¶ 1. Jay Kotecki appeals a judgment, entered on a jury verdict finding him negligent for injuries sustained by John E Kubichek, Sr. Kotecki argues: (1) no credible evidence supports the jury's negligence verdict; (2) public policy precludes Kubichek's recovery; (3) a new trial is necessary in the interest of justice; and (4) Kubichek's claim must be dismissed based on the doctrine of accord and satisfaction. We consider Kotecki's arguments nearly frivolous. We affirm on the appeal.
¶ 2. Kubichek cross-appeals, arguing he is entitled to double costs and interest under Wis. Stat. § 807.01.
BACKGROUND
¶ 3. On November 6, 2004, Kotecki, Kubichek, and Kubichek's son were felling trees on land owned by one of Kubichek's friends. Kotecki and Kubichek both had twenty years' experience felling trees. Additionally, Kotecki had worked full-time as a professional logger for three months in 1993, when he felled between forty and fifty trees per day.
¶ 4. Kotecki was in charge of cutting down the trees, Kubichek cut off the limbs and cut the trunks into logs, and Kubichek's son loaded the logs onto pickup trucks. The last tree they selected to cut was a dead oak between thirty and sixty feet tall. Another tree to the north of the oak had fallen on its own, and its upper branches were entangled in a third tree, leaving the fallen tree suspended at a diagonal. Kotecki decided to cut the oak so that it would fall to the north, hit the diagonally leaning tree, and knock it to the ground. Kotecki believed this maneuver would "kill two birds with one stone," yielding two trees with only one cut.
¶ 5. Koteсki informed Kubichek of his plan. Kubichek told Kotecki he had "never thought of doing anything like that before" and was going to step away. Kubichek walked thirty to forty feet southwest of the oak and leaned against a tree stump. Kotecki never told Kubichek to move farther away or to stand in a different location.
¶ 6. Kotecki began by cutting a notch in the north side of the oak. He then made a back cut on the opposite side of the trunk, which is the cut that causes a tree to fall. While Kotecki testified he was not sure whether he cut all the way through the trunk, both Kubichek and Kubichek's son testified Kotecki cut through the trunk completely. The oak fell onto the diagonally leaning tree, but that tree did not give way as Kotecki had expected. Instead, the leaning tree held firm and acted as a fulcrum, abruptly lifting the butt end of the oak ten to twelve feet into the air. The oak then began to slide down the trunk of the leaning tree. The oak's branches became entangled, causing its butt end to pivot and swing toward Kubichek "like a baseball bat." Kubichek saw the oak coming toward him, but could not get out of the way before it hit him in the chest. Kubichek suffered massive injuries to his spinal cord, rendering him a quadriplegic.
¶ 7. Kubichek sued Kotecki and his homeowner's insurer, Wisconsin Mutual, alleging Kotecki was negligent in felling the oak. In light of Wisconsin Mutual's $300,000 policy limit, Kubichek served сounsel for Wisconsin Mutual and Kotecki with a statutory offer of settlement in the amount of $299,999. Counsel never responded to Kubichek's offer.
¶ 8. At trial, Lee Schauman, a logging safety expert, testified for Kubichek. Schauman stated that the sawyer — the person cutting the tree — is responsible for the safety of people in the vicinity. Schauman opined that Kotecki, as the sawyer, violated at least two logging safety practices when cutting the oak. He testified that these violations caused Kotecki to lose control of the base of the oak, allowing it to move in an unanticipated manner.
¶ 9. Specifically, Schauman testified that Kotecki violated safe logging practices by
[I]t just adds more question marks as to what the tree that you're felling is going to do after it hits the tree that's hung up that [you're] trying to knock it down. Will it get hung up? There’s all kinds of different things that can happen when those two trees come together. Those unpredictable issues just add to the danger of what you're trying to do.
Schauman also testified that Kotecki violated safe logging practices by cutting all the way through the oak. He explained that, in making a back cut, it is crucial not to cut all the way through the tree because "as soon as you cut a tree free from the stump, you've lost control of it and instead of controlling the tree, the tree controls you." The safe method of making a back cut is to leave a certain amount of the wood uncut, creating "hinge wood." The hinge wood gives the sawyer more control over the direction in which the tree falls and over the movement of the tree's butt end. Schauman also testified that, if Kotecki were at all uncertain as to how the oak would react when it struck the second tree, he should have warned Kubichek to move away from the area entirely.
