary. During the jury instruction conference, the trial court asked Madison's attorney if other courts had used special verdicts in ch. 980 cases. Madison's attorney answered that they had.

¶ 9. Second, Madison has not established the premise of his equal protection argument: that a general verdict makes it easier to return a verdict in favor of commitment. Whether the trial court uses a general verdict or a special verdict, the jury is instructed that the State must prove all the elements. The jury is presumed to follow the court's instructions. See State v. Opalewski, 2002 WI App 145, ¶ 31, 256 Wis. 2d 110, 647 N.W.2d 331. Madison may believe that a special verdict is more favorable to him, but he has not proved it or provided authority for purposes of his constitutional argument.

¶ 10. As an observation, our holding should not be read to conclude a respondent in a Wis. Stat. ch. 980 commitment proceeding should never have a special verdict. In fact, Wis. Stat. § 805.12(1) suggests that special verdicts are to be submitted to the jury unless the trial court in the exercise of its discretion decides otherwise. Instead, we narrowly conclude that Madison has failed to establish that ch. 980 respondents are routinely deprived of special verdicts and that general verdicts are more likely to result in commitments.

By the Court. — Judgment and orders affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       In his reply brief, Madison argues the trial court failed to exercise its discretion in determining the form of the verdict. We will not address arguments raised for the first time in reply briefs. State v. Chu, 2002 WI App 98, ¶ 42 n.5, 253 Wis. 2d 666, 643 N.W.2d 878.

       In State v. Post, 197 Wis. 2d 279, 328-29, 541 N.W.2d 115 (1995), the supreme court concluded there was a denial of equal protection where Wis. Stat. ch. 51 respondents had a right to a jury trial at a discharge hearing while Wis. Stat. ch. 980 respondents did not.


author: HOOVER, EJ.

text:
    Susan Hatleberg, Plaintiff-Respondent, v. Norwest Bank Wisconsin, n/k/a Wells Fargo Bank, Defendants-Appellants.

    Court of Appeals

      No. 03-0040.

      Submitted on briefs November 3, 2003.

    Decided February 24, 2004.

    2004 WI App 48
    (Also reported in 678 N.W.2d 302.)
    Research References

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Dennis M. Sullivan and Herrick, Hart, Duchemin, Spaeth, Sullivan & Schuma-cher, S.C. of Eau Claire.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Paul J. Gossens, S.C. of Wauwatosa.
    Before Cane, C.J., Hoover, EJ., and Schudson, J.

       Petition to review granted 8-2-04.

   HOOVER, EJ.

¶ 1. Wells Fargo Bank appeals a judgment for damages for breaching its fiduciary duty while managing an irrevocable trust set up by Fhyllis Erickson. Because of an error in the trust document, Erickson's contributions were included in her estate at her death, requiring the estate to pay nearly $174,000 in additional taxes. Wells Fargo alleges several errors, primarily that it had no duty to notify Erickson of the error in the trust document. We disagree with all of Wells Fargo's contentions and affirm the judgment.

Background

¶ 2. Dale Sevig was the senior trust officer for Wells Fargo, which has previously been known by other names. Sevig contacted Erickson's husband, Ted, in September 1984 "to hopefully help you with your estate and investment planning." Sevig represented that he had knowledge on avoiding estate taxes and recommended a plan to Ted that would help reduce those taxes. Before Ted could finalize anything, he died in March 1985. Sevig then wrote to Erickson to express his condolences and to suggest he could help Erickson finish the estate planning Ted had started.

¶ 3. Sevig recommended an irrevocable trust that would take advantage of an annual gift exclusion of $10,000 per recipient to reduce Erickson's eventual estate tax. He recommended an attorney from an office in the bank's building to draft the trust document, but Erickson insisted on having her neighbor, Richard Duplessie, draft the document. Sevig knew Duplessie was a lawyer, but also that he was not an expert on trusts.

¶ 4. Duplessie drafted the trust document, apparently modeling it after one in a form book in his office. While the trust was intended to be one way for Erickson to reduce her estate tax burden, it needed to provide the recipients with a present interest in Erickson's gift for the money to qualify for the tax exemption. See 26 U.S.C. § 2503(b)(1) (2002). This is normally accomplished through Crummey provisions included in the trust, although Erickson's trust contained no such language. See Crummey v. Commissioner of Internal Revenue, 397 F.2d 82 (9th Cir. 1968).

