Court Error – Failure to Mitigate Damages Evidence

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WI Court of Appeals – District I

Case Name: Acuity v. Bryan Michalak, et al

Case No.: 2015AP2487

Officials: Kloppenburg, P.J, Sherman, and Blanchard, JJ.

Focus: Court Error – Failure to Mitigate Damages Evidence

Robyn Swantz suffered a foot injury in a motor vehicle accident and, as a result, made a claim for insurance coverage against Acuity. At a jury trial, the only contested issue was the amount of Swantz’s damages for future expenses arising from the injury. The jury awarded Swantz damages at a level far less than that requested by Swantz. In this appeal, Swantz seeks a new trial, arguing that the circuit court erred in allowing the jury to consider evidence offered by Acuity of Swantz’s alleged failure to mitigate damages. The evidence involved a course of medical treatment recommended by an Acuity-retained physician, which Swantz did not follow. Acuity contended at trial that Swantz should have availed herself of the recommended treatment, which would cost less than the course of treatment that she had followed and planned to continue to follow under the advice of her treating physicians. We conclude that the court correctly applied controlling legal precedent regarding the role of juries in personal injury cases in deciding whether injured persons have acted reasonably in accepting or rejecting recommendations to submit to particular medical procedures that would allegedly mitigate their damages. Accordingly, we affirm.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.