Estate of Emilly Zhu v. Brian J. Hodgson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 23, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1873 2016CV567

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ESTATE OF EMILLY ZHU BY SPECIAL ADMINISTRATOR
ZONGJIAN ZHU, ZONGJIAN ZHU AND WEIQIN JIANG,

PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS,

V.

BRIAN J. HODGSON,

DEFENDANT-APPELLANT-CROSS-RESPONDENT,

IDS PROPERTY CASUALTY INSURANCE COMPANY,

DEFENDANT-CROSS-RESPONDENT.

APPEAL from a judgment and CROSS-APPEAL from a judgment
and an order of the circuit court for Dane County: VALERIE BAILEY-RIHN,
Judge. Affirmed and cause remanded with directions.

Before Fitzpatrick, P.J., Graham, and Nashold, JJ.
No. 2019AP1873

¶1 FITZPATRICK, P.J. Brian Hodgson struck Emilly Zhu with his
vehicle while Zhu was on her bicycle crossing a road in a marked crosswalk. Zhu
later died from injuries sustained in that collision. The Estate of Emilly Zhu and
Zhu’s parents, Zongjian Zhu and Weiqin Jiang,1 brought this action against
Hodgson and his insurer, IDS Property Casualty Insurance Company. A jury
determined that Zhu was not negligent, but Hodgson was negligent and Hodgson’s
negligence caused the collision. The jury also awarded amounts for the injuries
sustained. Judgment was entered against Hodgson in the amount of
$5,481,471.24, and against IDS in the amount of $108,268.70.

¶2 Hodgson appeals the judgment against him and challenges a ruling
of the circuit court regarding testimony of one of the Estate’s expert witnesses and
the circuit court’s denial of his post-verdict motions. The Estate cross-appeals a
post-verdict order of the circuit court and contends that the court erred in not
making IDS jointly and severally liable for the total verdict amount. We affirm
the judgment and order.

¶3 In addition, IDS argues that the Estate’s cross-appeal of the circuit
court’s post-verdict order regarding the judgment against IDS is frivolous and asks
this court for an award of attorney fees and costs. We agree that the Estate’s
cross-appeal of that order is frivolous and remand this matter to the circuit court
for a determination of reasonable appellate attorney fees and costs.

BACKGROUND

¶4 The following material facts are undisputed.

1
We will refer to the Estate of Emilly Zhu and Zhu’s parents as “the Estate” unless the
context requires otherwise.

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¶5 In June 2015, Hodgson was driving westbound on Raymond Road in
Madison. At approximately the same time, Zhu was riding her bicycle southbound
on the Ice Age Trail near where that trail intersects with Raymond Road. As Zhu
crossed Raymond Road within the bounds of a marked crosswalk, Hodgson’s
vehicle collided with Zhu. Zhu sustained multiple traumatic injuries in the
accident and died two days later.

¶6 The Estate brought this action against Hodgson and IDS.2 The case
was tried before a jury for four days. The jury returned a special verdict in which
the jury determined that Hodgson was negligent in the operation of his motor
vehicle, and such negligence was a cause of the collision. The jury also
determined that Zhu was not negligent in the operation of her bicycle. The jury
awarded $10,000,000 to Zhu’s parents for loss of society and companionship.3 In
addition, the jury awarded the Estate $5,000,000 for Zhu’s conscious pain and
suffering.

¶7 Germane to this appeal, Hodgson and IDS filed post-verdict motions
requesting that the circuit court: change the jury’s award of damages for Zhu’s
conscious pain and suffering to $0; change the jury’s determination that Zhu was
not negligent and conclude as a matter of law that Zhu was causally negligent or,
in the alternative, grant a new trial on liability issues based on purported errors in
jury instructions. Hodgson and IDS also requested that the circuit court reduce the

2
The Estate also named as defendants Group Health Cooperative of South Central
Wisconsin and Allstate Fire and Casualty Insurance Company, the Estate’s underinsured motorist
carrier. The Estate’s claims against those defendants are not at issue in this appeal.
3
The parties stipulated that the Estate’s damages for Zhu’s medical bills were
$127,177.79, and that the Estate’s damages for funeral expenses were $9,328.69.

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jury’s award for loss of society and companionship to the statutory maximum of
$350,000. See WIS. STAT. § 895.04(4) and (7) (2017-18).4

¶8 The circuit court granted Hodgson’s motion to reduce the jury’s
award for loss of society and companionship to the statutory maximum of
$350,000 and denied each of Hodgson’s other post-verdict motions. The circuit
court entered judgment, including costs, against IDS in the amount of
$108,268.70, and against Hodgson in the amount of $5,481,471.24.5

¶9 IDS tendered to the Estate full payment of the judgment rendered
against it, but the Estate refused to sign a satisfaction of judgment based on that
tender. IDS filed a motion in the circuit court requesting an order for satisfaction
of judgment based on IDS’s tender of the amount noted in the judgment. The
circuit court granted IDS’s request and entered an order that the judgment against
IDS was fully satisfied. This appeal and cross-appeal followed.

¶10 Additional pertinent facts are set forth in our discussion below.

DISCUSSION

¶11 Hodgson appeals the judgment against him. The Estate cross-
appeals the judgment against IDS and the order for satisfaction of judgment
entered by the circuit court. We address each in turn.

4
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
5
Excluding costs, the judgment against IDS was $100,000, an amount which (as we
discuss later in this opinion) reflects the limits of Hodgson’s automobile liability insurance
policy, and the judgment against Hodgson was $5,386,506.48.

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I. Hodgson’s Appeal.

A. Admissibility of Expert Testimony on Conscious Pain and Suffering.

¶12 The Estate sought damages for conscious pain and suffering
sustained by Zhu before and after the accident. See generally Schilling v.
Chicago, N. Shore & Milwaukee R.R. Co., 245 Wis. 173, 177, 13 N.W.2d 594
(1944) (superseded by statute on other grounds) (stating that if decedent’s death is
caused by a wrongful or negligent act, the decedent’s estate can recover for pain
and suffering felt by the decedent during the period between the accident and
death); WIS. STAT. § 895.04. Hodgson argues that opinion testimony from the
Estate’s expert that Zhu felt pain and suffering before and after the accident was
inadmissible under WIS. STAT. § 907.02(1), and the circuit court erroneously
exercised its discretion in admitting that expert testimony. We begin by setting
forth additional pertinent facts.

1. Additional Pertinent Facts.

¶13 To support the claim that Zhu had conscious pain and suffering, the
Estate relied in part upon the testimony of Dr. Randal F. Wojciehoski. We
summarize here, and later, Dr. Wojciehoski’s testimony at his discovery
deposition and a hearing before the circuit court concerning Hodgson’s request to
bar the testimony of Dr. Wojciehoski under WIS. STAT. § 907.02(1).6

¶14 Dr. Wojciehoski is a physician board certified in internal and
emergency medicine and is employed as an emergency physician at Saint
Michael’s Hospital-Ministry Health Care in Stevens Point, Wisconsin.

6
That hearing took place, without the jury present, during the trial.

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Dr. Wojciehoski has worked as a physician for over thirty years. He has testified
previously three times regarding conscious pain and suffering, twice for plaintiffs
and once for the defense. Dr. Wojciehoski has “seen approximately [100,000]
patients” over the course of his career. He is also a senior aviation medical
examiner for the Federal Aviation Administration.

¶15 Dr. Wojciehoski opined that “Zhu … experience[d] [suffering in the
form of] pre-death fear and apprehension” before she was struck by Hodgson’s
vehicle. Dr. Wojciehoski also opined that after the collision Zhu experienced at
least thirty seconds, and up to sixty seconds, “conscious pain and suffering prior to
being rendered unconscious.”

¶16 The circuit court determined that Dr. Wojciehoski was qualified to
testify as an expert under WIS. STAT. § 907.02(1). The court summarized its
ruling: “I am convinced that this medical doctor has the experience and the
training for the limited opinions that he is going to express.” The circuit court
ruled that Dr. Wojciehoski’s discovery deposition testimony could be read to the
jury during trial as requested by the Estate. The transcript of Dr. Wojciehoski’s
deposition testimony was then read to the jury.

¶17 In a post-verdict motion, and on appeal, Hodgson asserts that
Dr. Wojciehoski’s testimony was not admissible in evidence and should not have
been presented to the jury. Specifically, Hodgson asserted in his post-verdict
motion that Dr. Wojciehoski’s opinion on Zhu’s conscious pain and suffering
“lack[ed] … foundation” and was “speculative.”

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¶18 The circuit court denied Hodgson’s post-verdict request for relief
regarding Dr. Wojciehoski’s testimony. Hodgson renews, on appeal, his challenge
to the admissibility of Dr. Wojciehoski’s testimony.7

2. Standard of Review and Governing Legal Principles.

¶19 We review a circuit court’s decision to admit or exclude expert
testimony under an erroneous exercise of discretion standard. State v. Giese, 2014
WI App 92, ¶16, 356 Wis. 2d 796, 854 N.W.2d 687. We first decide whether the
circuit court applied the proper legal standard under WIS. STAT. § 907.02(1), and
we make that determination independent of the circuit court analysis. Seifert v.
Balink, 2017 WI 2, ¶89, 372 Wis. 2d 525, 888 N.W.2d 816; id., ¶218 (Gableman,
J., concurring).8 Once this court is satisfied that the circuit court applied the
proper legal framework, we then review whether the circuit court properly
exercised its discretion in its choice of relevant factors and its ultimate conclusion
as to admissibility under § 907.02(1). Id., ¶90; id., ¶218 (Gableman, J.,
concurring).