¶ 10. Kotecki did not present any expert testimony to contradict Schauman. He conceded his chainsaw manual warned against felling one tree into another and warned about the necessity of maintaining hinge wood. He admitted that "[t]o avoid falling the tree into another tree would be common sense . ..." He also testified that, given his prior experience in the logging industry, he was aware of the necessity of leaving hinge wood. The jury returned a verdict allocating seventy percent negligence to Kotecki and thirty percent negligence to Kubichek. The jury assessed Kubichek's total damages at $16,102,634.62.
¶ 11. Five days after trial, counsel for Kotecki and Wisconsin Mutual wrote to Kubichek's attorney offering Wisconsin Mutual's policy limit of $300,000 plus costs "for a full and final resolution of this matter including a release of all claims against Jay Kotecki and Wisconsin Mutual[.]" Kubichek's attorney promptly declined the offer. Five days later, Kotecki and Wisconsin Mutual's counsel sent Kubichek's counsel a letter enclosing a $300,000 check. Unlike the earlier settlement offer, the letter did not state that the check represented "a full and final resolution of this matter[.]" Based on previous conversations, Kubichek's counsel believed Wisconsin Mutual was tendering its policy limit to prevent the accrual of further interest on its portion оf the jury verdict. Kubichek's counsel gave the check to his office manager with instructions to deposit it in the firm's trust account. Kubichek's counsel did not examine the back of the check, which stated:
The payee by endorsing this check acknowledges full settlement of claim or account shown on other side and in consideration of this payment hereby fully releases the maker hereof from all liability with respect to such claim or account.
¶ 12. Both Kotecki and Kubichek filed motions after verdict. Kotecki moved the court to change the jury's verdict answers on negligence, arguing there was no credible evidence supporting the jury's findings that Kotecki was nеgligent and that his negligence exceeded Kubichek's. Alternatively, Kotecki asked the court to grant a new trial in the interest of justice. Kubichek moved the court for prejudgment interest and double costs, pursuant to Wis. Stat. § 807.01(3) and (4). The circuit court denied the motions.
DISCUSSION
I. Kotecki's appeal
A. Evidence supporting the jury verdict
¶ 14. When considering a motion to change the jury's answers to verdict questions, we view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence. Richards v. Mendivil,
1. Negligence
¶ 15. Kotecki contends there is no credible evidence that he was negligent. A person is negligent when he or she fails to exercise ordinary care. Alvarado v. Sersch,
¶ 16. Felling the oak into another tree. Kotecki argues thеre is no credible evidence that felling the oak into another tree created a foreseeable, unreasonable risk of harm to Kubichek. However, Schauman testified that it is unsafe to fell one tree into another because of uncertainty regarding how the trees will react. Kotecki's chainsaw manual also warned that felling one tree into another is dangerous. Furthermore, Kotecki himself testified that "[t]o avoid falling the tree into another tree would be common sense[.]" There was ample evidence from which the jury could conclude that Kotecki's decision to fell one tree into another created a foreseеable, unreasonable risk of harm.
¶ 17. Hinge wood. Kotecki next contends there is no credible evidence that cutting through the hinge wood foreseeably created an unreasonable risk of harm to Kubichek. Schauman, the only logging safety expert who testified at trial, testified to the potential dangers that arise when a sawyer fails to leave hinge wood. One such danger is the loss of control over the butt end of the tree. Schauman testified that, once control over the tree's butt end is lost, it becomes very difficult to predict how and where the tree will move.
¶ 18. Warning. Kotecki also claims there is no credible evidence to support a jury finding that Kotecki negligently failed to warn Kubichek. However, Schauman testified that Kotecki, as the sawyer, was responsible for making sure the area was clear before cutting the oak. Kotecki informed Kubichek about his plan to fell the oak into another tree, but hе did not warn Kubichek that he would be cutting through the hinge wood. Nor did he warn Kubichek about what effect cutting through the hinge wood could have, particularly in combination with felling the oak into another tree. Kotecki argues he had no duty to warn because the danger to Kubichek was open and obvious. See Pagel v. Marcus Corp.,
¶ 19. Kubichek's location. Kotеcki argues the harm to Kubichek was not foreseeable because, given Kubichek's location, it was not foreseeable Kubichek would be injured. Kotecki relies on Schauman's testimony that Kubichek was in a "zone of safety." However, Schauman actually testified that Kubichek was in a zone of safety when the cutting started. After Kotecki felled the oak into the leaning tree, cutting all the way through the hinge wood, Kubichek was no longer safe because Kotecki's failure to adhere to safe logging practices made the oak's movement unpredictable.