¶ 5. Erickson began contributing to the trust in 1985 and, by the time of her death in 1998, she had deposited a total of $440,000. In 1988, however, Wells Fargo became concerned by the trust's lack of Crummey provisions. Sevig sent a letter to Duplessie, containing potential Crummey language and asking Duplessie to modify the trust if possible. Sevig never contacted Erickson or her beneficiaries about the potential problem. Duplessie believed the trust had already been completely funded — that Erickson was not making additional deposits — and therefore no changes could be made. The trust was never amended.

¶ 6. Sevig continued managing Erickson's finances and continued advising her to contribute to the trust, reiterating her gifts to her grandchildren would also be beneficial for estate tax purposes. At one point after 1988, he advised Hatleberg that there was nothing to worry about as far as her mother's trust was concerned. When Erickson died in September 1998, however, Sevig contacted the probate attorney advising that the lack of Crummey provisions in the trust caused him concern about Erickson's estate. Because there were no Crummey provisions, Erickson's estate had to recapture the $440,000 in gifts. As a result, the estate paid an additional $173,644 in taxes.

¶ 7. Hatleberg sued Duplessie, his law firm, Sevig, and Wells Fargo. Hatleberg settled with Duplessie. Following a bench trial, the court found against Wells Fargo. Wells Fargo moved for reconsideration to have liability apportioned. The court determined that Duplessie's law firm was 0% liable, the estate's accounting firm was 0% liable, Wells Fargo was 60% liable, and Duplessie was 40% liable.

¶ 8. An accountant testified that $300,993 would be needed to make the estate whole. This amount, when added to the estate, would be sufficient to (1) cover the additional taxes that would be assessed by counting the judgment in the total estate and (2) leave the estate with the $173,644 it paid in tax because the $440,000 was recaptured. Based on the apportionment of liability, judgment was ultimately entered against Wells Fargo in the amount of $180,559.80 plus costs and interest.

¶ 9. Wells Fargo appeals and argues: The trustee had no duty to review Erickson's trust document for accuracy; the damage award is speculative; the statute of limitations precludes recovery; public policy precludes recovery; and the trial court's determinations are based on insufficient evidence.

Discussion

1. Whether Wells Fargo had a duty to review the trust for accuracy

¶ 10. Whether a legal duty exists and, if so, its scope, are questions of law. Wisconsin Academy of Sciences, Arts & Letters v. First Wis. Nat'l Bank, 142 Wis. 2d 750, 754, 419 N.W.2d 301 (Ct. App. 1987). Generally, a trustee's duties are defined by the trust document. See Saros v. Carlson, 244 Wis. 84, 88, 11 N.W.2d 676 (1943). Wells Fargo contends it had no duty to examine the document for accuracy because the duty of review is not included in the trust document. We disagree. Assuming without deciding that Wells Fargo had no duty originally, it created the duty itself. "Wisconsin has long recognized that liability may be imposed on one who, having no duty to act, gratuitously undertakes to act and does so negligently." Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96, 113, 522 N.W.2d 542 (Ct. App. 1994). At a minimum, when Wells Fargo decided it should notify Duplessie of the missing provisions, it demonstrated an assumed duty of review.

¶ 11. Wells Fargo counters that in any event it could not have warned Erickson by reviewing the trust and opining on its validity because doing so would have amounted to the unauthorized practice of law. See, e.g., Green v. Huntington Nat'l Bank, 212 N.E.2d 585, 587-88 (Ohio 1965) (a bank providing legal advice for estate planning has engaged in the unauthorized practice of law); Doe v. Condon, 532 S.E.2d 879, 882 (S.C. 2000) (a paralegal conducting an estate planning workshop where the paralegal would offer estate planning advice without a supervising attorney would be the unauthorized practice of law). Although Wells Fargo's legal premise is sound, it does not apply to circumstances of this case.