¶20 “The admissibility of expert testimony is governed by WIS. STAT.
§ 907.02,” which adopts “the Daubert [v. Merrell Dow Pharmaceuticals, Inc.,

7
Post-trial, the circuit court commented that it “probably should have excluded the
expert opinion of Dr. [Wojciehoski].” However, the circuit court concluded that the admission of
Dr. Wojciehoski’s testimony was harmless because, even without Dr. Wojciehoski’s testimony,
there was sufficient evidence from which the jury could infer Zhu suffered pre-accident suffering
and post-accident pain and suffering. Although Hodgson notes in briefing in this court the circuit
court’s post-verdict comment about admissibility of Dr. Wojciehoski’s testimony, Hodgson does
not rely on that comment as a separate basis to support his argument about the inadmissibility of
that testimony.
8
Hodgson does not argue that the circuit court used an improper legal standard in
determining the admissibility of Dr. Wojciehoski’s testimony. The circuit court recognized and
incorporated the standards enunciated in Seifert v. Balink, 2017 WI 2, 218, 372 Wis. 2d 525, 888
N.W.2d 816, in its decision regarding the admissibility of Dr. Wojciehoski’s testimony.

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No. 2019AP1873

509 U.S. 579 (1993)] reliability standard embodied in Federal Rule of
Evidence 702.” Giese, 356 Wis. 2d 796, ¶17 (quoted source omitted); see also
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 138 (1999).
Section 907.02(1) provides:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise, if the testimony is based upon sufficient facts or
data, the testimony is the product of reliable principles and
methods, and the witness has applied the principles and
methods reliably to the facts of the case.

¶21 Under WIS. STAT. § 907.02(1), the circuit court functions as a “gate-
keeper … to ensure that the expert’s opinion is based on a reliable foundation and
is relevant to the material issues.” Giese, 356 Wis. 2d 796, ¶18 (citing Daubert,
509 U.S. at 589 n.7). In determining the admissibility of expert testimony, the
question before the court is “whether the … principles and methods that the expert
relies upon have a reliable foundation ‘in the knowledge and experience of [the
expert’s] discipline.’” Id. (quoting Daubert, 509 U.S. at 592). The focus of the
court is on the principles and methodology the expert relies upon, not on the
expert’s conclusion. Id.

¶22 Factors identified in Daubert “do not constitute a ‘definitive
checklist or test.’” Kumho Tire, 526 U.S. at 150 (quoting Daubert, 509 U.S. at
593); see also Seifert, 372 Wis. 2d 525, ¶64; Seifert, 372 Wis. 2d 525, ¶236
(Gableman, J., concurring). Ultimately, the inquiry is a “flexible one” with the
goal being to test the reliability of the proposed expert testimony. See Seifert, 372
Wis. 2d 525, ¶64; id., ¶236 (Gableman, J., concurring). An expert’s testimony

8
No. 2019AP1873

may be reliable based on the experience of the expert, including relevant medical
experience. See id., ¶¶77-78, 85; id., ¶¶226, 230, 237 (Gableman, J., concurring).

¶23 The general rule is not to exclude testimony but, rather, “‘shaky but
admissible’ experience-based medical expert testimony” may be challenged by
cross-examination, presentation of contrary evidence, and instruction to the jury
on the burden of proof. Id., ¶86 (quoting Daubert, 509 U.S. at 597).

3. Analysis.

¶24 Hodgson argues that the circuit court did not properly exercise its
discretion in admitting Dr. Wojciehoski’s testimony for the two following reasons:

(1) Dr. Wojciehoski’s testimony was unreliable, and inadmissible, because
the testimony was based upon insufficient facts; and

(2) Dr. Wojciehoski’s testimony was inadmissible because it was not the
product of reliable principles and methods.

¶25 We next address each of Hodgson’s arguments.

a. Dr. Wojciehoski’s Testimony Was Supported by Sufficient Facts.

¶26 Hodgson asserts that Dr. Wojciehoski did not have sufficient facts to
give admissible testimony as to whether Zhu had conscious pain and suffering
before or after the accident. We disagree.

¶27 We consider, first, Dr. Wojciehoski’s testimony regarding facts he
considered in coming to his opinion that Zhu suffered in the form of pre-accident
fear and apprehension. Dr. Wojciehoski reviewed the 911 recording from
Hodgson’s call after the collision, the EMS file, paramedic records, the police

9
No. 2019AP1873

report about the accident, and 756 pages of Zhu’s medical records.
Dr. Wojciehoski opined that Zhu suffered pre-accident fear and apprehension
because Zhu “saw [Hodgson’s] car before it hit her.” Dr. Wojciehoski based that
opinion on, among other facts, the following: “it was a clear day, [Zhu] was on a
bike path approaching a road,” Zhu “had no evidence of impairment” and “wasn’t
blind,” and Zhu “wasn’t deaf, so she’d hear a car.” Dr. Wojciehoski considered
that Zhu was struck from the side (not from behind where she may not be aware of
the car). Also, skid marks created by Hodgson’s vehicle established that there was
a period of time between when Hodgson braked and when his vehicle struck Zhu
that Zhu would have heard the tires braking.

¶28 The facts described immediately above were sufficient for the circuit
court to properly exercise its discretion and determine that Dr. Wojciehoski could
reliably opine that Zhu was aware that she was about to be struck by Hodgson’s
vehicle and suffered in the form of pre-accident fear and apprehension.

¶29 We next turn to those facts that support Dr. Wojciehoski’s testimony
that Zhu suffered conscious pain and suffering after she was struck by Hodgson’s
car. To repeat, Dr. Wojciehoski testified that Zhu was likely conscious for thirty
to sixty seconds after she was hit by Hodgson’s vehicle, and during that time she
felt pain and suffering. Dr. Wojciehoski based this opinion on facts that included
the following:

 Zhu was conscious before the collision, and her injuries sustained in
the collision do not establish that Zhu lost consciousness
immediately when she was struck.

 After she was hit by Hodgson’s car, Zhu was thrown approximately
thirty feet through the air.

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No. 2019AP1873

 Zhu suffered multiple injuries, including skull fractures, multiple
fractures to her leg, a pneumothorax, multiple rib fractures, a
cervical spine fracture, and a splenic laceration.

¶30 The facts set forth in the preceding paragraph were sufficient for the
circuit court to reasonably exercise its discretion and determine that
Dr. Wojciehoski could reliably opine that Zhu was conscious after she was struck
by Hodgson’s vehicle and that, during that period of consciousness, she felt pain
and suffered.

¶31 Hodgson contends that Dr. Wojciehoski’s testimony was
inadmissible because he did not know if Zhu’s head hit the hood of Hodgson’s car
or the pavement after the collision, and he did not know exactly how long Zhu was
conscious after the accident. Those gaps in Dr. Wojciehoski’s knowledge do not
make his testimony inadmissible. Rather, those gaps go to the weight the jury may
assign to the testimony and are properly explored on cross-examination of
Dr. Wojciehoski. See id., ¶86.

b. Dr. Wojciehoski’s Opinions were Based Upon, and Applied,
Reliable Principles and Methods.

¶32 Hodgson argues that Dr. Wojciehoski’s opinions were unreliable,
and inadmissible, because the testimony was not based upon, and did not apply,
reliable principles and methods. We disagree.

¶33 To summarize, Dr. Wojciehoski’s opinions were based on his prior
medical experience “[h]aving been in practice 30 years.” Dr. Wojciehoski has
treated patients with significant injuries like that which Zhu experienced,
including pain treatment for persons who were “not speaking,” but suffered

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No. 2019AP1873

traumatic injuries. The only research relied upon by Dr. Wojciehoski in support of
his opinions was “research completed by Dr. Richard Levey … an Air Force
psychiatrist who studied aviation accidents.” According to Dr. Wojciehoski,
Dr. Levey is “well respected in the aviation community,” has “opined … on
military crashes,” and “was an expert opining on some of the 9/11 issues of people
… who were in the airplane and died as a result of that [crash].” Dr. Wojciehoski
described Levy’s research on pre-death fear as drawing from the experiences of
pilots who were aware of mechanical failure prior to an impact. But,
Dr. Wojciehoski was unable to cite to any specific publication by Dr. Levy that
informed Dr. Wojciehoski’s opinion.

¶34 Hodgson identifies three primary areas regarding Dr. Wojciehoski’s
testimony. First, Hodgson argues that Dr. Wojciehoski did not rely on peer-
reviewed articles to support his opinions. Hodgson also asserts that
Dr. Wojciehoski’s testimony should have been excluded because his opinions
cannot be objectively tested, and his methodology is not generally accepted in the
medical community.

¶35 The determinative flaw in Hodgson’s arguments is that those
arguments fail to address the complex nature of the basis for expert medical
opinions. Rather, Hodgson focuses entirely on factors identified in Daubert
regarding peer-reviewed studies, objective testing and the like, and ignores the
broad discretion that Kumho Tire makes clear that circuit courts have in
determining the reliability of expert testimony. As one example, the Supreme
Court in Kumho Tire held that the factors enunciated in Daubert may not be
applicable to all types of expert testimony. See Kumho Tire, 526 U.S. at 150.