¶ 20. Freak accident. Kotecki also argues the harm to Kubichek was not foreseeable because Kubiсhek himself referred to the incident as the "freakiest of all freaky accidents." Kotecki takes Kubichek's statement out of context. Kubichek actually testified, "It was the freakiest of all freaky accidents because of what the tree did after it hit the other tree. But it still was an accident that could have been prevented if it was cut properly." Moreover, whether Kubichek and Kotecki actually foresaw the accident is not dispositive. The test for negligence is an objective, reasonable person standard. The operative question is whether a reasonable person would foresee that his or her actions creatе an unreasonable risk of harm. Gritzner,
¶ 21. Apportionment. Kotecki next contends that, even if he was negligent, Kubichek's negligence was greater as a matter of law. Citing Hertelendy v. Agway Insurance Co.,
¶ 22. Kotecki also contends Kubichek's negligence is greater as a matter of law under the "baseball rule." "Essentially, the bаseball rule prohibits a spectator who is injured by a flying baseball
2. Causation
¶ 23. Kotecki contends there is no credible evidence that his failure to leave hinge wood was a substantial factor in causing Kubichek's injuries. See Ollman v. Wisconsin Health Care Liab. Ins. Plan,
B. Public policy
¶ 24. Even if a plaintiff establishes the elements of a negligence claim, a court may nevertheless preclude liability based on public policy considerations if: (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; or (6) allowing recovery would enter a field that has no sensible or just stopping point. Gritzner,
¶ 25. Kotecki contends the second public policy factor applies because Kubichek's injury is out of proportion to Kotecki's negligence. Kotecki argues Kubichek "was in a safe place and got injured by a freak accident." However, as previously discussed, Kubichek was not in a safe place, given Kotecki's decision to cut through the hinge wood. Furthermore, although Kotecki argues this was a "freak accident," it was Kotecki's own failure to follow safe logging practices that dramatically increаsed the risk of harm to Kubichek. The second public policy factor does not apply.
¶ 27. As to the fоurth public policy factor— placing too unreasonable a burden on the tortfeasor— Kotecki contends that "recovery in this case would require future tort defendants to be highly accurate fortune tellers to avoid liability." He argues he could not possibly have protected against Kubichek's injury because he could not know precisely where the oak would fall. Yet, it was Kotecki who created this uncertainty by choosing to fell one tree into another and cutting through the hinge wood. Given Kotecki's negligence, it would not take a highly accurate fortune teller to foresee that the tree would behave dangerously and uncontrollably as it fell.
¶ 28. Lastly, Kotecki argues the sixth public policy factor applies because allowing recovery would enter a field that has no sensible or just stopping point. Kotecki contends, "If Kubichek can recover from Kotecki here .... [fjreak accidents will become reasonably foreseeable events, the occurrence of which will create liability." Again, we do not agree that this accident was unforeseeable. Kotecki knew that felling one tree into another and failing to leave hinge wood can cause a tree to behave in unpredictable and dangerous ways. That is precisely what happened in this case. The sixth public policy factor does not apply.
C. New trial in the interest of justice
¶ 29. Kotecki next claims the circuit court erred by denying a new trial in the interest of justice because the jury's verdict is contrary to the great weight and clear preponderance of the evidence. See Krolikowski v. Chicago & NW Transp. Co.,
¶ 30. Here, the circuit court properly exercised its discretion by denying Kotecki's motion for a new trial. As discussed above, there was ample evidence on which the jury could conclude Kotecki was negligent. See supra, ¶¶ 16-18. The jury's verdict is not against the great weight and clear preponderance of the evidence.