¶ 12. In Wisconsin, an individual engages in the unauthorized practice of law when he or she "for compensation or pecuniary reward gives professional legal advice not incidental to his or her usual or ordinary business . . . ." Wis. Stat. § 757.30(2) (emphasis added). In this particular case, Wells Fargo claimed to have expertise in trusts — that this was its "usual or ordinary business." It would likely know, therefore, as part of that business that Crummey provisions are required when a donor intends to reduce his or her estate tax and, indeed, Sevig's concerns reveal as much. This language requirement would thus be one of the "easily identifiable impediments or pitfalls" about which a donor should be informed. See Wisconsin Acad., 142 Wis. 2d at 757. As part of Wells Fargo's usual or ordinary business, advising of the need for Crummey provisions would not cross the line into the unauthorized practice of law; such advice does not require that the bank or trustee draft the trust, but rather only provide information to the donor in advance.

¶ 13. Still, Wells Fargo implicitly argues that the trial court's finding of fact regarding Erickson's primary intent — reducing her estate taxes — was clearly erroneous because the trust document specifically contains language delaying the beneficiaries' access to the corpus. If the finding were erroneous, Hatleberg's case would no longer be tenable. However, the evidence from both sides amply supports the trial court's finding of Erickson's primary intent. Therefore, we are less concerned with the actual trust document because the issue is not so much what the trust says as what Wells Fargo represented the trust would accomplish.

¶ 14. Wells Fargo further argues that its notification to Duplessie of the error should be sufficient for us to conclude that it fulfilled any duty it assumed. After all, it contends, Duplessie was Erickson's lawyer. However, Wells Fargo ignores the trial court's finding that at the time Wells Fargo notified Duplessie of the error, he no longer had any professional link to Erickson. Sevig testified that he considered Duplessie "out of the loop," and there is no indication Erickson had retained Dup-lessie for anything other than the initial drafting of the trust. Thus, notice to Duplessie was insufficient to notify Erickson of the problem.

¶ 15. While Wells Fargo may have originally had no duty to review the trust for accuracy, it assumed the duty and found an error in the trust. It notified the original drafter, but this was insufficient because Dup-lessie was no longer Erickson's agent in any capacity. Wells Fargo solicited Erickson's business and repeatedly informed her it could use the trust to reduce her future estate taxes. Once Wells Fargo realized the trust was insufficient for that purpose, it was negligent in advising Erickson to continue making deposits and assuring her the trust would reduce her estate taxes.

¶ 16. We do not intend this decision to be construed as placing trustees in the position of lawyers, bound to review documents for particular nuanced problems. Wells Fargo's duties and liabilities result from the peculiar facts of this case — Wells Fargo's solicitation of Erickson, its self-represented expertise in estate planning, and its continued insistence and reassurance that Erickson could continue gifting to the trust to reduce her taxes, even after it was aware of a problem that had not been remedied.

2. Whether the damage award is proper

¶ 17. Whether the trial court applied a proper legal standard in determining damages is a question of law that we review de novo. Jauquet Lumber Co. v. Kolbe & Kolbe Millwork Co., 164 Wis. 2d 689, 703, 476 N.W.2d 305 (Ct. App. 1991): The trial court's findings of fact regarding damages will not be upset by this court unless clearly erroneous. Id.

¶ 18. We note first that the estate had Elisabeth Barnes, a certified public accountant, calculate the damages. Barnes had prepared the estate's tax return. She concluded that if the estate won a judgment, it would have to file an amended tax return to reflect the amount as an asset. However, after paying the taxes, there would have to be a remainder from the judgment of $173,644, the amount paid out in taxes in the first place. Based on this information, Barnes calculated the amount a judgment would have to be to both settle the new tax liability and return the first tax payment.

¶ 19. Wells Fargo does not take issue with Barnes' calculations. Rather, it raises several legal arguments, including the binding effect of an estate closing letter on the IRS, a statute of limitations defense against the IRS, and the speculative nature of the award. With regard to speculation, we conclude that the damages in this case are not based on the mere possibility of future harm but rather are based on an articulable application of the tax laws to arrive at a concrete sum.