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¶36 Moreover, medical testimony may be reliable if based on the
experience of the medical practitioner. See Seifert, 372 Wis. 2d 525, ¶¶77-78, 85;
id., ¶¶226, 230, 237 (Gableman, J., concurring). In Seifert, our supreme court
concluded that the reliability of expert testimony provided by physicians may be
gauged by the physician’s personal knowledge and experience alone. “[M]edicine
is scientific, but not entirely a science.” Id., ¶79 (quoting Primiano v. Cook, 598
F.3d 558, 565 (9th Cir. 2010)); id., ¶230 (Gableman, J., concurring). Medicine is
based on “specialized as distinguished from scientific knowledge.” Id., ¶78
(quoting Sullivan v. U.S. Dep’t of the Navy, 365 F.3d 827, 834 (9th Cir. 2004)).
Medical testimony is reliable if there is a reasonable basis for it in the knowledge
and experience of the expert. See id., ¶81.

¶37 Indeed, there is no reason to expect, as Hodgson demands, that there
would be peer-reviewed studies or objective testing of persons who have periods
of pain and suffering from traumatic injuries before death. In the field of
medicine, there are ethical and practical limitations which may mean that there is
no medical literature, or objective studies, for every medical question that may be
the subject of expert testimony. See generally id., ¶¶79, 83-85; id., ¶240
(Gableman, J., concurring). As the circuit court noted in its analysis of the
admissibility of Dr. Wojciehoski’s testimony, experience of a physician may be
sufficiently reliable for the admission of medical expert testimony. See id., ¶¶83-
85; id., ¶240 (Gableman, J., concurring). Dr. Wojciehoski reached his opinion
based on his qualifications and experience, and took into account the
individualized facts of the case.

¶38 Keeping in mind the broad leeway that is to be accorded to the
circuit court on how to assess the reliability of expert opinion testimony, as well as

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the court’s final determination of reliability, we are satisfied that, on these facts,
the circuit court did not err in admitting Dr. Wojciehoski’s testimony.9

B. The Circuit Court’s Denial of Hodgson’s Request to Read at Trial
Dr. Wojciehoski’s Cross-Examination Testimony at the Daubert Hearing.

¶39 Hodgson argues that the circuit court erroneously exercised its
discretion in denying his request to read to the jury Dr. Wojciehoski’s cross-
examination testimony during the Daubert hearing that occurred outside the
presence of the jury during the trial. We begin by setting forth additional pertinent
facts.

1. Additional Pertinent Facts.

¶40 At the Daubert hearing, Hodgson’s counsel asked Dr. Wojciehoski
if he was aware that Zhu had suffered from a detached retina in her left eye that
caused permanent scarring in her left eye and led to a diagnosis of “choroidal
neovascularization.” Counsel for Hodgson did not make any medical records
available to Dr. Wojciehoski at the hearing regarding Zhu’s alleged eye condition.
Dr. Wojciehoski testified that, without seeing any medical records regarding Zhu’s
visual acuity, he could not offer an opinion that she was “vision impaired” but, if
she had been, “she wouldn’t be riding a bicycle” and a diminishment in her vision
acuity “doesn’t really alter any of [his] prior opinions.”

9
In light of our decision that Dr. Wojciehoski’s testimony was admissible under WIS.
STAT. § 907.02(1), we need not, and do not, address the Estate’s argument that admission of that
testimony constitutes harmless error. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559
(Ct. App. 1983) (explaining if a decision on one point disposes of the appeal, the court will not
decide other issues raised).

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¶41 Hodgson’s counsel then asked Dr. Wojciehoski if he was aware that
eight months before the accident Zhu fell off a bicycle and suffered a
subarachnoid hemorrhage and was found unconscious on the pavement next to her
bicycle. Counsel for Hodgson did not make any medical records available to
Dr. Wojciehoski at the hearing regarding the alleged fall. Dr. Wojciehoski
testified that he was not aware of any such accident but, if it happened, it “would
have no effect” on his opinion.

¶42 Hodgson’s counsel did not dispute at the Daubert hearing that, at the
time of the discovery deposition, counsel had medical records concerning Zhu’s
purported eye condition and the alleged prior accident but did not ask
Dr. Wojciehoski any questions relating to either at the discovery deposition.

¶43 At the conclusion of the Daubert hearing, Hodgson’s counsel
requested that the cross-examination of Dr. Wojciehoski be transcribed and added
to Dr. Wojciehoski’s deposition testimony that would be read to the jury. The
circuit court denied the request. The court ruled that WIS. STAT. § 804.07(1)(c)2.
authorizes the admission into evidence of the “deposition” of a “medical expert,”
but that statutory subpart does not authorize the admission of the cross-
examination of Dr. Wojciehoski at the Daubert hearing because it is not a
“deposition” under WIS. STAT. § 804.05. In addition, the court determined that, at
the time of Dr. Wojciehoski’s deposition, Hodgson’s counsel had knowledge of
medical records about Zhu’s purported eye condition and prior bike accident. By
asking Dr. Wojciehoski about those records at the Daubert hearing, but not at the
discovery deposition, the Estate was unfairly prejudiced because the Estate did not
have notice that counsel would question Dr. Wojciehoski about those issues at the
Daubert hearing.

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¶44 Dr. Wojciehoski stated at the Daubert hearing that, although he was
not available to testify at trial the day the Daubert hearing was held, he was
available to testify the following day, and the circuit court informed Hodgson that
he could call Dr. Wojciehoski as a witness at trial. Hodgson did not do so.

2. Standard of Review.

¶45 We review a circuit court’s decision to admit or exclude evidence
under an erroneous exercise of discretion standard. Giese, 356 Wis. 2d 796, ¶16.
We will not overturn a circuit court’s discretionary decision if the decision “has a
rational basis and was made in accordance with accepted legal standards in view
of the facts in the record.” Id.

3. Analysis.

¶46 On appeal, Hodgson argues that the circuit court’s exclusion of
Dr. Wojciehoski’s Daubert hearing cross-examination testimony deprived him of
a meaningful opportunity to cross-examine Dr. Wojciehoski. We agree with the
circuit court that Hodgson had a meaningful opportunity to cross-examine
Dr. Wojciehoski at the discovery deposition regarding Zhu’s visual acuity and the
purported bike accident described in her medical records, but Hodgson decided not
to do so. That Hodgson decided to forego this opportunity does not mean that the
circuit court erroneously exercised its discretion in its ruling.

¶47 Hodgson also asserts that he could not have called Dr. Wojciehoski
as a witness at trial because he had not subpoenaed Dr. Wojciehoski to appear at
trial or listed Dr. Wojciehoski as a defense witness. However, Hodgson does not
point to anywhere in the record where he requested, but was denied, the
opportunity to amend the defense witness list to add Dr. Wojciehoski as a witness.

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Further, Hodgson also does not contend that he was unable for any reason to serve
a subpoena on Dr. Wojciehoski to testify at trial. Hodgson’s decision not to call
Dr. Wojciehoski as a witness at trial was an intentional one and, again, that
decision does not lead to the conclusion that the circuit court erroneously
exercised its discretion in not allowing Hodgson to read Dr. Wojciehoski’s cross-
examination testimony from the Daubert hearing to the jury.10

¶48 Accordingly, the circuit court did not erroneously exercise its
discretion by denying Hodgson’s request to read to the jury at trial a transcript of
Dr. Wojciehoski’s cross-examination testimony at the Daubert hearing.

C. Hodgson’s Motions to Change Special Verdict Answers.

¶49 Hodgson contends that the circuit court erred in not granting his
post-verdict motions to change the jury’s answers to special verdict questions. We
begin by setting forth our standard of review and the legal principles that direct
our analysis.

10
Hodgson also argues, briefly, that the cross-examination testimony of Dr. Wojciehoski
was admissible under WIS. STAT. § 901.07 which provides: “When any part of a writing or
statement, whether recorded or unrecorded, is introduced by a party, an adverse party may require
the party at that time to introduce any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it.” This is commonly referred to as
the “rule of completeness.” See State v. Briggs, 214 Wis. 2d 281, 292, 571 N.W.2d 881 (Ct. App.
1997). We need not determine whether the rule of completeness applies in this circumstance
because this argument was not made to the circuit court, the circuit court did not have the
opportunity to consider the argument, and the argument was forfeited by Hodgson. The
“forfeiture rule” requires that issues not preserved in the circuit court are deemed forfeited. State
v. Huebner, 2000 WI 59, ¶11 and n.2, 235 Wis. 2d 486, 611 N.W.2d 727. “Raising issues at the
[circuit] court level allows the [circuit] court to correct or avoid the alleged error … eliminating
the need for appeal.” Id., ¶12. The rule also avoids “blindsid[ing]” circuit courts with reversals
based on theories that did not originate in the circuit court. State v. Rogers, 196 Wis. 2d 817,
827, 539 N.W.2d 897 (Ct. App. 1995).

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No. 2019AP1873

1. Standard of Review and Governing Legal Principles.

¶50 A circuit court may change a jury’s answer to a special verdict
question if there is insufficient evidence to support the answer. See WIS. STAT.
§ 805.14(5)(c) (“Any party may move the court to change an answer in the verdict
on the ground of insufficiency of the evidence to sustain the answer.”). The
sufficiency of the evidence test is set forth at § 805.14(1):

No motion challenging the sufficiency of the evidence as a
matter of law to support a verdict, or an answer in a verdict,
shall be granted unless the court is satisfied that,
considering all credible evidence and reasonable inferences
therefrom in the light most favorable to the party against
whom the motion is made, there is no credible evidence to
sustain a finding in favor of such party.