¶ 31. Kotecki next argues the interests of justice require a new trial "based on Kubichek's deception which distorted the facts that were presented to the jury." Kotecki takes issue with the admission
¶ 32. Kotecki did not object to the admission of the 2001 chainsaw manual at trial. In fact, he acknowledged that the manual admitted into evidence was for the same make and model as his chainsaw. "Failure to make a timely objection to the admissibility of evidence waives that objection." State v. Damon,
¶ 33. Even assuming the circuit court improperly admitted the 2001 chainsaw manual, a new trial would not be warranted. The manual demonstrated that Kotecki failed to follow known logging safety practices. The jury had ample basis for finding the existence of the same safety practices by reference to evidence other than the manual. See supra, ¶¶ 8-10. Thus, even if the 2001 chainsaw manual had been ruled inadmissible, there is no reason to believe the jury would have reached a different result.
D. Accord and satisfaction
¶ 34. Finally, Kotecki argues Kubichek's claim must be dismissed based on the doctrine of accord and satisfaction. An accord and satisfaction is an agreement between parties to discharge an existing disputed claim. Hoffman v. Ralston Purina Co.,
¶ 35. The following two elements must be present for a court to find a valid accord and satisfaction: "there must be a good faith dispute about the debt; [and] the creditor must have reasonable notice thаt the check is intended to be in full satisfaction of the debt." Flambeau Prods.,
¶ 36. First, the letter accompanying the check made no reference to settlement. Unlike Wisconsin Mutual's earlier settlement offer, the letter did not state that the check represented "a full and final resolution of this matter including a release of all claims against Jay Kotecki and Wisconsin Mutual[.]" Moreover, the letter sрecifically referred to motions after verdict, stating, "I expect to have my motions after verdict prepared and filed within the next two days." This implies that Wisconsin Mutual and Kotecki understood a settlement had not taken place. There would be
¶ 37. Second, contrary to Kotecki's assertions, the language on the check was not "unambiguous" and did not clearly indicate that the check was being offered in full settlement of Kubichek's claims. Kotecki relies on language found on the back of the check:
The payee by endorsing this check acknowledges full settlement of claim or account shown on other side and in consideration of this payment hereby fully releases the maker hereof from all liability with respect to such claim or account. (Emphasis added.)
However, there is no "claim or account" shown on the front of the check. The front of the check contains the name of the payer, Wisconsin Mutual, the name of the payee, Gabert, Williams, Konz & Lawrynk, LLfi and the amount. Nowhere on the front of the check is there any mention of Kotecki, Kubichek, a case number, or a claim number. In fact, there is no indication at all that the check has any relation to the present case. The language on the back of the check is therefore ambiguous. Additionally, the language on the back of the check only purports to release "thе maker hereof' from liability. The front of the check shows that its maker was Wisconsin Mutual, not Kotecki. Thus, the check is also ambiguous with respect to whether it was offered in settlement of Kubichek's claims against both defendants, or only against Wisconsin Mutual.
¶ 38. Third, shortly before issuance of the $300,000 check, counsel for Kotecki and Wisconsin Mutual indicated to Kubichek's attorney that Wisconsin Mutual intended to tender its $300,000 policy limit to prevent the accrual of further interest on Wisconsin Mutual's portion of the jury verdict. And, less than one week earlier, Kubichek's attorney had specifically informed Wisconsin Mutual that his client would not accept a $300,000 settlement. Kubichek simply had no rеason to believe that Wisconsin Mutual intended the $300,000 check to be a full settlement of Kubichek's claims.
II. Kubichek's cross-appeal
¶ 39. In a cross-appeal, Kubichek contends the circuit court erred by denying his postverdict motion for double costs and interest. If a plaintiff submits a valid offer of settlement to defendants at least twenty days before trial, the defendants reject the offer, and the plaintiff recovers a more favorable verdict at trial, the plaintiff shall recover: (1) double the amount of taxable costs; and (2) twelve percent annual interest on the amount recovered from the date of the offer of settlement until the date the amount is paid. Wis. Stat. § 807.01(3) and (4).
¶ 40. The validity of a statutory offer of settlement is a question of law that we review independently. Kozlik v. Gulf Ins. Co.,
NOW COMES the plaintiff, John P Kubichek, Sr., by his attorneys of record,. . . and pursuant to [Wis. Stat. § 807.01(3) and (4)], hereby offers to settle the above matter for the amount of $299,999.00 with costs, subject to the approval of the Court.
Failure to accept this Offer and fаilure to serve written notice of such acceptance within ten (10) days after receipt of this Offer may subject you to costs and interest under [Wis. Stat. § 807.01(3) and (4)].