3. Whether the statute of limitations precludes recovery

¶ 20. The statute of limitations on actions based on injury to property is six years. Wis. Stat. § 893.52. Wells Fargo argues that it began to run May 4, 1988, when it notified Duplessie of the lack of Crummey provisions, because an attorney is an agent for his or her client and notice to an agent can be imputed to the principal. This argument, however, hinges on the proposition that Duplessie remained Erickson's agent. The trial court explicitly found there was no ongoing agency between Duplessie and Erickson, based in part on Sevig's testimony that Duplessie was "out of the loop." This finding is not clearly erroneous and will not be disturbed. Wis. Stat. § 805.17(2). The first indication either Erickson or the estate had regarding the tax consequences was when Erickson died on November 16, 1998, and Wells Fargo contacted the probate attorney. Thus, the statute of limitations would not expire until November 16, 2004.

4. Whether public policy precludes recovery

¶ 21. Public policy considerations sometimes preclude liability. Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis. 2d 804, 817-18, 416 N.W.2d 906 (Ct. App. 1987). Policy reasons for not imposing liability despite finding negligence are:

(1) the injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tortfeasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden on the negligent tortfeasor; or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance for recovery would enter a field that has no sensible or just stopping point.

Id. These considerations are addressed on a case-by-case basis.

¶ 22. We conclude that the six criteria above simply do not fit the facts because Wells Fargo held itself out as having special expertise in estate and financial planning, and specifically having knowledge on how to reduce estate taxes. It solicited the Ericksons' business. It suggested the irrevocable trust as the vehicle for reducing the estate taxes. When it discovered there were no Crummey provisions, it knew that the estate taxes would not be reduced as planned. Indeed, Sevig notified the probate attorney of the problem almost immediately after Erickson's death. Wells Fargo, however, never notified Erickson of this error but instead assured her all was well with the trust and continued to advise her to make gifts into the trust expressly to reduce her estate taxes. This therefore is not the unusual and extreme situation where a causally negligent tortfeasor should be relieved of liability.

5. Whether the trial court's determinations are based on sufficient evidence

¶ 23. Wells Fargo argues that there was insufficient evidence for the trial court to assign any liability. It disputes the trial court's findings that Wells Fargo recommended the estate plan, had expertise in preparing trusts, recommended the trust to reduce estate taxes, and failed to take adequate action to correct the drafting error. Factual findings will not be set aside unless they are clearly erroneous. Wis. Stat. § 805.17(2). We do not consider evidence that might support contrary findings, but search the record for any evidence to support the trial court's actual findings. In re Estate of Becker, 76 Wis. 2d 336, 347, 251 N.W.2d 431 (1977).

¶ 24. Wells Fargo contends that there is no evidence it suggested "this" estate plan to Erickson. However, Sevig's letters to Erickson and her husband, as well as Sevig's deposition testimony, demonstrate that in some incarnation, an estate plan involving an irrevocable trust to reduce estate taxes was discussed. Wells Fargo cites no rule requiring written estate planning documents be word-for-word recreations of preliminary discussions in order to prove that it marketed an estate plan calculated to reduce estate taxes.

¶ 25. Wells Fargo claims the evidence shows it only had "expertise in the area of trust administration, which is far different than preparing an irrevocable trust to avoid estate taxes." The issue, however, is not Wells Fargo's actual area of expertise, but rather its claimed area. Moreover, the fact that Sevig realized the missing Crummey provisions were necessary to avoid the estate taxes suggests some knowledge of trust preparation.

¶ 26. Wells Fargo argues that the portion of the evidence the trial court relied on to conclude Sevig recommended the trust for estate tax reduction indicates this information was conveyed after the trust had been drafted. Again, Sevig's letters establish otherwise.

¶ 27. Finally, Wells Fargo asserts that because it notified Duplessie and provided language to fix the error, the court erred by finding that the trustee failed to take any action once it was aware of the problem. First, this argument contradicts the claim that Wells Fargo only knew how to administer trusts, not prepare them. Second, Sevig knew that Duplessie was "out of the loop." Finally, despite the error, the hank never notified Erickson of any difficulties and instead continued to encourage her to contribute to the trust. While Wells Fargo technically took a step to remedy the problem, it took no meaningful action, and therefore Hatleberg, as personal representative, incurred damages.

By the Court. — Judgment affirmed.

       Susan Hatleberg is Erickson's daughter and personal representative of Erickson's estate.

       "Wells Fargo" refers to the bank, its predecessors in interest, and Sevig working on the bank's behalf.