¶51 “[T]he credibility of witnesses and the weight given to their
testimony are matters left to the jury’s judgment.” Best Price Plumbing, Inc. v.
Erie Ins. Exch., 2012 WI 44, ¶43, 340 Wis. 2d 307, 814 N.W.2d 419 (quoted
source omitted). If more than one inference could be drawn from the evidence, we
must accept the inference drawn by the jury. Id. In reviewing a circuit court’s
decision on a request to change a jury’s special verdict answer, we search for
credible evidence to sustain the jury’s verdict. Id., ¶44. “When there is any
credible evidence to support a jury’s verdict, even though it [is] contradicted and
the contradictory evidence [is] stronger and more convincing, nevertheless the
verdict must stand.” Id. (quoted source omitted).

¶52 Our review is “even more stringent because the circuit court
approved the jury’s verdict. We afford special deference to a jury determination in
those situations in which the [circuit] court approves the finding of a jury.”
Morden v. Continental AG, 2000 WI 51, ¶40, 235 Wis. 2d 325, 611 N.W.2d 659.
In those cases, we “will not overturn the jury’s verdict unless ‘there is such a

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No. 2019AP1873

complete failure of proof that the verdict must be based on speculation.’” Id.
(quoted source omitted).

¶53 We now address Hodgson’s arguments regarding changes to special
verdict answers.

2. Zhu’s Conscious Pain and Suffering.

¶54 The jury was asked to answer the following special verdict question:
“What sum of money will fairly and reasonably compensate plaintiffs with respect
to: … Past pain, suffering, mental anguish, apprehension, discomfort or sorrow?”
The jury answered: “$5,000,000.” Hodgson contends that the circuit court erred
in denying his request that the jury’s answer be changed to “$0.”

¶55 Hodgson concedes that Dr. Wojciehoski testified that Zhu
experienced suffering in the form of pre-collision fear and apprehension and post-
collision conscious pain and suffering from her injuries. However, Hodgson
argues that Dr. Wojciehoski’s testimony is not “credible evidence” for the same
reasons that Hodgson contends that Dr. Wojciehoski’s testimony was not
“reliable” and admissible, as discussed earlier. From that, Hodgson asserts that,
because the testimony of Dr. Wojciehoski is not credible, this case is analogous to
Bowen v. Lumbermens Mutual Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432
(1994). In Bowen, the decedent was fatally injured by a car while riding his
bicycle, and his estate alleged a cause of action against the driver of the car for
negligent infliction of emotional distress and fear suffered by the decedent
immediately prior to the collision. Id. at 634-35, 661. Our supreme court
concluded that the estate’s claim failed because there was no credible evidence
that “Bowen knew of the impending impact or suffered severe emotional distress
in the moments before impact.” Id. at 661-62.

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No. 2019AP1873

¶56 We reject Hodgson’s contention that the result is governed by
Bowen because there is evidence to support the Estate’s contention that Zhu
experienced pain and suffering. Dr. Wojciehoski’s opinion that Zhu experienced
suffering in the form of pre-collision fear and apprehension and post-collision
conscious pain and suffering from her injuries was admissible and, if believed by
the jury, constituted credible evidence to support the jury’s special verdict answer.

¶57 Next, Hodgson argues that the answer to this special verdict question
must be changed because Dr. Wojciehoski’s opinions directly contradict
Hodgson’s testimony that he did not observe any reaction from Zhu before the
collision, and that he did not notice any signs of consciousness in Zhu sixty
seconds after the collision occurred when Hodgson saw Zhu in the roadway. This
court does not determine the credibility of witnesses and the weight to be accorded
to Dr. Wojciehoski’s testimony as compared to Hodgson’s testimony. That was
for the jury to determine. See Best Price Plumbing, 340 Wis. 2d 307, ¶43. We
are satisfied that, although Dr. Wojciehoski’s testimony conflicted with Hodgson’s
testimony, the jury could reasonably have found Dr. Wojciehoski’s testimony
more credible and accorded it more weight.

¶58 Accordingly, the circuit court did not err in denying Hodgson’s
request to change the jury’s answer to the conscious pain and suffering question
on the special verdict.

3. Zhu’s Negligence.

¶59 The jury was asked the following special verdict question: “At or
just before the collision in question, was Emilly Zhu negligent in the operation of
the bicycle she was riding?” The jury’s answer to this question was “[n]o,” and
Hodgson requested in his post-verdict motions that the circuit court change the

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No. 2019AP1873

jury’s answer to “yes.” Hodgson argues that the circuit court erred in denying his
request because “there is no credible evidence to support the jury’s view that Zhu
was not negligent.” (Emphasis added.) Hodgson makes two primary arguments in
support of his motion, and we next address each.

a. Negligence Per Se.

¶60 Hodgson argues that the evidence established that Zhu was negligent
per se under WIS. STAT. §§ 346.46 and 346.24(2).

¶61 WISCONSIN STAT. § 346.46(1) provides that “every operator of a
vehicle approaching an official stop sign at an intersection shall cause such vehicle
to stop before entering the intersection.”11 Section 346.46(2)(c) specifies how
stops required by § 346.46(1) shall be made:

[I]f the operator [of the bicycle] cannot efficiently observe
traffic on the intersecting roadway from the stop made at
the stop line or crosswalk, the operator shall, before
entering the intersection, stop the [bicycle] at such point as
will enable the operator to efficiently observe the traffic on
the intersecting roadway.

Sec. 346.46(2)(c). A failure to stop as required by § 346.46(1) “constitutes
negligence per se.” Totsky v. Riteway Bus Serv., Inc., 2000 WI 29, ¶¶24, 26, 233
Wis. 2d 371, 607 N.W.2d 637.

11
“[V]ehicle” is defined as “every device … by which [a] person … may be transported
… upon a highway.” See WIS. STAT. §§ 346.01(1) and 340.01(74). The parties assume that a
non-motorized bicycle is a “vehicle” within in the meaning of § 340.01(74) and for purposes of
WIS. STAT. § 346.46. We will assume for purposes of this appeal, but do not decide as a matter
of law, that the parties are correct on those points.

The parties assume that the stop sign facing the bike trial where Zhu was crossing
Raymond Road is an “official stop sign” as mentioned in WIS. STAT. § 346.46. We will assume
for purposes of this appeal, but do not decide as a matter of law, that the parties are correct on that
point.

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No. 2019AP1873

¶62 WISCONSIN STAT. § 346.24 relates to intersections or crosswalks not
controlled by a “traffic control signal[].”12 It states in pertinent part: “No …
bicyclist … may suddenly leave … a curb or other place of safety and … ride into
the path of a vehicle which is so close that it is difficult for the operator of the
vehicle to yield.” Sec. 346.24(2). This is a safety statute, and Hodgson contends
that anyone who violates a safety statute can be found negligent as a matter of law.
See Landrey v. United Servs. Auto. Ass’n, 49 Wis. 2d 150, 154, 181 N.W.2d 407
(1970) (stating the violation of safety statutes “constitutes negligence as a matter
of law”).

¶63 The Estate asserts that Hodgson bore the burden of proving that Zhu
failed to comply with WIS. STAT. §§ 346.46(2)(c) and 346.24(2). Hodgson does
not dispute the Estate’s assertion that he bore that burden of proof. Schlieper v.
DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (stating that a
proposition asserted by a respondent on appeal and not disputed by the appellant’s
reply is taken as admitted). Accordingly, we take Hodgson as conceding that it
was his burden to prove that Zhu did not comply with either or both of those
statutes. Thus, the question before us is whether there is any credible evidence
from which the jury could have concluded that Hodgson did not prove that Zhu
violated §§ 346.46(2)(c) or 346.24(2). If there is any such credible evidence, we
must affirm the circuit court’s decision not to change the jury’s verdict. See Best
Price Plumbing, 340 Wis. 2d 307, ¶44.

12
For purposes of that statute, WIS. STAT. § 340.01(69) defines “[t]raffic control signal”
as “any device, whether manually, electrically or mechanically operated, by which traffic is
alternately directed to stop and permitted to proceed.”

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No. 2019AP1873

¶64 We now discuss the evidence that Hodgson asserts establishes that
Zhu was negligent per se and evidence that rebuts Hodgson’s position.

¶65 First, Hodgson relies on his own testimony that he did not observe
Zhu stop her bicycle before leaving the bike path and crossing Raymond Road,
and that she was “pedaling like you would if you were maintaining speed, not
bearing down a bit on the pedals if you were going from a stop.”

¶66 The jury was also given the following evidence which, if believed by
the jury, rebuts that testimony from Hodgson. Hodgson testified at his discovery
deposition that he did not observe Zhu until after she was already beyond the stop
sign and, thus, had no first-hand knowledge as to whether Zhu did or did not stop
at the stop sign. In addition, the Estate’s accident reconstruction expert, Charles
Scalia, testified that there is a knoll on Raymond Road approximately 200-300 feet
to the east of the intersection of Raymond Road and the bike path. The jury heard
from Thomas Patterson, who is familiar with the intersection. He testified that the
knoll would have impeded Hodgson’s view of the bike path until Hodgson’s
vehicle was over the knoll. Further, Scalia testified that, at a minimum,
Hodgson’s vehicle was traveling fifty-three miles per hour leading up to the
collision. Scalia estimated that, at that rate of speed, Hodgson’s vehicle would
have been over the knoll where he could observe Zhu only three seconds or less
before colliding with Zhu’s bicycle.

