928 N.W.2d 641
Wis. Ct. App.2019Background
- Camper Corral purchased garage/inventory insurance through Alderman; earlier policies had $500 per-unit hail deductibles and claims in 2011 and 2012.
- After two paid hail claims, General Casualty non-renewed Camper Corral; Alderman procured a Western Heritage policy for 2013–14 that Camper Corral later believed would have a $1,000 per-unit hail deductible capped at $5,000 aggregate.
- Camper Corral discovered after a September 3, 2014 hailstorm that the 2013–14 policy in effect actually had a $5,000 per-unit hail deductible (no aggregate cap), producing a $125,000 deductible for 25 damaged units; recovery was reduced accordingly.
- Camper Corral sued Alderman for negligence, seeking the difference between the $125,000 deductible and the $5,000 aggregate it claimed should have applied.
- At trial Alderman moved for a directed verdict arguing Camper Corral failed to prove causation (no evidence it could have obtained the lower-deductible policy absent Alderman’s conduct); the court granted the directed verdict and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff needed to prove that, absent the agent's negligence, a lower-deductible policy actually could have been obtained | Camper Corral: only required to show such policies were "generally available" in the marketplace | Alderman: plaintiff must prove it would have been able to obtain the desired policy absent the agent's negligence | Court: plaintiff must prove that, but for the agent's negligence, it could have obtained a policy with the lower deductible (causation not shown) |
| Whether causation was established | Camper Corral: its damages flowed from Alderman obtaining the wrong policy terms | Alderman: no evidence that alternative coverage with lower deductible was obtainable given prior claims | Court: no credible evidence showed availability of the lower-deductible policy, so causation element failed |
| Whether expert testimony on standard of care was required | Camper Corral: contested but did not press alternative theories at trial | Alderman: argued plaintiff lacked expert proof of standard of care | Court: did not decide because it affirmed on causation grounds (no need to reach expert issue) |
| Whether plaintiff could proceed on contract or misrepresentation theories not pled at trial | Camper Corral: argued on appeal benefit-of-the-bargain damages would apply without proof of alternative availability | Alderman: these theories were not pled or tried | Court: plaintiff forfeited these theories by failing to raise them below; court declined to consider them |
Key Cases Cited
- Melin v. Johnson, 387 N.W.2d 230 (Minn. Ct. App. 1986) (insurer/agent negligence claim fails where no evidence other comparable coverage was available)
- Wallace v. Metropolitan Life Ins. Co., 248 N.W. 435 (Wis. 1933) (plaintiff must show other insurance could have been obtained to prove damages from delayed rejection)
- Smither v. United Benefit Life Ins. Co., 190 P.2d 183 (Kan. 1948) (recovery requires proof that earlier notice would have allowed obtaining other insurance)