       The annual gift exclusion was $10,000 at all relevant times. Sevig also recommended a revocable trust that was used to manage Erickson's personal finances, but no issue regarding that trust is before us.

       There was evidence that Erickson wanted the trust to fund her grandchildren's education and therefore she did not want them to have immediate access to the trust account. Thus, Wells Fargo contends the trial court erred by concluding that reducing estate taxes was Erickson's primary goal. However, delaying the beneficiaries' access is incompatible with reducing estate taxes, which is what Wells Fargo stated the trust could be used for. The trial court's conclusion was a factual determination based on more than ample evidence in the record. See Wis. Stat. § 805.17(2). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       26 U.S.C. § 2503(b)(1) (2002) reads in relevant part: "In the case of gifts (other than gifts of future interests in property) made to any person by the donor during the calendar year, the first $10,000 of such gifts to such person shall not... be included in the total amount of gifts made during the year." (Emphasis added.)

       In Crummey v. Commissioner of Internal Revenue, 397 F.2d 82 (9th Cir. 1968), the court discussed the present interest requirement of 26 U.S.C. § 2503(b)(1). It concluded that in order to create a present interest in a gift, "all that is necessary is to find that the [beneficiary's] demand [for distribution of the corpus] could not be resisted. We interpret that to mean legally resisted .. .." Id. at 88. Thus, a "Crummey provision" is wording used to effectuate the beneficiary's present interest in a gift. Beneficiaries are sometimes sent Crummey notices. A notice identifies the beneficiary's present interest and right to make a demand even if the provision has been omitted from the trust document. There was apparently a dispute over whether Erickson's grandchildren had received notices, but the issue is not discussed on appeal.

       The law firm had been named because another attorney at the firm, John Wilcox, had apparently reviewed the trust document briefly. The court held that Wilcox himself had no liability. Also, the accounting firm was not named in the complaint, but during the trial a dispute arose over the accuracy of its work in preparing Erickson's annual income tax returns and the estate tax return.

       We further note that Wells Fargo represented that it had special knowledge in estate planning and estate tax reduction. Consistent with this representation, Wells Fargo would have been wise to verify whether the trust document adequately reflected the bank's promises.

       Indeed, we note that many professionals, called upon to give what might be considered legal advice, do not necessarily violate Wis. Stat. § 757.30(2). Accountants, for instance, might give advice relating to tax laws when preparing income tax returns. Real estate brokers prepare documents that have legal effect. In neither case would we normally consider the individuals to be engaged in the unauthorized practice of law.

       Barnes also made calculations regarding interest penalties the IRS would charge, but the trial court decided they were too speculative because Barnes could not specify exactly what interest rate the IRS was likely to use from quarter to quarter.

       Wells Fargo claims Barnes' statement that there would be an amended tax return was made without citation to legal authority. However, Wells Fargo pointed neither us nor the trial court to any contrary evidence, and the trial court was therefore entitled to rely accept Barnes' statement.

       It appears that Wells Fargo's remaining arguments were not brought to the trial court's attention. The trial court's decision only addresses the accuracy of Barnes' calculations. For that reason, the record fails to suggest that Wells Fargo first raised these arguments in the trial court. De novo review notwithstanding, we may disregard arguments made for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). Moreover, even if they were presented to the trial court, Wells Fargo provides no record citations to where these issues were discussed with the court, and we will not search the record to find support for a party's argument. See Grothe v. Valley Coatings, Inc., 2000 WI App 240, ¶ 6, 239 Wis. 2d 406, 620 N.W.2d 463.

       Wells Fargo also argues that we should apply the "intervening or superceding cause" doctrine based on "the negligence of the attorneys and accountants advising Mrs. Erickson." We disagree because even if those individuals were somehow also negligent, Wells Fargo simultaneously continued advising Erickson to contribute to the trust, reassuring her everything was in order.

       Sevig testified that he knew what language should be included when preparing an irrevocable trust to reduce estate taxes. Wells Fargo also argued that it could not he considered an expert on the language of trusts because it could not actually draft trusts without practicing law. Whether the actual drafting constitutes practicing law, this argument is suspect in light of Sevig's preparation of additional language to send to Duplessie.