¶67 Second, Hodgson points to testimony from Scalia that only
1.8 seconds passed between when Hodgson began braking and the time Zhu was
struck by Hodgson’s vehicle. However, Hodgson does not explain how this
evidence shows that Zhu did not stop where she could “efficiently observe” traffic
on Raymond Road in compliance with WIS. STAT. § 346.46(2)(c) or how this

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No. 2019AP1873

evidence shows that Zhu’s actions made it difficult for Hodgson to yield to Zhu
under WIS. STAT. § 346.24(2). We reject Hodgson’s contention on this basis
because this court need not address insufficiently developed arguments. See State
v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

¶68 Third, Hodgson relies on evidence that Zhu’s bike was not in the
lowest gear when her bike was recovered after the accident. But, Hodgson fails to
explain how that evidence establishes that Zhu failed to comply with either of the
relevant statutes. Accordingly, we reject this argument as insufficiently
developed. See id.

¶69 Therefore, there is credible evidence from which the jury could
conclude that Hodgson did not prove that Zhu violated either WIS. STAT.
§§ 346.46(2)(c) or 346.24(2).

b. The Emergency Doctrine.

¶70 Hodgson argues that evidence heard by the jury established that Zhu
must have been negligent because Zhu left the bike bath and entered Raymond
Road “suddenly” and gave Hodgson only 1.8 seconds to react to stop his vehicle.
Hodgson asserts that the short period of time he had to react before the collision
constitutes a “sudden emergency” and that “a participant in an accident” like
himself may be found to be not negligent if a sudden emergency caused the
accident. This is commonly referred to as the “emergency doctrine.” See
generally Hoeft v. Friedel, 70 Wis. 2d 1022, 1030, 235 N.W.2d 918 (1975).
Under the emergency doctrine, a person is relieved from liability for his or her
action or non-action “when faced with an emergency which his [or her] conduct
did not create or help to create.” Id.

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No. 2019AP1873

¶71 The Estate responds that Hodgson waived any argument relating to
the emergency doctrine when Hodgson agreed at the jury instruction conference
not to request an instruction on the emergency doctrine. Hodgson does not
attempt to refute the Estate’s waiver argument in his reply brief, and we take his
silence as concession of the point. See Schlieper, 188 Wis. 2d at 322 (stating an
argument asserted by the respondent and not disputed by the appellant’s reply is
taken as admitted).

¶72 In sum, we affirm the circuit court’s decision not to change the
jury’s verdict answer regarding Zhu’s negligence. See Best Price Plumbing, 340
Wis. 2d 307, ¶44.

D. Hodgson’s Request For a New Trial.

¶73 Hodgson argues that the circuit court erred in instructing the jury:
(1) regarding the law on right-of-way and the duties of bicyclists and drivers of
motor vehicles; and (2) that the jury should presume, in light of her death, that Zhu
was not negligent. Hodgson asserts that these purported errors were prejudicial
and require a new trial on liability issues. We reject Hodgson’s arguments for the
following reasons.

1. Right-of-Way and Duties of Bicyclists and Drivers of Motor Vehicles.

¶74 We begin by discussing our standard of review.

a. Standard of Review.

¶75 Our standard of review of a circuit court’s decision to give, or not
give, a requested jury instruction has been stated as follows:

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No. 2019AP1873

“‘A circuit court has broad discretion in deciding
whether to give a requested jury instruction.’” We will not
overturn a circuit court’s decision to give or not give a
requested jury instruction absent an erroneous exercise of
discretion. “However, we independently review whether a
jury instruction is an accurate statement of the law
applicable to the facts of a given case.” “‘If the overall
meaning communicated by the instructions was a correct
statement of the law, no grounds for reversal exist.’”

State v. Anderson, 2014 WI 93, ¶16, 357 Wis. 2d 337, 851 N.W.2d 760 (internal
citations and quoted sources omitted).

¶76 This issues also requires us to interpret statutes. The interpretation
of a statute is a question of law that we determine independently of the circuit
court. Pasko v. City of Milwaukee, 2002 WI 33, ¶23, 252 Wis. 2d 1, 643 N.W.2d
72. “[T]he purpose of statutory interpretation is to determine what the statute
means so that it may be given its full, proper, and intended effect.” State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110. “We assume that the legislature’s intent is expressed in the statutory
language.” Id. Accordingly, “statutory interpretation ‘begins with the language of
the statute.’” Id., ¶45 (quoted source omitted). “If the meaning of the statute is
plain, we ordinarily stop the inquiry.” Id. (quoted source omitted). Our supreme
court further notes:

Context is important to meaning. So, too, is the
structure of the statute in which the operative language
appears. Therefore, statutory language is interpreted in the
context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.

Id., ¶46.

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No. 2019AP1873

b. Additional Pertinent Facts.

¶77 Initially, we repeat some background for context. Prior to the
collision, Zhu was riding her bicycle on a bicycle path near where that trail
intersects with Raymond Road. Hodgson was traveling westbound on Raymond
Road. Where that bicycle path intersects with Raymond Road, there is a stop sign
in place that directs traffic on the path to stop, and there is a marked crosswalk
across Raymond Road for bicyclists and pedestrians. As Zhu was crossing
Raymond Road within the marked crosswalk, she was struck by Hodgson’s
vehicle.

¶78 Near the conclusion of the trial, the circuit court and counsel for the
parties conferenced on the instructions the court would give the jury. During the
instruction conference, the circuit court informed all counsel that the court
intended to read to the jury WIS JI—CIVIL 1255, which instructs on “right of way:
pedestrian or bicyclist’s duty at uncontrolled intersection or crosswalk; suddenly
leaving curb or place of safety,” and WIS JI—CIVIL 1165, which instructs on
“right of way: to pedestrian and uncontrolled intersection or crosswalk” with a
slight modification.13 (Capitalization omitted.)

¶79 Counsel for Hodgson did not object at the conference to the circuit
court reading either of these instructions to the jury. Instead, counsel for Hodgson
only “wonder[ed] if 1165 and 1255 are redundant to a certain extent, or they could
be combined in some fashion.” “I think 1255 actually accomplishes everything

13
“Right-of-way” refers to “the privilege of the immediate use of the roadway.” See
WIS. STAT. § 340.01(51); see also WIS JI—CIVIL 1153, 1165, and 1255.

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No. 2019AP1873

1165 does and more.” The circuit court responded that it believed the instructions
are “two separate instructions” and that the court would “keep them [both] in.”14

¶80 We next detail those two instructions as given by the circuit court.
WISCONSIN JI—CIVIL 1165, as modified by the court and read to the jury,15
provides:

The Wisconsin statutes define “right of way” as the
privilege of the immediate use of the roadway.

The statutes further provide that, at an intersection
or crosswalk where traffic is not controlled by traffic
control signals or by a traffic officer [neither of which
apply in this case], the driver of a vehicle shall yield the
right of way to a pedestrian or bicyclist who is crossing the
roadway within a marked or unmarked crosswalk.

A marked crosswalk is any portion of a roadway
clearly indicated for pedestrian crossing by signs, lines, or
other markings on the surface of the roadway.

….

If you find that [Emilly Zhu] was crossing the
roadway within a marked … crosswalk, then it became the
duty of [Defendant Brian Hodgson] to yield the right of
way to [Zhu].

¶81 WISCONSIN JI—CIVIL 1255, as modified by the court and read to the
jury, provides:

A safety statute provides that at an intersection or
crosswalk where traffic is not controlled by traffic control

14
Hodgson argues on appeal that he objected to WIS JI—CIVIL 1165 and 1255 at the
conference. One citation to the record from Hodgson for that assertion shows that Hodgson did
not object to those two jury instructions but, rather, asked that WIS JI—CIVIL 1153 be given in
addition to those two instructions. Hodgson’s other citation to the record for that assertion is not
found in the record in this appeal.
15
Modifications by the circuit court to the standard jury instruction language are shown
in brackets.

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No. 2019AP1873

signals or by a traffic officer [neither of which apply in this
case], the driver of a vehicle shall yield the right of way to
a pedestrian [or bicyclist] who is crossing the highway
within a marked or unmarked crosswalk.

“Right of way” means the privilege of the
immediate use of the roadway.

The statute further provides that a pedestrian [or
bicyclist] shall not suddenly leave a curb or other place of
safety and walk or run into the path of a vehicle which is so
close that it is difficult for the driver of the vehicle to yield
the right of way.

If you find that [Emilly Zhu] suddenly left the [bike
path] and [] the path of [Defendant’s Brian Hodgson’s]
vehicle which was so close that it was difficult for [him] to
yield, then [Defendant Brian Hodgson] did not have a duty
to yield the right of way; but if you find that [Emilly Zhu]
did not so enter the roadway, then it became the duty of
[Defendant Brian Hodgson] to yield the right of way to
[Emilly Zhu].

