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Insurance Claim Compensatory Damages.

Byline: Derek Hawkins

WI Court of Appeals District III

Case Name: Joan A. Kelly, et al. v. Amanda E. Berg, et al.

Case No.: 2017AP2033

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Insurance Claim Compensatory Damages

This case is before us for a second time. On June 16, 2011, Joan Kelly and her dog were attacked and seriously injured by a pit bull owned by Amanda Berg and Adam Finkler. Kelly sued Finkler, Berg, and Berg's homeowner's insurer, Manitowoc Mutual Insurance Company, and a jury awarded Kelly compensatory damages for her personal injuries. Berg and Manitowoc (collectively, Berg) appealed, arguing the circuit court erroneously exercised its discretion by instructing the jury on the common-law emergency doctrine and that the jury's award of damages was excessive. We agreed that the emergency doctrine did not apply to the facts of the case and that the special verdict form was confusing with respect to Kelly's damages for past pain, suffering, and disability. We therefore reversed the judgment against Berg. See Kelly v. Berg, 2015 WI App 69, 2, 365 Wis. 2d 83, 870 N.W.2d 481 (Kelly I).

On remand, the matter proceeded to a second trial, and a jury again awarded Kelly compensatory damages for her personal injuries. The jury also affirmatively answered two special verdict questions that rendered Berg liable for two times the full amount of damages awarded by the jury, pursuant to WIS. STAT. 174.02(1)(b) (2013-14). However, based on public policy concerns, the circuit court granted Berg's motion after the verdict, and it changed the jury's answers to these two questions from "yes" to "no." Thus, the court effectively vacated the jury's award of double damages to Kelly.

Kelly now appeals, arguing the circuit court erred by determining that public policy concerns justified overturning the jury's answers to the two special verdict questions. Berg cross-appeals, arguing the court erred by allowing the two special verdict questions concerning double damages to go to the jury at all, because Kelly abandoned any claim for double damages by not seeking them at her first trial.

We conclude public policy concerns justify the denial of double damages to Kelly. We therefore affirm the judgment and order of the circuit court. Because we affirm the judgment and order of the court in Berg's favor, Berg's cross-appeal is moot.

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Derek A. Hawkins is a trademark corporate counsel attorney for Harley-Davidson, where he concentrates his practice on brand protection and strategy.[/box]

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Publication:Wisconsin Law Journal
Date:Jan 8, 2019
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