The circuit court concluded Kubichek's offer was ambiguous because it did not account for the Marinette County Department of Health and Human Services' Medicaid lien. We agree. When a case involves a subrogated party with a separate claim against the defendants, the plaintiffs offer of settlement is ambiguous if it fails to account for the subrogated claim. See Hadrian v. State Farm Mut. Auto. Ins. Co.,
¶ 42. Under the general rule, an ambiguous offer is invalid and does not entitle the offeree to double costs and interest under Wis. Stat. § 807.01. DeWitt,
¶ 43. In Prosser, the plaintiff served a $99,750 settlement offer on the defendant's insurer. Id. at 133. The offer was addressed only to the insurer and its attorneys. It did not mention the insured. The insurer never responded to the offer. The parties subsequently stipulated that judgment would be entered against the insurer in the amount of $100,000, the insurer's policy limit. Id. at 143. The plaintiff then asserted he was entitled to double costs and interest because he had received a judgment more favorable than the settlement offer. The insurer contended the settlement offer was ambiguous and therefore invalid because it was unclear whether the offer proposed releasing the insurer alone or both the insurer and the insured. Id. at 139.
¶ 44. The supreme court agreed that the offer was ambiguous. However, it determined the offer should nevertheless be considered valid because the insurer had a duty to clarify the ambiguity and failed to do so. Id. at 141. The court acknowledged the general rule that the offeror is responsible for making an unambiguous offer of settlement. Yet it determined this general rule does not work well in the liability insurance context, where the insurer "must be concerned with and is responsible for not only its own interests and exposure to liability, but also the interests and [liabilities of its insured]." Id. at 137. The court noted that an insurer owes a fiduciary duty to its insured because the insured has given up something of value — the right to defend and settle a covered claim. Id. at 137-38. This fiduciary duty imposes certain obligations on the insurer, including the obligation to diligently
¶ 45. The Prosser court also reasoned that requiring insurers to clarify ambiguous settlement offers is consistent with the purpose of Wis. Stat. § 807.01, which is to encourage settlement of cases prior to trial. Id. at 140. The court concluded, "[T]here is no reason that an insurer, bound by its fiduciary duty, cannot make reasonable inquiries regarding ambiguities so that easily correctible errors do not compromise the utility of a settlement offer." Id. The burden on the insurer would not be too great — a simple letter or telephone call requesting clarification would suffice. Id.
¶ 46. Based on Prosser, we conclude Wisconsin Mutual had a duty to clarify Kubichek's settlement offer. Admittedly, the precise issue in Prosser was the insurer's duty to clarify ambiguity regarding whether a settlement offer applies to both the insurer and the insured. Here, the ambiguity relates to the settlement offer's failure to address a subrogated claim. Despite this factual difference, the Prosser rationale is applicable. In both situations, the insurer's fiduciary duty regarding settlement mandates that the insurer must clarify an ambiguous offer in order to fully protect its insured's interests.
¶ 47. Wisconsin Mutual was presented with an offer to settle Kubichek's case, which involved exposure in the millions of dollars,
¶ 48. Kotecki cites two cases for the proposition that the Prosser rationale does not apply. In Ritt, 199 Wis. 2d at 78, we held that a plaintiffs settlement offer was ambiguous and therefore invalid when it failed to address the interests of a subrogated party. In Hadrian,
¶ 49. These cases are not binding legal authority on the issue before us. Ritt, a 1995 court of appeals decision, was issued well before our supreme court's 1999 decision in Prosser. Hadrian was decided after Prosser, but did not address the extent of an insurer's fiduciary duty to clarify an ambiguous settlement offer. Instead, Hadrian relied on the general rule regarding ambiguous offers found in pr e-Prosser decisions, without acknowledging that Prosser carved out an exception to that rule.
¶ 50. Because Wisconsin Mutual had a duty to clarify Kubichek's ambiguous offer, and because it failed to perform that duty, Kubichek's offer is valid. The jury verdict exceeded Kubichek's $300,000 offer. Accordingly,
By the Court. — Judgment affirmed in part; reversed in рart, and cause remanded with directions.
Notes
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
While Wisconsin has abolished assumption of the risk as an absolute defense, a plaintiffs assumption of the risk may be considered as part of the comparative negligence analysis. Moulas v. PBC Prods., Inc.,
Wisconsin Stat. § 805.15(1) permits a party to "move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice."
Kubichek's undisputed past medical expenses alone amounted to $1.5 million.