¶82 At the jury instruction conference, the circuit court also informed
counsel that it would not, as requested by Hodgson, read to the jury WIS JI—
CIVIL 1153, which instructs on “right of way: at intersection with through
highway.” (Capitalization omitted.) WISCONSIN JI—CIVIL 1153 provides as
follows:

A safety statute provides that the driver of a vehicle
shall stop before entering a through highway and shall
yield the right of way to other vehicles which have entered
or are approaching the intersection upon the through
highway.

The statutes define “right of way” as the privilege
of the immediate use of the roadway.

The highway on which [Brian Hodgson] was
driving was, at the time of the collision, a “through
highway” as defined by the statute.

An automobile on a through highway is
approaching an intersection when it is so close to the
intersection that, considering the rate of speed at which it is
traveling, it would be reasonable to assume that a collision

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No. 2019AP1873

would occur if the automobile which stopped, as required,
before entry onto the through highway moves onto the
highway and into the path of the oncoming vehicle.

If you find that the oncoming automobile on the
through highway had entered the intersection, or was
approaching it as here defined, it then became the duty of
the driver entering the through highway to yield the right of
way to the automobile on the through highway.16

(Emphasis added.)

¶83 In rejecting Hodgson’s request to give that instruction, the circuit
court stated that “Zhu was required to stop at the stop sign, and then once she
entered the intersection in the crosswalk then the … specific rules regarding
pedestrians at [an] uncontrolled intersection or crosswalk apply, which are [WIS
JI—CIVIL] 1165 and 1255.” Counsel for Hodgson objected to the exclusion of
WIS JI—CIVIL 1153. He argued that Raymond Road was designated a through
highway by both a City of Madison ordinance and Wisconsin statute, and that all
vehicles must yield to traffic on Raymond Road before entering that roadway.

c. Analysis.

¶84 Before proceeding with our analysis, we clarify a
mischaracterization in Hodgson’s argument on appeal and the specific issue before
this court.

¶85 In his brief-in-chief, Hodgson broadly argues that the circuit court
“erred as a matter of law in instructing the jury that Zhu had the right-of-way.”
(Capitalization omitted.) Hodgson’s description of his argument mischaracterizes

16
The sole modification requested to the standard WIS JI—CIVIL 1153 by Hodgson is
noted in brackets. The form of this instruction proposed to the court by Hodgson did not remove
the word “automobile” and substitute with the word “bicycle” at any point in the instruction.

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No. 2019AP1873

the circuit court’s instructions. Together, WIS JI—CIVIL 1165 and 1255 informed
the jury of the circumstances that required Hodgson to yield the right-of-way to
Zhu and the circumstances that required Zhu to yield the right-of-way to Hodgson.
The circuit court did not, as Hodgson asserts, instruct the jury that, as a matter of
law, Zhu had the right-of-way at the time of the collision.

¶86 Next, as discussed, Hodgson did not object at the conference to the
circuit court reading to the jury WIS JI—CIVIL 1165 and 1255. Hodgson has thus
waived or forfeited any alleged error by the court in giving those two instructions.
See WIS. STAT. § 805.13(3) (“Failure to object at the [instruction] conference [to
the proposed instructions] constitutes a waiver of any error in the proposed
instructions.”).

¶87 Therefore, Hodgson’s argument on appeal can only be that, in
addition to giving WIS JI—CIVIL 1165 and 1255, the circuit court erred by not also
reading to the jury WIS JI—CIVIL 1153. With that clarified, we now proceed with
our analysis.

¶88 To repeat, WIS JI—CIVIL 1165 instructs the jury that at an
intersection or crosswalk, such as this one, where traffic is not controlled by traffic
control signals or by a traffic officer, the driver of a motor vehicle shall yield the
right-of-way to a bicyclist who is crossing the roadway within a marked
crosswalk. See id.; see also WIS. STAT. § 346.24(1). WISCONSIN JI—CIVIL 1255
instructs the jury that in the same situation, the driver of a motor vehicle shall
yield the right-of-way to a bicyclist who is crossing the highway within a marked
or unmarked crosswalk, but if the bicyclist suddenly leaves the curb or other place
of safety and the path of the oncoming motor vehicle is so close to the bicyclist
that it is difficult for the motor vehicle driver to yield the right-of-way, the driver

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No. 2019AP1873

does not have a duty to yield the right-of-way. See id.; see also § 346.24(2). In
contrast, WIS JI—CIVIL 1153 informs the jury that, under Wisconsin law, a vehicle
entering a “through highway” from an intersecting roadway “shall yield the right
of way” to vehicles that are approaching the intersection upon the through
highway. See id.; see also WIS. STAT. § 346.18(3).17

¶89 Hodgson argues that the right-of-way standard set forth in WIS.
STAT. § 346.18(3) and WIS JI—CIVIL 1153 applies in this case because Raymond
Road is classified by Madison ordinance as a through highway and the bike path is
controlled by a stop sign. See MADISON GEN. ORD. 12.53(68) and 12.50.
Hodgson asserts the circuit court should have given the jury the instruction on the
right-of-way rule in § 346.18(3), WIS JI—CIVIL 1153, because that instruction
“can be read harmoniously” with the right-of-way rules set forth in WIS. STAT.
§ 346.24(1) and (2) and their accompanying jury instructions, WIS JI—CIVIL 1165
and 1255. However, Hodgson does not explain why this is true. We conclude that
the right-of-way rules in § 346.18(3) and § 346.24(1) and (2) are incongruous, and
giving WIS JI—CIVIL 1153 in addition to WIS JI—CIVIL 1165 and 1255 would
have confused the jury.

¶90 Under WIS JI—CIVIL 1165 and 1255, Hodgson was required to yield
the right-of-way to Zhu unless Zhu entered Raymond Road so suddenly that
Hodgson had difficulty yielding the right-of-way. However, under WIS JI—
CIVIL 1153, Zhu was required to yield the right-of-way to Hodgson under all
circumstances. The right-of-way standards in each instruction cannot all apply in

17
WISCONSIN STAT. § 346.18(3) provides: “The operator of a vehicle shall stop as
required by [WIS. STAT. §] 346.46(2)(a), (b) or (c) before entering a through highway, and shall
yield the right-of-way to other vehicles which have entered or are approaching the intersection
upon the through highway.”

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No. 2019AP1873

this case. It would have been erroneous for the circuit court to instruct the jury on
the right-of-way rules in each of those three jury instructions. The jury would
have been confused by the addition of WIS JI—CIVIL 1153 to the instructions.

¶91 We could end our analysis at this point because we have identified a
sufficient basis to affirm the circuit court’s ruling. However, for purposes of
completeness, we agree with the circuit court that there was another basis for the
court to refuse to read to the jury WIS JI—CIVIL 1153.

¶92 As recognized by the circuit court, our decision on this point is
guided by Chernetski v. American Family Mutual Insurance Co., 183 Wis. 2d
68, 515 N.W.2d 283 (Ct. App. 1994). Similar to this case, Chernetski concerned a
collision between a motor vehicle and a bicyclist at a roadway intersection, and at
issue was which of two apparently conflicting right-of-way rules applied.
Chernetski, 183 Wis. 2d at 71, 73. We now discuss Chernetski.

¶93 In WIS. STAT. § 346.02(4)(a), the legislature has provided that, as a
general rule, “every person riding a bicycle upon a roadway … is subject to all the
duties which [WIS. STAT. ch. 346] grants or applies to the operator of a vehicle,
except those provisions which by their express terms apply only to motor vehicles
or which by their very nature would have no application to bicycles.” See
Chernetski, 183 Wis. 2d at 73.18 This court explained that, in view of the general

18
In Chernetski v. American Family Mutual Insurance Co., 183 Wis. 2d 68, 515
N.W.2d 283 (Ct. App. 1994), this court analyzed WIS. STAT. § 346.02(4)(a) (1991-92). See
Chernetski, 183 Wis. 2d at 75 n.2. That version of § 346.02(4)(a) provided in relevant part:
“every person riding a bicycle upon a roadway … is subject to all duties which [WIS. STAT.
ch. 346] grants or applies to the operator of a vehicle, except those provisions which by their
express terms apply only to motor vehicles or which by their very nature would have no
application to bicycles.” See § 346.02(4)(a) (1991-92) (emphasis added). The emphasized word
“which” in the 1991-92 version of the statute has since been changed to the word “that.” See
§ 346.02(4)(a) (2017-18). The change makes no material difference to our analysis.

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No. 2019AP1873

rule stated in § 346.02(4)(a), unless another statute has “some ‘special provision[]
applicable to bicycles,’” the issue of whether the car or the bicycle had the right of
way would be governed by the requirements of WIS. STAT. § 346.18. Chernetski,
183 Wis. 2d at 73. We repeat § 346.18(3) for context: “The operator of a vehicle
shall stop as required by [WIS. STAT. §] 346.46(2)(a), (b) or (c) before entering a
through highway, and shall yield the right-of-way to other vehicles which have
entered or are approaching the intersection upon the through highway.” As noted,
Hodgson argues on appeal that WIS JI—CIVIL 1153, the instruction regarding
§ 346.18(3), should have been read to the jury.

¶94 The plaintiffs argued in Chernetski, as the Estate does here, that
WIS. STAT. §§ 346.23-346.25 are such “‘special provision[s]’ [applicable to
bicycles] which trump[] the general rule” regarding the duties set forth in WIS.
STAT. ch. 346. Chernetski, 183 Wis. 2d at 76. As a reminder, the court gave WIS
JI—CIVIL 1165 and 1255. WISCONSIN STAT. § 326.24(1) and (2) are the bases for
WIS JI—CIVIL 1165 and 1255 which state in this context that Hodgson was
required to yield the right-of-way to Zhu unless Zhu entered Raymond Road so
suddenly that Hodgson had difficulty yielding the right-of-way.

¶95 As a result, in Chernetski and in this case, there are two sets of
competing statutes regarding the duties of the motor vehicle driver and the
bicyclist to yield the right-of-way at the intersection. This court concluded that,
when WIS. STAT. §§ 346.02(4)(a), 346.18, and 346.23-346.25 are read together, an
ambiguity is created because § 346.23-346.25 can plausibly be read with two
different meanings. Chernetski, 183 Wis. 2d at 74-75, 77. In light of this
ambiguity, we examined the scope, context and history of the relevant statutes.
See id. at 74-75. Having done so, the court concluded the following about
apparently competing provisions of WIS. STAT. ch. 346:

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To the contrary, rather than taking away rights of a
bicyclist operating upon a roadway, the legislature
explicitly gave to bicyclists operating upon sidewalks and
in crosswalks the same rules of right-of-way that had
previously applied only to pedestrians.

When read as a whole, we conclude that the
legislature … intended to create statutes applicable to two
different types of bicyclists—one that chooses to use the
roadway, as would any other vehicle, and another that
chooses to act as a pedestrian by riding upon sidewalks and
within crosswalks. The rules of the road, including rules of
right-of-way, may differ depending upon the capacity in
which the bicyclist chooses to operate. Namely, the statute
at issue in this case, [WIS. STAT.] § 346.25 … as well as
[WIS. STAT.] §§ 346.23-24 … were intended by the
legislature to be applicable to bicyclists acting in a
“pedestrian-like” capacity.

In contrast, as provided by [WIS. STAT.]
§ 346.02(4)(a), … where a bicyclist operates upon a
roadway, as would a motor vehicle, the rules governing the
rights and duties of a vehicle are applicable to the bicyclist.
Of course this general rule is “subject to special provisions
applicable to bicycles,” but only provisions intended to be
applicable to bicycles operating upon a roadway.

Chernetski, 183 Wis. 2d at 76-77 (emphasis added and emphasis in original
removed).

¶96 On appeal, Hodgson argues that WIS. STAT. §§ 346.02(4)(a) and
346.18 apply, and WIS JI—CIVIL 1153 should have been read to the jury.
Hodgson asserts that Zhu was riding her bike on a bike path that has a stop sign
directing traffic on the path to stop before crossing the intersecting roadway.
Also, Zhu was on her way to work at the time of the collision. From those
uncontested premises, Hodgson contends that it follows that Zhu was “operating
her bicycle on a roadway as a vehicle, not on the sidewalk as a pedestrian.” But,
Hodgson gives us only his conclusion and does not explain why his argument is
correct.

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¶97 Rather, the record establishes that Zhu was riding her bicycle not on
a roadway, but on a bike path for pedestrians and bicyclists, and was in a marked
crosswalk for pedestrians and bicyclists who were on the path. At the time of the
collision, Zhu was operating her bicycle within a marked crosswalk in a
“‘pedestrian-like’ capacity.” See Chernetski, 183 Wis. 2d at 77. Accordingly, we
conclude that, under the particular circumstances here, the right-of-way rule in
WIS. STAT. § 346.24(1) and (2) governs as the Estate contends and not the right-
of-way rule in WIS. STAT. § 346.18(3) as Hodgson asserts. See Chernetski, 183
Wis. 2d at 77.

¶98 Therefore, the circuit court did not err in denying Hodgson’s request
to read to the jury WIS JI—CIVIL 1153.

2. The Circuit Court’s Instruction that the Jury Should Presume
that Zhu Was Not Negligent.

¶99 Hodgson argues that the circuit court erred by reading to the jury
WIS JI—CIVIL 353. That instruction tells the jury that it must begin with the
presumption that a decedent was not negligent because the decedent cannot testify
at trial, but that the presumption may be overcome:

Because Emilly Zhu has died and cannot testify,
you must presume that Emilly Zhu was not negligent at and
before the time of the occurrence, unless you find the
presumption is overcome by other evidence.

In deciding whether Emilly Zhu was negligent, you
must weigh the presumption with all the other evidence.
Unless you are satisfied by the greater weight of the
credible evidence, to a reasonable certainty, that it is more
likely that Emilly Zhu was negligent, you must find that
Emilly Zhu was not negligent.

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¶100 Hodgson asserts that WIS JI—CIVIL 353 “only states what judges
and lawyers know is obvious: a party is not negligent unless there is evidence
indicating he or she is negligent” and that pointing the presumption out to the jury
“only served to confuse them by implying that Hodgson needed to prove
something more against Zhu.” We reject Hodgson’s argument for two reasons.

¶101 First, while Hodgson may be correct that judges and lawyers might
know that a party such as Zhu is not negligent unless evidence establishes
negligence, Hodgson gives us no reason to assume that this knowledge is uniform
among laypersons. We are not persuaded by Hodgson’s conclusory assertions that
the instruction “undoubtedly” confused the jury.

¶102 Second, in his reply brief, Hodgson asserts that the instruction does
not correctly state the law. In support, Hodgson points out that at least four states
have eliminated the presumption that, in a wrongful death action, the decedent is
presumed to have acted with due care when comparative negligence is at issue.
However, Wisconsin is not one of the states that has repudiated the presumption
and, to the extent that Hodgson is asking this court to change the law, it is not this
court’s place to do so. See Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 510,
80 N.W.2d 380 (1957) (recognizing the presumption) and Cook v. Cook, 208 Wis.
2d 166, 189, 560 N.W.2d 246 (1997) (explaining that only the supreme court is
vested with the power to “overrule, modify or withdraw language from a previous
supreme court case.”) Thus, the presumption remains the law of this state.

¶103 The circuit court did not err in reading WIS JI—CIVIL 353 to the
jury.

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E. Hodgson is Not Entitled to a New Trial in the Interest of Justice.

¶104 Hodgson argues that he is entitled to a new trial in the interest of
justice. The reasons put forth by Hodgson replicate his arguments which we have
addressed and rejected above. Accordingly, we conclude that justice does not
require a new trial in this case. See Mentek v. State, 71 Wis. 2d 799, 809, 238
N.W.2d 752 (1976) (“Adding [rejected arguments] together adds nothing. Zero
plus zero equals zero.”).19

II. The Estate’s Cross-Appeal.

¶105 The Estate cross-appeals issues related exclusively to IDS,
Hodgson’s liability insurer. The Estate argues that the entire judgment amount
imposed by the circuit court solely against Hodgson should have been imposed
jointly and severally against both IDS and Hodgson because IDS did not satisfy its
burden of proving the policy limits of Hodgson’s automobile liability policy with
IDS. For the following reasons, we reject the Estate’s arguments.

A. Standard of Review and Governing Case Law.

¶106 In Price v. Hart, 166 Wis. 2d 182, 480 N.W.2d 249 (Ct. App. 1991),
we summarized the law on this subject matter and a circuit court’s decision to
receive an insurance policy in evidence post-verdict:

[T]he supreme court has made it clear that if an insurer
pleads that its policy is limited as to the amount of
coverage but does not prove those specific limits prior to

19
The Estate cross-appeals against Hodgson and requests that, if we grant a new trial for
Hodgson, we should consider his challenges to various evidentiary rulings made by the circuit
court. Because we have not granted Hodgson’s request for a new trial, we need not reach the
Estate’s remaining arguments about evidence that the Estate contends should be admitted if a new
trial is granted.

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No. 2019AP1873

verdict, the [circuit] court has discretion to allow this proof
after verdict and to enter judgment in the amount of those
limits. However, it is also clear that if an insurer does not
plead or prove its policy limits prior to verdict or motions
on the verdict, the [circuit] court must enter judgment in the
amount of the verdict.

Id. at 190.

¶107 This issue also requires us to interpret an insurance policy.

Insurance contract interpretation presents a question
of law that is reviewed de novo. Danbeck v. Am[erican].
Fam[.] Mut. Ins. Co., 2001 WI 91, ¶10, 245 Wis. 2d 186,
629 N.W.2d 150; Smith v. Atl[antic]. Mut. Ins. Co., 155
Wis. 2d 808, 810, 456 N.W.2d 597 (1990). The same rules
of construction that govern general contracts are applied to
the language in insurance policies. Kremers–Urban Co. v.
Am[erican]. Emp[s]. Ins. Co., 119 Wis. 2d 722, 735, 351
N.W.2d 156 (1984). An insurance policy is construed to
give effect to the intent of the parties as expressed in the
language of the policy. Danbeck, 245 Wis. 2d 186, ¶10 ….

Therefore, the first issue in construing an insurance
policy is to determine whether an ambiguity exists
regarding the disputed coverage issue. Badger Mut. Ins.
Co. v. Schmitz, 2002 WI 98, ¶51, 255 Wis. 2d 61, 647
N.W.2d 223. Insurance policy language is ambiguous “if it
is susceptible to more than one reasonable interpretation.”
Danbeck, 245 Wis. 2d 186, ¶10 …. If there is no
ambiguity in the language of an insurance policy, it is
enforced as written, without resort to rules of construction
or applicable principles of case law. Id.; Hull v. State
Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 637, 586
N.W.2d 863 (1998).

Folkman v. Quamme, 2003 WI 116, ¶¶12-13, 264 Wis. 2d 617, 665 N.W.2d 857.

B. Additional Pertinent Facts.

¶108 We now set forth additional facts pertinent to IDS’s proof of its
policy limits.

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No. 2019AP1873

 IDS alleged in its answer that “[t]he policy was subject to terms and
conditions some of which limit the coverages provided. This
includes a limitation of $100,000 per person and $300,000 per
accident for bodily injury claims.”

 The entire IDS policy at issue was produced to the Estate by IDS
during discovery.

 At the final pretrial conference, without objection from the Estate,
the circuit court accepted into evidence the affidavit of an IDS
underwriting supervisor who attested that, attached to her affidavit,
was a “true and exact copy” of a portion of Hodgson’s auto liability
policy “which indicates the coverage and limits effective [at the
time of the accident].” Attached to the affidavit was the “Renewal
Declaration” which specified coverage limitations of “$100,000
each person” and “$300,000 each accident.” (Capitalization
omitted.)

 Also at the final pretrial conference, immediately after the court
accepted that exhibit, defense counsel stated: “The policy limits are
$100,000 per person. I don’t think there is any dispute about that,”
and then asked counsel for the Estate if counsel “agree[ed].”
Counsel for the Estate replied: “Correct.”

¶109 Following the jury’s verdict, the Estate filed a proposed order for
judgment in the amount of $5,486.506.48, plus interest and costs, jointly and
severally against both Hodgson and IDS. Counsel for IDS objected to the Estate’s
proposed judgment and requested that judgment against IDS be entered in the
amount of $100,000 pursuant to the IDS policy limits. In response, counsel for the

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No. 2019AP1873

Estate argued in a letter to the court that, although the circuit court had received by
stipulation a declarations page20 showing policy limits, IDS had not proffered to
the court at the time of the stipulation the entire insurance policy and “[n]o
insurance policy was ever admitted or stipulated to.” (Emphasis added.)

¶110 A hearing was held on the Estate’s proposed judgment. At the
hearing, counsel for the Estate contended that the declarations page from the
policy, alone, was not sufficient to prove the IDS’s policy limits because “whether
or not the limits of [$100,000 per person] would apply would be dependent on the
actual policy, which is not in evidence.” At the hearing, the circuit court received
into evidence the entire IDS policy. The court found that the Estate was not
prejudiced by the court doing so because the policy was exchanged during
discovery and, as a result, the Estate had notice of the terms of the IDS policy.

¶111 After reviewing the relevant language in the policy, the circuit court
determined that IDS’s policy limits applicable to this case were limited to
$100,000 as the Estate previously stipulated. Judgment was then entered by the
circuit court against IDS in the amount of $108,268.70, which included partial
costs and interest.

¶112 After the circuit entered judgment against IDS in the amount of
$108,268.70, IDS tendered the full amount of that judgment to the Estate. The
Estate refused to agree to a satisfaction of judgment based on that tender. IDS
filed a motion requesting an order for satisfaction of judgment, which the Estate
opposed. A hearing was held on IDS’s motion. The circuit court found that IDS

20
In counsel’s letter to the circuit court, counsel referred to the declaration page attached
to the affidavit submitted to the court as a “certification page.” This discrepancy makes no
material difference to our analysis.

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No. 2019AP1873

tendered payment of the $108,268.70 amount and entered an order that the
Estate’s judgment against IDS was fully satisfied.

C. Analysis.

¶113 The Estate argues that the circuit court erred in admitting the IDS
policy into evidence and concluding that the $108,268.70 amount tendered by IDS
to the Estate paid the full extent of the IDS policy limits. We reject the Estate’s
baseless arguments for four reasons.

¶114 First, the Estate entered into an explicit stipulation on the record in
court that there is no dispute that the policy limits for the IDS policy are $100,000
per person. See WIS. STAT. § 807.05.21 Counsel for the Estate did not qualify that
stipulation by stating that his agreement was only that the declarations page said
that the policy limits were $100,000 per person. Counsel for the Estate did not
qualify that there was any question about the policy limits based on the language
in the policy. Rather, there was an unqualified stipulation that the policy limits in
this IDS policy were $100,000 per person. Further, the Estate did not request to
withdraw the stipulation in the circuit court and does not request to do so now.
For those reasons, that stipulation binds the Estate, and IDS proved its policy
limits prior to verdict. See Price, 166 Wis. 2d at 190. This conclusion, alone, is
sufficient to reject Hodgson’s arguments on this issue.

21
WISCONSIN STAT. § 807.05 reads:

Stipulations. No agreement, stipulation, or consent
between the parties or their attorneys, in respect to the
proceedings in an action or special proceeding shall be binding
unless made in court or during a proceeding conducted under
[WIS. STAT. §§] 807.13 or 967.08 and entered in the minutes or
recorded by the reporter, or made in writing and subscribed by
the party to be bound thereby or the party’s attorney.

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No. 2019AP1873

¶115 Second, because IDS in its answer pleaded that its policy limited the
amount of coverage, the circuit court had the discretion to allow proof of the
policy limits after the jury’s verdict. See id. Here, the circuit court exercised that
discretion by allowing IDS to submit proof of the entire policy after the jury’s
verdict, and there is no basis to conclude that the circuit court erroneously
exercised its discretion in doing so.

¶116 Third, the Estate asserts that the circuit court’s admission of the IDS
policy was erroneous because the proof of the policy limits offered by IDS was
inadmissible hearsay. However, the Estate did not raise a hearsay objection to the
admission of the policy at the pertinent hearing. We reject that contention because
“[a]rguments raised for the first time on appeal are generally deemed forfeited”
and may be rejected on that basis. State Farm Mut. Auto. Ins. Co. v. Hunt, 2014
WI App 115, ¶32, 358 Wis. 2d 379, 856 N.W.2d 633 (quoted source omitted).

¶117 To the extent that the Estate argues that it preserved for appeal a
hearsay objection to the admission of the policy limit evidence submitted by IDS
at the post-verdict hearing, we reject the Estate’s argument. The Estate asserts
that, at trial, it “objected to the receipt of any evidence after closing.” More
specifically, during a discussion between the circuit court and counsel for the
parties regarding closing arguments, counsel for the Estate stated: “I am reserving
the right to object if I see something that I don’t think should be in [the defense’s
closing].” “I was objecting to [defense counsel] trying to admit anything into
evidence after closing.”

¶118 In order to preserve the right to appeal on a question of the
admissibility of evidence, a party must apprise the circuit court of the specific
grounds upon which the objection is based. See State v. Peters, 166 Wis. 2d 168,

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No. 2019AP1873

174, 479 N.W.2d 198 (Ct. App. 1991). General objections which do not indicate
the grounds for admissibly are not sufficient to preserve the objector’s right to
appeal. See id. To be sufficiently specific, an objection must reasonably advise
the circuit court of the basis for the objection. See id. The Estate’s non-specific
objection to “anything” defense counsel might attempt to admit after closing
arguments is not sufficiently specific to have advised the circuit court that the
Estate challenged the admissibility of the affidavit and attached policy submitted
by IDS on hearsay grounds. Accordingly, we conclude that the Estate has
forfeited that argument. See Hunt, 358 Wis. 2d 379, ¶32.

¶119 Fourth, the circuit court determined that, in reviewing the policy
language applicable to this case, the policy limit was $100,000, and we agree. The
Estate argues that the IDS policy language was ambiguous. In an attempt to
establish ambiguity, the Estate tries to take one sentence out of context. That one
sentence does not state that the liability policy limits on the declarations page
apply to payments IDS is required to make pursuant to the terms of the policy.
That one sentence, taken out of context by the Estate, does not establish ambiguity
on this point. The IDS policy is replete with clear statements and understandable
language that the policy requires IDS to pay for bodily injury liability caused by
an insured, and IDS’s payments will not exceed the maximum liability for that
damage shown on the declarations page. As a result, we conclude that the Estate’s
argument regarding the policy limits contradicts the express terms of the insurance
policy and for that reason we reject that contention. See Folkman, 264 Wis. 2d
617, ¶¶12-13.

¶120 In sum, we reject the Estate’s arguments and affirm the circuit
court’s order.

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No. 2019AP1873

III. IDS’s Motion for Fees and Costs.

¶121 During this appeal, IDS filed a motion requesting payment of its fees
and costs incurred regarding the Estate’s cross-appeal just discussed. IDS argues
that the Estate’s cross-appeal of the circuit court’s order of satisfaction is
frivolous.

¶122 For the reasons noted in the previous section of this opinion, we
agree with IDS that the Estate’s entire cross-appeal against IDS is frivolous. See
WIS. STAT. RULE 809.25(3). We conclude that the Estate’s attorneys knew, or
should have known, that the cross-appeal against IDS was without any reasonable
basis in law or equity and could not be supported by a good faith argument for an
extension, modification, or reversal of existing law. Therefore, we remand this
matter to the circuit court for a determination of reasonable appellate attorney fees
and costs for IDS regarding the Estate’s cross-appeal against IDS. We emphasize
that the award of costs and attorney fees shall be against the Estate’s attorneys
only.

CONCLUSION

¶123 For the foregoing reasons, the judgment and order of the circuit
court are affirmed and the cause is remanded with directions.

By the Court.—Judgment and order affirmed and cause remanded
with directions.

Not recommended for publication in the official reports.

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